Uniform evidence law

91 Pages·2012·50.244 MB·English

by  Elisabeth Peden

Uniform Evidence Law
ACT, Cth, NSW, Tas & Vic
Elisabeth Peden • Miiko Kumar
Concise summary of the key cases of uniform evidence law
'
LexisNexis Case Summaries so that the principles can
- Uniform Evidence Law be readily understood and
provides a conci~e summary of memorised. The cases have
• • • • • • • • • • • • • • • • • •
the key cases in evidence law been selected to align with
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for states that have adopted
current teaching in uniform
the Uniform Evidence Act, • • • • • • • • • • • •' • • • • • •
evidence law.
namely the Australian Capital • • • • • • • • • • • • • • • • • • • •
Territory, the Commonwealth, An excellent study and • • • • • • • • • • • • • • • • • • •
New South Wales, Tasmania revision resource for students, •••••••••••••••••••
and Victoria. this book is a great quick •••••••••••••••••••
The new design of this popular reference for anyone wanting •••••••••••••••••••
text highlights the facts, issue to understand the case law in •• •••••••••••••••••
•••••••••••••••••
and decision in each case this area. ,••, •••••••••••••••••
Related LexisNexis Titles
• Anderson, Williams & Clegg, The New Law of Evidence, 2nd ed,
• Field, LexisNexis Questions & Answers - Uniform Evidence Law
• Ligertwood & Edmond, Australian Evidence,
5th ed, 2010
ISBN 978-0-409-
• Peden & Kumar, Quick Reference Card -
Uniform Evidence Law, 2011
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Author: Peden, Elisabeth.
Title: Uniform evidence law. 15 Baker v Campbel.l 10
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9780409332582 ( ebook).
Series: LexisNexis Case Summaries. 18 Bromley v R 11
Notes: Includes index. 19 '-._Browne v Dunn 12
Subjects: Evidence (law) - Australia - Cases.
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Other Authors/Contributors: Kumar, Miiko
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iii
Contents
LexisNexis Case Summaries
Case Number Case Name
Case Number Case Name """"
30 Commonwealth v Northern Land Council 19 61 Green v R ' 39
31 Corke v Corke and Cook 19 62 Gregory v R 40
32 Cornwell v R 20 63 Harriman v R 40
33 Corp~t;_e Affair-s Commission (NSW) v Yuill 21 64 1}.arris v R 41
--21 65 Heatherington v R 41
34 Dasreef Pty Ltd v Hawcha
35 Derbas v R 23 66 The Henry Coxon 42
36 Director-General, Department 67 Heth.e1in~on v Brooks " 42
of Community Services v D 22 68 HGvR 43
37 Director of Public Prosecutions v Carr 24 69 Roch v R 44
38 Director of Public Prosecutions 70 Holland v Jones 45
v United Telecasters Sydney Ltd 25 71 Hollingham v Head 45
39 Domican vR 25 72 Hollington v Hewthom 46
40 Doneyv R 26 73 Homa! v Neuberger Products Ltd 46
41 Donnini v R 27 74 Jones v~nkel 47
42 Drabsch v Switzerland General 75 <!.illYv R 47
Insurance Co Ltd 27 76 #Kilby v R 48
43 Driscoll v R 28 77 Killick v R 48
44 Dyers v R 28 78 Kozul~ R • 49
45 Eastman v R 29 79 Lee v R \ 49
3 o
46 Edwa;ds v R 80 Libke v R 50
47 Edwards v R 31 81 Lithgow City Council v Jackson 51
48 Em vR ·"! 31 82 " Longman v R 51
49 Environment Protection Authority 83 Lowery v R 52
v Caltex Refining Co Pty Ltd 32 84 Lustre Hosiery Ltd v York 53
50 Essa Australia Resources Ltd v Federal _,,.- . 85 D F Lyons v Commonwealth Bank of Australia 53
Commissioner of Taxation ,_ 32
86 MvR 54
51 Farrell v R 33
87 MacPherson v R 54
52 Field v Commissioner for Th
88 McDermott v R 55
Railways (NSW)
