HD and Dean's List Full Course Notes

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HD and Dean's List Extensive Complete Course Notes. Covering every topic and lecture for the whole term. Topics Covered: Week 1 (Fundamental Principles, Right to Silence and Trial Procedure): The accusatorial system of justice (X7 v Australian Crime Commission (2013)), prosecution burden beyond reasonable doubt (Woolmington v DPP AC 462), right to a fair trial under ICCPR Arts to (open justice, power imbalances, Dietrich v R (1992) 177 CLR 292). Outline of trial procedure for indictable offences (14-step sequence from jurisdiction through to verdict). Competence and compellability under ss 12 and 13 EA (lack of capacity, unsworn evidence, presumption of competence), defendants in criminal proceedings under s 17. Right to silence at trial under s 20 (comment on failure to give evidence), pre-trial right to silence under ss 89 and 89A. Post-offence conduct and consciousness of guilt (SW NSWCCA 103, Zoneff (2000) 200 CLR 234, Cook NSWCCA 52). Inferences from failing to call a witness (Dyers v R (2013) 248 CLR 92, Jones v Dunkel distinction). Week 2 (Prosecution, Procedure and Standards of Proof): Plea negotiations and the NSW Early Appropriate Guilty Plea (EAGP) scheme (sliding scale discounts, advantages and disadvantages of guilty pleas). Indictment and prosecution pleadings under s 4 Crimes Act 1900 (NSW) (duplicity, jurisdiction, time limits under s 179 CPA, criteria for separate trials: R v Webb and Hay, R v Middis, R v Pham ). Rule against double jeopardy: Filipowski maxims (Island Maritime v Filipowski (2006) 226 CLR 328), autrefois acquit, autrefois convict, statutory exception under s 100 Crimes (Appeal and Review) Act 2001 (NSW). Disclosure obligations under ss 142 and 143 CPA (R v Libke (2007) 230 CLR 559, R v Reardon (No 2) (2004), Gould v DPP (Cth) ). Staying proceedings for abuse of process (UBS AG v Tyne HCA 45, Strickland v CDPP (2018) 266 CLR 325, Jago v District Court (1992) 173 CLR 592, Williams v Spautz (1992) 174 CLR 509). In-court fair trial obligations (rules 83 to 86 ABR, R v Nguyen HCA 23, R v Wood (2012) 84 NSWLR 581). Standards of proof: civil balance of probabilities under s 140 EA (Briginshaw v Briginshaw (1938) 60 CLR 336, Neat Holdings v Karajan Holdings (1992) 110 ALR 449), criminal beyond reasonable doubt (Woolmington). Week 3 (Witness Questioning, Credibility and Vulnerable Witnesses): Chapter 2 vs Chapter 3 provisions of the EA (process vs admissibility). Credibility vs reliability distinction, trial judge's advantage (SRA of NSW v Earthline Constructions HCA 3, Whisprun v Dixon HCA 48). Forms of examination: examination-in-chief (s 37, no leading questions without leave), cross-examination (s 42, leading questions permitted), re-examination (s 39), unfavourable witnesses under s 38 (three grounds, treated as cross-examination). Oaths and affirmations under ss 21 and 22. Vulnerable witnesses: special measures in NSW (CCTV, screens, support persons under s 306ZK CPA, communication assistants under s 275B CPA). Intermediaries: Part 5 Division 1A CPA (ss 294E to 294S, mandatory pre-recorded evidence hearings under s 294G, witness intermediaries under ss 294L to 294N, commenced 29 January 2024). Week 4 (Relevance, Probative Value and the Exclusionary Framework): Relevance under s 55 EA (could rationally affect probability of a fact in issue), admissibility under s 56 (relevant evidence admissible, irrelevant inadmissible), provisional relevance under s 57. Key definitions: probative value (Dictionary), facts in issue, relevance vs weight (Smith v The Queen (2001) 206 CLR 650, IMM v The Queen (2016) 257 CLR 300). Five-step evidence analysis framework under the UEL. Exclusionary discretions: s 135 general discretion (substantially outweighed, danger of unfair prejudice, misleading, confusing, waste of time; R v Clarke NSWCCA 494, R v Lisoff NSWCCA 364), s 137 mandatory exclusion in criminal proceedings (outweighed by danger of unfair prejudice to defendant; IMM v The Queen), s 136 limiting use of evidence, s 138 improperly obtained evidence (balancing exercise, s 138(3) factors, s 139 uncautioned admissions). What is unfair prejudice: Papakosmas v R (1999) 196 CLR 297, R v BD (1997) 94 A Crim R 131, Lockyer (1996) 89 A Crim R 457, Pfennig v R (1995) 182 CLR 461. Six-step evidence admissibility flowchart. Week 5 (Credibility Evidence and the Credibility Rule): Definition of credibility evidence under s 101A (inserted after Adam v The Queen (2001) 207 CLR 96), two limbs: relevant only to credibility, or relevant to credibility and inadmissible for another purpose. Credibility rule under s 102 (credibility evidence about a witness not admissible). Collateral facts principle (Palmer v The Queen HCA 2, Peacock v R NSWCCA 264). Exceptions table: s 103 (cross-examination substantially affecting credibility, no leave required; R v Lodhi NSWSC 670 on substantial vs significant), s 104 (cross-examination of defendants, leave required, exceptions for bias and prior inconsistent statements), s 106 (rebuttal of denials by other evidence, five grounds), s 108 (re-examination and prior