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3.2 Trial Process--Leading Contradictory Evidence

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Leading Contradictory Evidence T HE FINALITY R ULE Finality rule  Cannot contradict evidence of witness on a collateral issues (=credit): o Q on credit → denied → cannot ask other witnesses the same question o Can continue to XE same witness on same point Piddington v Bennet and Woods (negligence—eye witness said had just been to the bank = not true  presence is a fact in issue—but reason for presence merely to credit → could not contradict || Cf. if was denying ability to see—would be relevant to the facts: per Latham J) Collateral Issues  Collateral issues— o Credibility of witnesses o Admissibility of evidence o Judicial discretion  Fixed test of relevance— whether rationally affects probability of facts in issue, as a matter of common sense and experience: Nicholls o Cf. Previously—flexible standard ← difficult to determine whether a piece of evidence is collateral or not: Goldsmith v Sandilands Not Collateral o If relates to presence and capacity of a witness to observe the events that relate to the fact in issue: Latham J in Piddington v Bennet and Woods (eye witness—but reason for presence (banking cheque) merely to credit → could not contradict || Cf. if was denying ability to see—would be relevant to the facts) o so connected with the issues that you would be able to give it in evidence: AG v Hitchcock. o If presents an alternative hypothesis: Wakeley & Bartling (possession of heroin— defence in cross-exam sought to establish that one of other officers at raid died of heroin shortly afterwards  relevant to probability that accused had possession of the drugs → not collateral → could be challenged) o Affect the likelihood of the allegations: Goldsmith v Sandilines (MVA in same car—negligent party attempting to show that injury sustained from indoor cricket—said that picked him up from cricke not collateral) Collateral o Reason for being at the scene: Piddington v Bennet and Woods o If facts in a sequence unrelated, then collateral, merely to credit: Hadlow (murder of baby—daughter for Crown saying she used the sheets with vomit on them | gave them to parents—put to her that never used the sheets  whether used does not rationally affect probability that later gave to parents → only to credit → could not contradict) Andrew Trotter LWB432 Evidence EXCEPTIONS Exceptions: Goldsmith v Sandilines per McHugh J  Prior convictions shedding light on character o Originally perjury etc but now expanded to other offences  Bias, partiality or interest  Prior inconsistent statements  General bad character  Physical and mental unreliability  Corrupt motives Bias, partiality or interest of the witness [→ also prove by PIS] = reasonable possibility that a witness is biased in favour of the party calling them or against the other party  Includes bribery, fear or blackmail → May call evidence that they are biased if they reject the suggestion Umanski (sexual assault of daughter—wife testifying—allegations that biased because husband was cheating on her & wanted to get money out of husband—accused would testify as to PIS of wife  motives of wife not directly relevant to guilt of husband—BUT evidence of bias → PIS can be proven under CL—merely evidence of bias not of truth of statement as per s17 || VCA found not biased—but dodgy decision) Mental or physical instability/unreliability  Medical evidence showing abnormality of mind affecting reliability of evidence: Toohey v Metropolitan Police Commissioner; approved by Farrell v The Queen (evidence admissible if relevant to reliability of witness‟ evidence)  Time of condition— o At time of event → may become an issue in the case (like in Toohey) o Time of trial → go to credit Corrupt Motives [→ also prove by PIS]  If witness testifies from corrupt or wrong motives → can be cross-examed about them and evidence can be called to support the assertion: R v Nicholls (murder—allegation that police bribed witness to testify against accused  corrupt motive = not collateral issue, could be contradicted || BUT Browne v Dunn not complied with—to bring other witness to testify about PIS must give actual specific circumstances of how PIS made, etc)  Strict rule—Specific circumstances must be mentioned: Browne v Dunn; R v Nicholls Witness’ general bad character Witness denies that they are lying → rebutting witness may be called to give evidence that the impugned witness has a general reputation for bad character.  BUT rebutting witness may not be asked in EIC about any particular facts or incidents upon which that opinion is based: R v Richardson and Longman Andrew Trotter LWB432 Evidence Prior Inconsistent Statements  Can be proved as of right in cross-exam (cf. s17 in examination in chief re hostile witnesses)  Not on a voir dire—proven in front of the jury Relevant to Fact in Issue (finality rule does not apply): s18 In XE, PIS can be raised and proven as of right if— (s18) 1. PIS relates to facts in issue: (“relative to the subject matter of the proceedings”) o Therefore PISs going to collateral issues ie. credit, bias etc will have to satisfy the CL rules (collateral finality rule below). 2. witness does not distinctly admit making the former statement o Must unequivocally say that they made it: Mursic (lighting wife on fire—by trial wife reconciled with husband—called by defence—in XE R brought PIS to police | said “if this or that appeared in the statement then I must have said it to police” | but said just upset at the time  did not distinctly admit—just inference drawn that it is in existence → proven via s18 → proof of facts)  witness must be asked whether they made the statement: s18(2) QEA o Reflects the rule in Browne v Dunn (duty to warn a witness if you are going to refute or contradict their evidence by other evidence)  Effect of proving—evidence of truth of statement: s101(1)(a) QEA (Where … proved by virtue of section 17, 18 or 19 … admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible) o Not hearsay: s101(1)(a) QEA  Weight determined considering— (s102) o Whether statement contemporaneous with facts o Whether maker of statement had any incentive to misrepresent or conceal the facts BUT rule against Crown reopening case [→ evidence in rebuttal]  If a defence witness making the PIS—Crown not allowed as of right to proceed to prove because of general rule that R cannot reopen their case: Shaw. Must consider— (R v Neville (GBH in company—PIS of companion—R sought to call police to prove  not allowed)) o Nature of evidence given by witness o Circumstances & reliability of PIS  If PIS previously shown to be unreliable, R will probably not be allowed to proceed to prove: R v Neville (GBH in company—PIS of companion = confession—O previously acquitted=confession rejected  PIS unreliable → R not allowed to reopen) o Whether fair to allow statement to go into evidence at such a late stage  especially since would be proof of truth of its contents: s101 QEA If elements fail → only relevant to credit (1) Collateral Issue (exception to finality rule): Goldsmith v Sandilines  s18 does not apply as not „relative to the subject matter of the proceeding‟  Still admissible as an exception to the finality rule: Goldsmith v Sandilines  Only relevant to credit as s101 does not apply (2) Witness admits to making PIS  Goes only to the credit of the witness (not „proving by virtue of s18‟, so not evidence of truth of statement under s101 QEA)  The jury must decide which of the stories they believe (or neither)  If made because of threats etc → can repair credit of witness in re-exam: Singleton Andrew Trotter LWB432 Evidence Written PIS—Requirement to Show Document (can be cross-examined on written PIS—can only XE if hostile)  s19 overrides CL where written PIS o Made by witness; and o Relevant to facts in issue → need not show doc  Otherwise apply CL position: Rule in Queen’s Case → must show doc Made by witness & relative to facts in issue: s19 A witness may be cross-examined as to a previous statement  made by the witness in writing or reduced into writing  relative to the subject matter of the proceeding without such writing being shown to the witness  Can be cross-examined without showing the document if— (s19(1)) 1. Document made, verified or adopted by witness Proving Signature  By the party‟s
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