53 Fingleton v Lowen 34 89 McKinney vR 55
54 Foster v R 34' 90 Mclellan v Bowyer 56
55 GvR 35 91 Makin v Attorney-General for New
South Wales 56
56 Goldberg v NG 36
92 Makita (Australia) Pty Ltd v Sprowles 57
57 Gonzales v Claridades 37
,, 93 Mann v Carnet!· 58
58 GPI Leisure Corporation Ltd v Herdman ...,, 94 '-Maves v Grand Trunk Pacific Railway Co 58
nvestments (No 3) ~-
\: 8~ 95 May v O'Sullivan 59
59 Graham v R
60 Grant v Downs 39 96 Melbourne v R 59
v
iv
Contents
LexisNexis Case Summaries
Case Number Case Name
Case Number Case Name
60 134 R v Birks 84
97 Mickleberg v Director of the Perth Mint
61 135 R v Blastland 85
98 Mundey v Askin
61 136 R v Braham and Mason 85
99 Murdoch v R
62 137 R v Burt 86
100 Murphy v R
101 MW]vR 63 138 R v ~Cassar; R v Sleiman 86
102 National Australia Bank v Rusu 64 139 ~vChin 87
64 140 R v Christie 88
103 ~atta v Canham
65 141 R v Clark 88
104 Nicholls v R; Coates v R
65 142 R v Clune (No 1) 89
105 N ickisson v R
66 143 R v Correia 89
106 Nominal Defendant v Clements
67 144 R v Da Silva 90
107 O'Leary v R
108 Ordukaya v Hicks 6,..7.. ~ ~ 145 R v Dann 90
68 146 R v Darrington and McGauley 91
109 Palmer v R
68 147 R v Dixon 91
110 Papakosmas v R
111 Payless Superbarn (NSW) Pty Ltd v O'Gara' 69 148 ~ v Ellis 92
70 149 ; R v Esposito 93
112 Perry v R
113 Petty and Maiden v R 70 150 R v Freeman 94
71 151 RvGAC 94
114 Pfennig v R
72 152 R v Gallagher 95
115 Philli s v R
\ 73 153 R vGilmore 96
116 Picker v R
'-73 154 R v Golightly 96
117 Piddington v Bennett and Wood Pty Ltd
74 155 R v Harrison 97
118 Plomp v R
119 Police v Jervis; Police v Holland 74 156 R v Hogan 97
75 157 R v Horton 98
120 Pollitt v R
76 158 R v Horvath 99
121 PQ v Australian Red Cross Society
77 159 R v Khan 99
122 Price v Bevan
123 Purkess v Crittenden 77 160 '--R v Kneebon0 100
124 Pyneboard Pty Ltd v Trade Practices Commission 78 161 R v Lawren-.. ce 101
78 162 ( RvLe 101
125 R v Abadom
79 163 R v Lee 102
126 R v Adams and Ross
79 164 R v Lisoff 102
127 R v Alexander and Taylor
8 165 R v Lock 103
128 R v Andrews
l§_l 166 R v Lockyer 104
129 R v Apostilides -..
130 \. R v Baskerville 81 167 '---R v Lodhi 105
82 168 R v Lozano '-105
131 RvBD
82 169 R v Martin 106
132 R v Beattie
83 170 R v Mendy 107
133 R v Benz
vii
vi
LexisNexis Case Summaries Contents
Case Number Case Name Case Number Case Name
......... '
171 R v Mil;> 107 \ 208 R v Wright 130
'-
172 I\vMila/ t 108 209 RvZ 130
173 R v Moghal 109 210 R v Zurita) 131
174 R v Murphy 109 211 Ratten v R 131
175 R v Nation 110 212 Reid v Howard 132
176 R v Pachonick 110 213 Ridgeway v R 133
177 R v Pantoja 111 214 Robinson v R 134
178 R v Parker 111 215 Robinson v Woolworths Ltd 134
179 R v Peake 112 216 Rodgers v Rodgers 135
180 R v Perrier (No 1) 113 217 RPSvR 135
181 R v Pfi.tzner 113 218 Sankey v Whitlam 136
182 R vPJE 114 219 Shepherd v R 137
183 RvPKS 115 220 Shoshana Pty Ltd v 10th Cantanae Pty Ltd 137
184 R v Reeves 116 221 ~mith v R 138·
185 R v Roads 116 222 Song v Ying 139
186 R v Rogers 117 223 Sorby v Commonwealth 139
