Introduction to the UEA - Victorian Law Reform Commission

More documents

Recommendations

Info

CREDIBILITY EVIDENCE Is the evidence relevant only because it affects the assessment of the credibility of a witness or is it relevant for a credibility purpose and another purpose for which it is not admissible? s101A Credibility evidence is not admissible unless an exception applies s102 Yes OR Was evidence of a previous representation admitted in the proceeding and its maker not called to give evidence? s108A Is the evidence being led in crossexamination? s103 Is the evidence capable of substantially affecting the assessment of the credibility of the witness? s103 Is leave required (criminal proceeding)? s104 Is the evidence being led in chief to rebut a denial in cross-examination? s106 Has the matter been put to the witness in crossexamination and denied, not admitted, or not agreed to? s106 Is the evidence led in reexamination? s108(1) Does the matter arise from crossexamination, or has leave been granted? s39 and s192 Is it evidence of a prior consistent statement? s108(3) Yes Yes Yes Yes Yes Yes No Yes Is leave required? s106(2) Yes Yes Has a prior inconsistent statement been admitted, or is it or will it be suggested that evidence is fabricated, reconstructed or the result of suggestion? s108(3) Yes Is it evidence of specialised knowledge? s108C Yes Is the evidence capable of substantially affecting a witness's credibility? s108C Yes Should leave be granted? s192 Yes Is it character evidence? s110 Is it led by the defendant to prove good character, or is it led to rebut the defendant's evidence of good character? s110 Yes Is leave required? s112 Yes Yes No Yes Is the credibility evidence capable of substantially affecting the assessment of the credibility of the maker of the representation? s108A(1) Yes Is leave required (criminal proceeding)? s108B Yes Should leave be granted? s104 and s192 Should leave be granted? s192 Should leave be granted? s192 Should leave be granted? s192 Should leave be granted? s108B and s192 Yes Yes Yes Yes Yes EVIDENCE IS ADMISSIBLE ON THE CREDIBILITY OF WITNESS 61
4.7 Identification evidence Identification evidence is evidence that identifies the defendant as being or resembling (visually, aurally or otherwise) someone who was at or near a place where the offence (or an act connected to the offence) being prosecuted was committed and must be based on what the person making the identification saw, heard or otherwise perceived at that place and at the time (UEA Dictionary). The rules controlling the admissibility of identification evidence are set out in Part 3.9 of the UEA. They impose procedural requirements on the way identification evidence is obtained to improve its reliability. The result is to make identification parades the primary source of identification evidence and picture identification the secondary source. The provisions relating to identification evidence apply only in criminal proceedings (s113) and only to evidence adduced by the prosecution (s114(2) and s115(2)). 4.7.1 Visual identification evidence Visual identification evidence is identification evidence that is based wholly or partly on what a person saw but does not include picture identification evidence (s114(1)). Evidence of this kind is not admissible unless: • an identification parade was held or • it would not have been reasonable to hold an identification parade or • the defendant refused to take part in one and the identification was made without the person who made it having been intentionally influenced to identify the defendant (s114(2)). Section 114(3) provides a non-exhaustive list of matters the court is to take into account in determining whether it was reasonable to hold an identification parade. Section 114(4) creates a presumption that it would not have been reasonable to hold an identification parade if it would have been unfair to the defendant to do so. For example, if police could not find enough people of similar appearance to be present despite reasonable efforts (R v Tahere [1999] NSWCCA 170). The court is not to take into account the availability of pictures or photographs that could be used in making identifications in determining whether it was reasonable to hold an identification parade (s114(6)). 62
Page 1 and 2:
Introduction to the Uniform Evidenc
Page 3 and 4:
Table of Contents 1. PRELIMINARY ..
Page 5 and 6:
4.4.9 Admissions made with authorit
Page 7 and 8:
necessary. 2 In response, the ALRC
Page 9 and 10:
1.4 Policy underlying the UEA An un
Page 11 and 12:
2. Using the Victorian UEA 2.1 Appl
Page 13 and 14:
(Part 3.5) • the exclusion of evi
Page 15 and 16: While some of the changes made to t
Page 17 and 18: 3. Significant changes for Victoria
Page 19 and 20: A spouse, de facto partner (defined
Page 21 and 22: A court may allow a party who calle
Page 23 and 24: 3.2 Documents 3.2.1 Definition of d
Page 25 and 26: A party may make a reasonable reque
Page 27 and 28: • documents produced from proper
Page 31 and 32: 4.2 Hearsay The UEA provides a basi
Page 33 and 34: HEARSAY OVERVIEW RULE: Evidence of
Page 35 and 36: 4.2.5 Civil proceedings - exception
Page 37 and 38: 4.2.8 Criminal proceedings - except
Page 39 and 40: Example 2 While the common law allo
Page 41 and 42: HEARSAY IN CRIMINAL PROCEEDINGS RUL
Page 43 and 44: 4.3.4 Exception - opinion evidence
Page 45 and 46: OPINION EVIDENCE RULE: Evidence of
Page 47 and 48: 4.3.8 Opinion - special case 1 - co
Page 49 and 50: This provision applies only if the
Page 51 and 52: 4.4.6 Records of oral admissions A
Page 53 and 54: ADMISSIONS Admission means a previo
Page 55 and 56: ADMISSIONS AS EXCEPTION TO HEARSAY
Page 57 and 58: 4.5.2 Admissibility in civil and cr
Page 59 and 60: TENDENCY Is evidence of a person's
Page 61 and 62: 4.6 Credibility Credibility of a wi
Page 63 and 64: Further, in deciding whether to gra
Page 65: under the UEA. Section 108C provide
Page 69 and 70: 4.7.2 Picture identification eviden
Page 71 and 72: 4.7.3 Jury directions If identifica
Page 73 and 74: Client legal privilege under the UE
Page 75 and 76: CLIENT LEGAL PRIVILEGE Was the comm
Page 77 and 78: If the court determines that there
Page 79 and 80: PRIVILEGE AGAINST SELF-INCRIMINATIO
Page 81 and 82: • the likely effect of adducing e
Page 85: 5.3.3 Delay warnings If, in a crimi
show all

Introduction to the UEA - Victorian Law Reform Commission

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?