Evidence Law in QLD SA and WA 1st Edition by Andrew Hemming, Robyn Layton 9780455237862 0455237867

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ISBN 10: 0455237867
ISBN 13: 9780455237862
Author: Andrew Hemming, Robyn A. Layton

Evidence law in the three “common law” states of Queensland, South Australia and Western Australia is the prime focus of this book, highlighting their similarities and differences. Additionally the book compares and contrasts the evidence law of these states with the uniform evidence legislation. Each of the 12 chapters traverse key concepts, case law and legislation, with generous use of headings to guide readers in a logical and easy- to- read style. The publication is an excellent teaching tool and includes active learning questions and problem scenarios which can be discussed during evidence courses. The book is also a practical resource for busy legal practitioners who need to gain a quick understanding of particular evidentiary issues.

Evidence Law in QLD SA and WA 1st Table of contents:

1 Introduction and Evidence Basics
This book
Why are there two evidence regimes in Australia?
Queensland
South Australia
Western Australia
Both regimes apply
Nature of evidence
Is it a fact in issue?
Is it direct evidence or circumstantial evidence?
Is it relevant?
Adversarial system
Evidence is adduced by the parties
Tests applied to adduce new or fresh evidence or reopen a case
Role of the judge
Role of the prosecutor
The functions of judge and jury
Judge can withdraw evidence but not call evidence
Judge can ask questions
Jury can ask questions through the judge
Judge can and sometimes must give directions to a jury
Judge can express views on facts in a summing up
Judge may give a direction to a jury which is unable to reach a verdict
Judge may direct a verdict of not guilty
Trial processes
Pre-trial processes
Voir dire
Judge can direct a voir dire
Judge can refuse a request for a voir dire
Trial process
Appeal processes
Court of Criminal Appeal orders if error is found on an appeal
Basics for admission and exclusion of evidence
Admission of evidence
Meaning of relevance
Common law approach
Relevance and remoteness at common law
R v Buchanan
R v Horvath
R v Stephenson
Uniform evidence legislation approach
Relevance and remoteness under the uniform evidence legislation
Relevance and circumstantial evidence
Circumstantial evidence which is relationship evidence
Cumulative circumstantial evidence
Shepherd v The Queen
Directions to a jury
Cases which discuss the “no other inference consistent with innocence” requirement
Martin v Osborne
Plomp v The Queen
R v Perera
R v Baden-Clay
R v Kuruvinakunnel
Cases which discuss the choice between prosecution and defence evidence
Exclusion of relevant evidence
Common law judicial exclusion of evidence
Christie discretion
Lee discretion
Bunning v Cross discretion
R v Ireland
Bunning v Cross
Overlap between fairness and public policy discretions
General unfairness discretion
State legislation expressing common law judicial discretions
Queensland
R v Hasler, Ex parte Attorney-General (Qld)
R v Morris
South Australia
R v Bunting & Wagner
R v S, DD
Western Australia
Slater v The Queen
Wright v Western Australia
Dodd v Western Australia
Uniform evidence legislation expressing common law judicial discretions
Section 90
Section 135
Section 137
Divergence of views about the meaning of “probative value”
R v XY
IMM v The Queen
Section 138
Summary of main common law judicial discretions which can exclude relevant evidence
Summary of major uniform evidence provisions on judicial discretions which can exclude relevant evidence
Assessment preparation
Active learning questions
Problem question 1
Problem question 2
Problem question 3

2 Competence, Compellability and Special Classes of Witnesses
Introduction
Overview of competence and compellability
Competence
Queensland legislation and cases
Determination process
South Australian legislation and cases
Determination process
Western Australian legislation and cases
Determination process
Uniform evidence legislation
Compellability
Queensland legislation and cases
Civil proceedings
Criminal proceedings
The accused
Current, former and de facto spouses of the accused
South Australian legislation and cases
Civil proceedings
Criminal proceedings
The accused
Family members of accused
Determination process
Section 21 Competence and compellability of witnesses
Western Australian legislation and cases
Civil proceedings
Criminal proceedings
The accused
Spouse and family members
Uniform evidence legislation
Special classes of witnesses
General overview
Children
Witnesses with disabilities – cognitive and other impairments
Aboriginal and Torres Strait Islander peoples
Culturally and Linguistically Diverse (CALD) witnesses
Victims in sex offence cases
Victims of family violence
Legislation – special arrangements to give evidence
Overview of special arrangements across the common law States
Special arrangements in the common law States to assist special or vulnerable witnesses
Queensland
Statutory provisions
Persons for whom special arrangements apply
Types of arrangements which can be made
Special procedures and assistance
Admission of out of court statements
Judicial directions or instructions to the jury on special arrangements
South Australia
Statutory provisions
Persons for whom special arrangements apply
Types of arrangements which can be made
Special procedures and assistance
Admission of out of court statements
Judicial directions or instructions to the jury on special arrangements
Western Australia
Statutory provisions
Persons for whom special arrangements apply
Types of arrangements which can be made
Admission of out of court statements
Special procedures and assistance
Judicial directions or instructions to the jury on special arrangements
Improper questions
Queensland
South Australia
Western Australia
Uniform evidence legislation
Assessment preparation
Active learning questions
Problem question 1
Problem question 2
Problem question 3

3 Proof, Presumptions and Prima Facie Case
Introduction
Burden of proof
Legal burden
Criminal cases
Civil cases
Evidential burden
Adducing evidence and tactical burden
How does the defendant discharge the evidential burden of a defence?
Fundamental principles – legal and evidential burdens
Legal and evidential burdens never shift
Legal burden lies on the party asserting the matter

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Andrew Hemming,Robyn Layton,Evidence Law