,#
187 R v Rowton 117 224 Stanoevski v R 140
188 R v Runjanjic 118 225 State Govervment Insurance Commission
189 R v Sandford 118 v Laube 140
190 R v Shamouil 119 226 Stubley v Western Australia 141
191 R v Smith 120 227 \.. Subramaniam v Public Prose~utor 142
192 R v Sood \.. 120 I 228 Suresh v R - 142
193 R v Stephenson 121 229 TvR 143
194 R v Swaffield; Pavic v R 122 230 TKWJ v R • 143
)
195 R v Szach 123 231 T and Director of Youth and Community
Services, Re 144
196 R v Tang 123
232 Thomas v David 145
197 R v Thynne 124
233 Thomas v State of New South Wales 145
198 R v Titijewski 125
234 Thompson v R 146
199 R vTrimboli 125
235 Thompson v R 146
200 R v Turnbull 126
236 Tofi.lau v R 147
201 R v Umanski 126
237 Trade Practices Commission v George Weston
202 R v Urbano 127
Foods Ltd (No 2) 147
203 R v Van Beelen 127
238 Trade Practices Commission v Sterling 148
204 R v Von Einem 128
239 Tsang Chi Ming v Uvanna Pty Ltd (t/as North
205 R v Ward 128 West Immigration Services) • 148
206 R vWelden 129
240 Tully v R 149
207 R v Winfield 129
viii ix
LexisNexis Case Summaries
Case Number Case Name Uniform Evidence Law
241 Urban Transport Authority ofNSW
v Nweiser 150
242 Van Beelen, Re 151
[1] ABORIGINAL SACRED SITES PROTECTION
243 Van Den Hoek v R 151
AUTHORITY v MAURICE
244 Velevski v R 152
(1986) 10 FCR 104; 65 ALA 247
245 Wakeley vR 153
Federal Court of Australia (Full Court)
246 Walton vR 153 •
247 Weal v Bottom 154 Public interest immunity
248 Webb v R 155
FACTS The Aboriginal Land Commissioner issued orders for the
249 Weissensteiner v R 155 production of documents prepared by anthropologists and others in
250 Welsh v R 156 connection with a claim to have certain sacred sites recorded. The
251 Wentworth v Rogers (No 10) 157 Aboriginal Sacred Sites Protection Authority resisted the production of
252 Williams v R q57 the documents prepared by its employees or persons under contract to it,
on a claim of public interest immunity.
253 Woods v Multi-Sport Holdings Pty Ltd 158
254 Woolmington v Director of Public Prosecutions 158 ISSUE Did public interest immunity apply?
255 Woon vR 159
DECISION !~determining whether public interest immunity is attracted
256 Yildiz v R 159 in a case not involving the higher levels of government, confidentiality of
257 Zaknic Pty Ltd v Svelte the material is not sufficient ~n its own, though it may be of significance.
Corporation Pty Ltd 160 The fact that disclosure may dry up a source of information is also
258 Zoneff v R 161 significant, especially where the information is necessary for a statutory
body to perform its functions. In this case, the balance was in favour of
disclosure subject to orders for restricted access to the documents.
[2] ADAM v R
(2001) 207 CLR 96; 183 ALA 625
High Court of Australia
Relevance - Credibility-Hearsay-'Fresh in memory' exception
FACTS Adam was convicted of murdering a police officer. The appeal
centred on the evidence given by a witness during a police interview,
which he then refused to repeat in court.
