Category Archives: Evidence

Criminal Law, Criminal Procedure, Evidence, LAW FIRM, Practice and Procedure

Bunning v Cross [1978] HCA 22

ON 14 JUNE 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).

http://www.austlii.edu.au/au/cases/cth/HCA/1978/22.html

A court has the discretion to admit or exclude evidence that is improperly or illegally obtained. In exercising its discretion, the court is to weigh up the competing public requirements of (a) bringing to criminal wrongdoing to conviction and (b) protecting all individuals from unfair and unlawful treatment.  The onus is on the accused to prove misconduct and justify the exclusion.

Lawyers

1300 00 2088

Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Driscoll v R [1977] HCA 43

ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).

http://www.austlii.edu.au/au/cases/cth/HCA/1977/43.html

The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.

Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).

Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).

An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.

A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.

Lawyers 1300 00 2088

Evidence, Injunctions, LAW FIRM, United Kingdom

Anton Piller KG v Manufacturing Processes Ltd [1975] EWCA Civ 12

ON 8 DECEMBER 1975, the England and Wales Court of Appeal delivered Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12 (08 December 1975).

http://www.bailii.org/ew/cases/EWCA/Civ/1975/12.html

The Court of Appeal held that it had inherent jurisdiction to order defendants in most exceptional circumstances to “permit” the plaintiffs’ lawyers to enter the defendants’ premises to inspect and remove material. Such circumstances are (1) when the plaintiffs have a strong prima facie case of very serious actual or potential damage and (2) clear evidence of the defendants being in the possession of “vital material which they might destroy or dispose of to defeat the ends of justice before an application inter partes may be made”.

The Court of Appeal held that in very exceptional circumstances such an application may be made ex parte (in the absence of the defendants).

Lawyers

Sydney, Australia

1300 00 2088

Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Green v R [1971] HCA 55

ON 16 NOVEMBER 1971, the High Court of Australia delivered Green v R [1971] HCA 55; (1971) 126 CLR 28 (16 November 1971).

http://www.austlii.edu.au/au/cases/cth/high_ct/126clr28.html

 

Lawyers

1300 00 2088

Criminal Law, Criminal Procedure, Evidence, LAW FIRM, Practice and Procedure, United States

Miranda v Arizona 384 US 436 (1966)

ON 13 JUNE 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).

http://supreme.justia.com/cases/federal/us/384/436/

The Court held that in order to protect the constitutional privilege against self incrimination under the 5th amendment of the US Constitution, an accused in custody must be informed of his or her right to remain silent; that anything he or she says may be used against him or her in court; and that he or she has the right to consult a lawyer who may present during any interrorgation.

The court held that the prosecution may not use statements of the accused whilst in custody unless the prosecution can show that they informed the accused of their right to silence and the right to a lawyer and that the accused understood this and voluntarily waved such rights in making such a statement.

Miranda warnings are typically phrased as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

The rule in Miranda v Arizona is specific to the United States and does not apply in Australia. There is no 5th amendment privilege against self-incrimination, though the High Court of Australia has held that under the Australian common law, no inference may be drawn from an accused’s silence: Petty & Maiden v R [1991] HCA 34; (1991) 173 CLR 95 (5 September 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/34.html

 

http://www.austlii.edu.au/au/cases/cth/HCA/2000/3.html

However, if an accused choses to answer some questions but not others, inferences may be drawn against the questions the accused did not answer.

In limited circumstances, some questions must be answered, such as in traffic matters. One must give their name and address if they are to receive bail.

The NSW Evidence Act 1995 when first enacted said that no adverse inference could be drawn from the exercise of the right to silence by the accused.  On 20 March 2013, the Act was amended so that the accused is cautioned with: “it may harm your defence if you fail to mention something now that you later rely on at trial”.

NSW law enforcement officers have traditionally given the following warning: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

Since the amendment of the Evidence Act, the NSW warning is: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”

Lawyers 1300 00 2088

Evidence, LAW FIRM

Nesterczuk v Mortimore [1965] HCA 60

ON 19 NOVEMBER 1965, the High Court of Australia delivered Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140 (19 November 1965).

http://www.austlii.edu.au/au/cases/cth/high_ct/115clr140.html

Lawyers

Sydney, Australia

1300 00 2088

Damages, Evidence, LAW FIRM, Personal Injury

Purkess v Crittenden [1965] HCA 34

ON 16 JULY 1965, the High Court of Australia delivered Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 (16 July 1965).

http://www.austlii.edu.au/au/cases/cth/HCA/1965/34.html

Where a plaintiff has made out a prima facie case that his or her incapacity was the result of the defendant’s negligence, the onus of adducing evidence that the incapacity was to do with a pre-existing condition, or that the incapacity would have in any event resulted from the pre-existing condition, rests with the defendant. However, the burden remains on the plaintiff on the whole of the evidence to satisfy the court or tribunal of the extent of the injury caused by the defendant’s negligence.

Lawyers

Sydney, Australia

1300 00 2088

Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Woon v R [1964] HCA 23

ON 9 APRIL 1964, the High Court of Australia delivered Woon v R [1964] HCA 23; (1964) 109 CLR 529 (9 April 1964).

http://www.austlii.edu.au/au/cases/cth/high_ct/109clr529.html

Lawyers 1300 00 2088

Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Commissioner for Railways (NSW) v Young [1962] HCA 2

ON 9 FEBRUARY 1962, the High Court of Australia delivered Commissioner for Railways (NSW) v Young [1962] HCA 2; (1962) 106 CLR 535 (9 February 1962).

http://www.austlii.edu.au/au/cases/cth/high_ct/106clr535.html

Lawyers

Sydney, Australia

1300 00 2088

Evidence, LAW FIRM

McLellan v Bowyer [1961] HCA 49

ON 11 AUGUST 1961, the High Court of Australia delivered McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95 (11 August 1961).

http://www.austlii.edu.au/au/cases/cth/high_ct/106clr95.html

When exercising its discretion to grant leave to treat a witness as hostile, the court may take into account the witnesses’ demeanour, prior inconsistent statements, conduct in the witness box, answers to non-leading questions and choice of language (at 102-103).

Lawyers

Sydney, Australia

1300 00 2088