1. Evidence is collected.

(This may consist of witness statements

documents photographs objects etc.) (Evidence that could have
been collected in the Donoghue case is the health inspectors report,
the doctors report, and bottle with snail. inspection of site.)
2. Evidence is adduced: calls witnesses and tenders documents in
support of the case.
3 Evidence is admitted/ excluded
Common law rules
Evidence law developed largely on common law basis and some
Australian jurisdictions still rely principally on colon law rules of
evidence. However most have legislated to systematize their rules
of evidence by statue
Even where statue prevails many common law rules and procedural
traditions still apply.
Also particular areas of law incorporate rules of evidence E.g. Parole
evidence rule in contract; res ipsa loquitur in tort etc.
Uniform Evidence Law (this consist of mirror legislation with only
minor variations)
Clth act applies to federal courts and ACT courts, until an ACT act
comes in to place.
State acts apply to state courts
Amendments
- 1997 NSW added some stuff on confidential communications
privilege and sexual assault communications privilege.
- Journalists privilege was incorporated in the Commonwealth
version in
Most substantial amendments followed with a major review of UEL
in 2005
(see Odgers for summary of changes
(Amendments to Clth in 2008) common to force in Jan 2009)
Ammendements came in to force in Jan 2009)
Application of UEL
What determines which act applies depends on the which court it
is.
1 Commonwealth and AC courts: Evedence at 1995 apples( CLth
applies to all proceedings in a federal or ACT court, incuding (s4)
-Bail, interlocutory hearings
_Specified provisions of the Act Eg Commonwealth records apply to
all Australian courts. S 5
Dictionary (see s3) to evidence act 1995 (Clth)
Federal court Means the HC or other court created by the Clth
parliambt expert territory supremen courts Eg the federal court

deferral magistrates court and family court are all federal courts
under the ecedece act 1995 (Clth)
This includes tribunals unless exempted from applying laws of
evidence Eg Administrative Appeals tribunal, Refugee Review
Tribunal are exempted.
ACT Court maens ACT supreme court or other ACT court Eg. Act
magistrates court, Act Childrens Court, Act coroners court.
Australian court is defined to include federal, state/ territory courts,
judges bodies or persons making adjudications under law.
From Mar 2011 the evidence act 2011 apples to all proceedings in
an act court
S4 defines as the Supreme Court
Note the Clt Act also applies to external territories but the ACT act
applies in Jervis Bay unde s4a
NSW Court
Nsw act applies in Nsw. This incules NSWE SC or any other court
created by the NSW parliamanet Eg NSW district court, NSW
magistrates court, NSW court of criminal appeal, drug court, land
and environment court.
Intepreting the UEL
Note the sictionary to ecidence act and the
UEL is not a code.
Evidece la does not necessarily exclude other statutory or
commonon law principles
Evidece ACT 1995 s8 and s9 make provision for the preservation o f
various clth, state and territory laws in realtion to proceedings
Other UEL actice acts s9 provides that the act does not affect the
oeration of a principle or rule of common law or equity so far as in is
consistent with the act
Acc UEL evidence acts s11 preserves the general powers of courts
to control the conduct of court proceedings including inherent
powers to prevent the abuse of process.
IN all UEL S26 allows a court to make such orers as it considers just
in relation to the questioning of witnesses
Evidence act 1996 Clth s140(2) standard of proof for civil
proceedings provision has been interpreted as allowing resort to
common law prinplciles aslo under the Clth act: Booth v Bosworth
[2001] FCA 1453. Per branson J at 40
Case concerned the appliacation of federal environment laws. It
concerned the appliacnts assemsnet of the number of dead fruit
bats. The ocurt tuned to the standard of proof for civil proceedings.

Papakosmas v The Queen. Sexual assault case.

Per Gleson CJ and Hayne J if the act prupots to deal with a subject
then other matters are excluded and the evidence act prevails.
Ellis v The Queen. Per Kirby the evidence law was made so we dont
have to carry out huge tomes of

Week 1 Lecture 2
S 14 Reduced capacity : Eg Linguistic incapacity where it might cost
a
S17 f Defedents are beig tried separately they can give evidence
agaist each other, but not otherwise. Can also give evidence for the
defence.
R v YL Prosecution alleged the child was the victim of abusive
behavior by the step mum. The child did not want to give evidence.
Prosecution wanted the evidence because there was no other way to
get that evidence. The child had separate representation.
Representations were made that the childs relationship would be
harmed. The judge allowed the child not to give evidence.
Who gives evidence and which evidence
-Prosecution has to call on all witnesses including those who dont
want to giv evidence or who may not give truthful evidence (R v
Apostilides (prdates evidence act) both drinking together with As
firend and Bs friend tibbles. Brody and Tibbles left. A replied this is
a job for judge and jury I am not saying anything. These two friends
werent called to give evidence. Because prosecutor thought that
oone of them was in love with the defendant and the other was a
friend with criminal past who couldnt be rieled on to help. The HC
said it wouldnt appeal and said (if there is a failure to call a witness
Jones v Dunkel.
involved road accident on hume highway where the highway used to
run as an undived road through. It was unclear wht had happened
one of the drivers had died. There were other witnesses other than
the sirving driver. He was the employee of defendant Dinkel. D as
being so negligence. Little evidence available from the secene. The
evidence given by Higgins was vague. Defence said they wouldnt
call any witnesses. Before deliberating one juror asked asbout the
failure of the D to give evidence. Juror asked whther he could regard
the abseces of Higgins as a weakness in the defednants case. Judge
didnt clarify the issue. On appeal HC said that Pg 320 CLR failure to
bring forward evidence allows an inference that unless the
In criminal prceedings Jones v Dunkel appled mostly to the
prosecution. The defendants have a right to silence, none theless
inferences can be made in respect of the failure of the defendant to
give evidence about facts peculiarly within his knowledge
Weissenteiner v The Wueen
W concived tof murder of 2 people. W answerd ad and became a
shiphand. For 8 months the Emanuels sailed around the pacific. Only
the appelent was contactableon the baot. At his trial W did not
testify. Judge instructed jury about what could be inferred from this.
Appelant told inconsistent stories about how he got the boat but he

always maintained he knew whether the ownders were. The HC said

that the fact the D has unique knowledge he is not willing to provide
can be used as the baiss of an inference that assits the jury to reach
a verdict but cant make up a deficienty in the prosecutors case
To what extend does section 20 abbrogage the common law it was
dealt with severalc ses. It appears theat s20 inrespect of W kind of
cases and the accused fails to ive evidence an adverse inference is
available and judge can assist the jury
Division 3 General rules about witnesses giving evidence.
Evidence in Chief
Cross examiniation
Reexamination
Courts do have power to call witnesses themselves. In exceptional
cases. Sharp v

7
Makita (Australia) v Sporwles) expert on the slipperiness of
stairs. Found that stairs would be dangerous and the accident was
caused by slippery stairs.)
Process
1 expert witnesses often qualified. (asked to give quallifications)
what is the qualification of