ISSUE Were the statements made in the interview admissible?
DECISION The statements were relevant in terms of credibility
and also their hearsay purpose. They showed that the witness had
made previous inconsistent statements. Evidence Act 1995 (NSW)
s 102 provided that evidence that is 'relevant only to a witness's
credibility' is not admissible. The evidence was not admissible through
an exception to the hearsay rule (Evidence Act 1995 s 66), as there
x
LexisNexis Case Summaries Uniform Evidence Law
was no finding of 'fresh in memory'. However, the evidence was not [4] AINSWORTH v BURDEN
rendered inadmissible under s 102 because there was 'relevance' for the [2005) NSWCA 174
hearsay purpose even if the evidence was not admissible. However, once Supreme Court of New South Wales, Court of Appeal
the statements were admitted for the credibility purpose, in applying
Lee v R (s 60; see [79]) the statements could also be used to prove the Discretions - Prejudice
existence of the facts asserted in the police interview. Following this
FACTS In an action for defamation based on a letter, the defendant filed
decision, s lOlA of the Act was introduced.
defences of, inter alia, truth and qualified privilege. The plaintiff filed a
reply alleging malice in response to the defence of qualified privilege.
[3] AHERN v R As the publication had taken place before the provisions '1f Defamation
Act 1974 (NSW) s 7A came into operation, the whole action was heard
(1988) 165 CLR 87; 80 ALR 161
by a jury. At trial, the plaintiff sought to tender, in support of his reply,
High Court of Australia
five judgments of the Licensing Court that accepted that the plaintiff
Conspiracy - Co-conspirator rule - Hearsay was a fit and proper person and which granted the gaming licenses
sought, together with the senior detective's report of the investigation
FACTS The applicant was convicted of one count of conspiracy to into the allegations made by the defendant in his letter to the Police
defraud the Commonwealth, the case against him being that he had
Minister. The jury rejected the allegations made by the defendant.
knowingly participated in a scheme to evade the payment of income
The inference was that the defendant was aware of the contents of those
tax. At the trial, the applicant admitted the existence of a conspiracy to
documents. The plaintiff's case was that they demonstrated malice on
defraud the Commonwealth, but his defence was that what he had done
the part of the defendant by his persistence in asserting the truth of his
formed no part of any scheme to engage in fraudulent conduct. The trial
allegations in*i:he face of their constant rejection, after investigation, by
judge directed the jury to have regard first of all only to the evidence
the Licensing Court and in the subsequent investigation. Pursuant to
'directly admissible' against the applicant, to determine whether there
Evidence Act 1995 (NSW) ~ 135, the trial judge rejected the contents
was a prima facie case that the applicant was a party to the conspiracy; if
of the documents because the jurors would have found it 'practically
the jury was satisfied that there was prima facie proof of the applicant's
impossible' to put the documents out of their mind when considering
participation, it might then look at all the evidence.
the defence of truth - and even when that defence was withdrawn -
because truth and falsity remained relevant.
ISSUE Was the issue of admissibility of evidence going to the accused's
involvement in the conspiracy an issue for the trial judge or jury?
ISSUE Should the evidence have been excluded as prejudicial pursuant
DECISION 'Where an accused was charged with conspiracy, evidence in to Evidence Acts 135?
the form of acts done, or words uttered, outside his presence by a person
DECISION The trial judge wrongly interpreted the term 'unfairly
alleged to be a co-conspirator would only be admissible to prove the
prejudicial' in s 135. Evidence that strengthens the other party's case
participation of the accused in the conspiracy where it was established
is not unfairly prejudicial. Instead, it is evidence that is unfair, because
that there was a combination of the type alleged; that the acts were done,
there is a real risk that the evidence will be misused by the jury in
or the words uttered, by the participant in furtherance of its common
some unfair way. The rejection of the documents was wrong.
purpose and there was reasonable evidence, apart from the acts or words,
that the accused was also a participant ... The trial judge ought to have
decided for himself the question of whether there was independent [5] ALBRIGHTON v ROYAL PRINCE ALFRED HOSPITAL
evidence of the participation of the accused in the illegal combination [1980) 2 NSWLR 542
sufficient to let in, against him, evidence of the acts and declarations
Supreme Court of New South Wales, Court Of Appeal
of the other participants in further proof of that participation. That
question ought not have been left to the jury.' Cross-examination - Questions by counsel
FACTS In this civil case, the plaintiff's expert witness faced two days of
extremely hostile cross-examination, including being called a liar and
being shouted at.
2 3
LexisNexis Case Summaries Uniform Evidence Law
ISSUE What are the limits of appropriate cross-examination? [7] APOLLO SHOWER SCREENS PTY LTD
v BUILDING AND CONSTifuCTION INDUSTRY
DECISION The purpose of cross-examination is to elicit facts or
LONG SERVICE PAYMENTS CORP
opinions, test facts or opinions, and test credibility. This should be done
(1985) 1 NSWLR 561
without insulting or offensive language. The privilege of counsel to use
Supreme Court of New South Wales
language in court that would not be tolerated out of court is only justified
when the ends of justice require it, which would be rare. Counsel should
Proof - Civil burden
not harass witnesses until pulled up. However, the presiding judge has
the power and the duty to protect the witness. FACTS The corporation administered long service leave entitlements
to temporary workers in the building and construction•industry. The
issue was whether Apollo was in breach of the scheme. That turned on
[6] ALEXANDER v R
whether workers who installed shower screens and wardrobe doors were
(1981) 145 CLR 395; 34 ALR 289 'within the industry'. The statutory definition was whether the work was
High Court of Australia of a kind usually performed by a carpenter.
Identification - Photographs - Hearsay ISSUE What was the evidential burden for the plaintiff in a civil case?
FACTS Identification was the key issue in Alexander's trial for trespassing DECISION The work done was not within the industry, because these
with intent to steal. Several witnesses gave evidence identifying screens and doors are usually installed by the manufacturers, not building
Alexander as the person they saw in circumstances connecting him with workers. The plaintiffs had to prove a negative proposition - that the
the crime. Each of the witnesses had first identified him by looking at a class of work-that includes the installation of prefabricated shower
folder containing about a dozen photographs. No identification parades screens is not'usually performed by a carpenter. Provided the plaintiff has
were conducted. One witness recalled selecting a particular photograph established sufficient evidence from which the negative proposition may
when asked to do so by police but could not recall which photograph. be inferred, the defendant ca\'rier has what has been called an evidential
A police officer then gave evidence that the photograph selected by the burden to adduce any particular matters that the plaintiffs would have to
witness was one of Alexander. deal with in the discharge of their overall burden of proof. It is similar to
the evidential burden placed on an accused in a criminal trial who seeks
ISSUE Was the evidence of the police officer regarding the selected
to raise the issue of self-defence, which the Crown must then disprove.
photo admissible?
DECISION Although the dangers in using photo identification may be
[8] ASLETT v R
unjustifiably high where an identification parade is feasible, there is no
[2006] NSWCCA 49
rule that photo identification made during the evidentiary process should
Supreme Court of New South Wales, Court of Criminal Appeal
usually be excluded as a matter of discretion. Where a witness is able to
testify that they identified someone as the criminal, it is permissible for
Cross-examination - Evidence Act 1995 (NSW) s 43
another person who was present at the time to give evidence that the
accused's photograph was identified, notwithstanding that the witness FACTS The accused broke and entered a home and robbed the premises
is unable to recall who was identified, or which photograph they had 'in circumstances of aggravation' in the company of three others. Further,
selected, and that they are unable to identify the person in the dock as he was charged with forcing the complainant, aged 16, to have sexual
the criminal. intercourse without her consent and deprived her of her liberty. The
accused was convicted and appealed on a number of grounds, including:
the trial judge failed to give an adequate warning; there was inadmissible
identification evidence; and the trial judge erred in allowing into
evidence previous inconsistent statements of one of his accomplices in
the robbery.
ISSUE The operation of Evidence Act 1995 (NSW) s 43.
4 5
LexisNexis Case Summaries Uniform Evidence Law
DECISION Section 43 imposes procedural requirements on a cross made by a public authority for the ~rpose of obtaining advice or
examiner in circumstances where the cross-examiner wishes to adduce assistance to exceed its statutory powers.
evidence of a previous inconsistent statement and the witness does not
admit making the previous inconsistent statement. If a party wants
[1 O] AUSTRALIAN CRIME COMMISSION v STODDART
to adduce evidence other than from the witness, then s 43 requires
the party to draw the witness's attention to the circumstances of the (2011) 282 ALR 620
statement so that the witness can identify it and the inconsistency the High Court of Australia
cross-examiner is asserting. The purpose of s 43 is to ensure the witness is
Privilege - Spousal privilege
fairly dealt with. However, the section does not have anything to do with
the uses for which the statement can be made - those are dealt with by FACTS Stoddart was summoned to be examined purluant to the
Evidence Act ss 103 and 60. A witness who had knowledge of the events Australian Crime Commission Act 2002 (Cth) (ACC Act). In the
giving rise to the charges and was probably concerned in them made a course of answering questions about her husband's business activities,
statement that assisted the prosecution. At trial, it was apparent that this Stoddart claimed 'the privilege of spousal incrimination' - the right to
accomplice witness was unwilling to assist the Crown by giving evidence not give evidence that might incriminate her husband. The Evidence
in accordance with the statement. The Crown obtained leave under s 38 Act 1995 ( Cth) does not apply to an examination under the ACC Act.
to cross-examine him. He denied the previous inconsistent statement,
having been alerted to its contents. His statement was tendered on the ISSUE Could Stoddart claim the privilege of spousal incrimination?
question of his credit and was admitted by virtue of s 103. The effect of
DECISION Stoddart was a competent witness to be examined under the
s 60 was to make the contents of the previous statement available to
ACC Act, and she was compelled by that Act to be examined. There
prove the truth of the assertions in it. The appeal on this ground failed.
was no basis f~r a conclusion that the privilege of spousal incrimination
could be raised in response to that obligation. Heydon J (in dissent)
held that the ACC Act had.not abrogated spousal privilege, which is
[9] ATTORNEY-GENERAL {NT) v KEARNEY
recognised a rule of substantive law in the common law, therefore the
(1985) 158 CLR 500; 61 ALR 55
privilege survives.
High Court of Australia
Privilege - Legal professional privilege [11] AUSTRALIAN SECURITIES COMMISSION
v AS NOMINEES LTD
FACTS In the context of a land claim, the Northern Land Council argued
that certain town planning regulations made by the Administrator of (1995) 62 FCR 504; 133 ALR 1
the Northern Territory, on the advice of the government, were invalid Federal Court of Australia
because they were made for the 'improper purpose' of defeating the
Failure to call evidence - Application of Jones v Dunkel
land claim. The Aboriginal Land Commissioner ordered discovery of
documents concerning the making of the regulations. The Northern
FACTS The ASC applied for orders for the winding up of the respondent
Territory objected to producing documents that were communications
companies, or for the appointment of a receiver. Two key figures did not
between the government's officers and its legal advisors on the basis of
give evidence in the respondent's case and there was no explanation for
legal professional privilege. their absence.
ISSUE Whether legal professional privilege could extend to ISSUE Does Jones v Dunkel (see (74]) inference continue to apply under
communications made to further illegal purposes. the Evidence Act 1995 (Cth)?
DECISION This case came within the principle that forms the basis of the DECISION Consistent with Jones v Dunkel, the inference was drawn
rule that denies privilege to communications made to further an illegal
that their evidence would not have helped the respondent's case. The
purpose. Legal professional privilege does not protect communications
Evidence Act is silent on the inferences that may be drawn from the
failure of a person to give evidence in a civil case. This silence does not
6 7
LexisNexis Case Summaries Uniform Evidence Law
undermine the longstanding practice of courts in drawing Jones v Dunkel accused did not give evidence at the trial. In both cases, the trial judge
inferences. instructed the jury that the accused hadfailed to give evidence, noted
that the accused was not obliged to give evidence, and that the accused's
silence could not be treated as an admission of guilt, but said that the
(12] AXON v AXON accused's failure to give evidence might affect the value or weight that
(1937) 59 CLR 395 the jury gave to the evidence of Crown witnesses.
High Court of Australia
ISSUE Were the instructions to the juries permissible?
Presumptions - Presumptions of continuance, death, validity of
DECISION By suggesting to the jury that the fact that the accused did
marriage
not give evidence was a reason to accept the prosecution's contention
that the accused was guilty, each direction suggested to the jury that the
FACTS Mr Axon defended maintenance proceedings brought by
accused did not give evidence because the accused was, or believed he was,
Mrs Axon on the ground that their marriage was invalid because, at
guilty of the offence charged. Both directions contravened Evidence Act
the time, Mrs Axon was still married to her first husband. There was a
1995 (NSW) s 20(2); however, the case for the prosecution against Davis
dispute about whether it could be assumed that the husband was alive.
was so strong that there had been no miscarriage of justice. In Azzopardi,
ISSUE How do presumptions of validity of marriage and of continuance the appeal was allowed, the conviction set aside, and new trial ordered.
and death operate? The appeal was dismissed in Davis.
DECISION Evidence that a person exists at a specified time will support
the inference that the person was alive at a later time to which, having ,,. (14] BvR
regard to the circumstances, it is reasonably likely that in the ordinary
( 1992) 175 CLR 599; 110 ALR 432
course of affairs he or she would survive. The greater the length of
High Court of Australia
time, the weaker the support for the inference. After a period of seven
~
years, if certain conditions are fulfilled, the presumption of death Tendency evidence - Led by accused - Corroboration
arises. A court will consider whether it is seven years since friends,
FACTS Accused of sexual offences against his daughter, B tendered
family or colleagues have heard from or seen the person (per Dixon J).
evidence of a previous conviction for similar offences (also against
Proof that a marriage ceremony has been duly performed gives rise to
his daughter) in support of a defence that he was the victim of false
a presumption in favour of the validity of the marriage. Those who
allegations based on his past conduct. The trial judge regarded the
deny it have the burden of producing reasonable evidence of a fact that
previous sexual acts as also admissible to prove the existence of an
renders the marriage void.
unnatural sexual passion and as corroborative of evidence of B's guilt
of the present offences, and directed the jury that the acts amounted to
(13] AZZOPARDI v R; DAVIS v R 'very strong corroboration' (if accepted).
(2001) 205 CLR 50; 179 ALR 349
ISSUE What is the test for the admission of tendency evidence?
High Court of Australia
DECISION An accused, seeking to tender evidence for one purpose,
Failure of the accused to give evidence - Comment to jury
cannot restrict the purposes to which that evidence can lawfully be put.
FACTS Azzopardi was convicted of soliciting another to commit murder. When evidence is properly admissible for two or more purposes, once
In a police interview, admitted in evidence at the trial, he denied all admitted, it can be used for any or all of those purposes. In the present
allegations. Direct evidence against him was called from three persons case, however, the trial judge's direction to the jury was deficient: it failed
convicted of other acts related to the alleged offence. In a second to stress to the jury the need to be satisfied beyond reasonable doubt
that B had committed the offences as charged; and, to some extent, it
case, Davis was convicted of serious sexual misconduct with a child.
usurped the fact-finding role of the jury. The appeal was allowed.
In a police interview, admitted in evidence, he denied the allegations.
The complainant gave evidence of the misconduct. In both cases, the
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