consistent statements, I Doyle NSWCCA 4), s 108A (persons not called), s 108B (defendants not called), s 108C (evidence from persons with specialised knowledge). Prior inconsistent statements: dual function (credibility and hearsay), interaction of ss 60, 101A, 102 and 136. Week 6 (The Hearsay Rule): Policy rationale for excluding hearsay (six reasons including unreliability, inability to cross-examine, demeanour, misunderstanding, oath, accuracy). Hearsay rule under s 59 (previous representation not admissible to prove asserted fact), s 59(2A) objective intention test. Key definitions table (previous representation, representation, asserted fact, prior inconsistent statement, prior consistent statement). Four elements of hearsay under the UEL. First-hand hearsay under s 62 (personal knowledge based on seeing, hearing or otherwise perceiving, not from another person; R v Vincent NSWCCA, Lee v The Queen (1998) 195 CLR 594). Non-hearsay use (Subramaniam v Public Prosecutor 1 WLR 965). Exceptions: Division 2 first-hand hearsay (s 63 civil maker unavailable, s 64 civil maker available, s 65 criminal maker unavailable with four conditions, s 65(3) prior cross-examination, s 66 criminal maker available and freshness in memory, s 66(2A) holistic freshness assessment, s 66A state of mind). Notice requirements under s 67. Division 3 other exceptions (s 69 business records: broad definition of business, personal knowledge requirement, no litigation documents, negative hearsay under s 69(4); R v Adams NSWCCA 215; Daniels v WA FCA 413; s 70 tags and labels, s 71 electronic communications, s 72 ATSI traditional laws and customs: Re Estate Jerrard NSWSC 781; s 73 reputation, s 74 public rights, s 75 interlocutory proceedings). Week 7 (Hearsay Exceptions, Admissions and Non-Hearsay Purpose): Non-hearsay purpose under s 60 (key principles, not limited to first-hand hearsay per s 60(2), does not apply in criminal proceedings to admissions, interaction with s 136). Interplay between hearsay and credibility via s 101A. Admissions under Part : definition (previous representation adverse to maker's interests, includes endorsements and conduct). s 81 (hearsay and opinion rules not applicable to admissions), s 82 (limitation to first-hand admissions), s 83 (third party admissions, consent required). s 84 (admissions influenced by violent, oppressive, inhuman or degrading conduct), s 85 (criminal admissions to investigating officials, circumstances making truth adversely affected, three factors under s 85(3)), s 90 (discretion to exclude criminal admissions for unfairness). Interaction with Part (ss 138 and 139). Week 8 (Character Evidence and Identification Evidence): Character evidence under Part (applies only in criminal proceedings). s 110 framework (s 110(1): defendant's good character admitted; s 110(2): good character generally opens rebuttal; s 110(3): good character in a particular respect). Bishop v The Queen VSCA 273 on particular respect. Deliberate choice to raise character (Gabriel v R (1997) 76 FCR 279, R v Bartle NSWCCA 329). s 112 leave to cross-examine about character (R v Stanoevski (2001) 202 CLR 115). s 111 co-accused character evidence. Ways of adducing and rebutting good character (six methods for each). Identification evidence under Part : definition from Dictionary (assertion based on perception at scene at time of offence or act). s 114 exclusion of visual identification evidence (parade requirement, three exceptions, intentional influence prohibition), reasonableness of holding a parade under ss 114(3) to (5) (six factors; R v Graham (1995) 195 CLR 606, R v McKellar NSWCCA 523). s 115 exclusion of picture identification evidence (three grounds; defendant in custody rule and exceptions under s 115(5); s 115(8) rebuttal exception). s 116 directions to the jury (caution warning, picture warning, when required: R v Domican (1993) 173 CLR 555, R v Dhanhoa (2003) 217 CLR 1, R v Trudgett (2008) 70 NSWLR 696). Evidence outside the statutory definition regulated by ss 55 and 135 to 137 (R v Smith (Mundarra) (2001) 206 CLR 650). Week 9 (Opinion Evidence): Fact vs opinion distinction (Lithgow City Council v Jackson (2011) 244 CLR 352). Opinion rule under s 76 (opinion not admissible to prove existence of a fact). Exceptions table: s 50(3) document summaries, s 77 non-opinion purpose (equivalent to s 60), s 78 lay opinion (two conditions: based on perception, necessary for adequate account; usual examples: age, sobriety, speed, distance, identity, emotional state; Lithgow City Council v Jackson), s 78A ATSI traditional laws and customs, s 79 expert opinion, s 81 admissions, ss 110 and 111 character. Expert opinion under s 79 (two cumulative conditions: specialised knowledge outside common knowledge, opinion wholly or substantially based on that knowledge; formal qualifications not always required but experience must result in knowledge). Key cases: Honeysett v The Queen HCA 29 (specialised knowledge requirements), Makita v Sprowles NSWCA 305 (seven-point admissibility checklist for expert evidence). Reliability not an admissibility issue (R v Tang NSWCCA 167). Expert Witness Code of Conduct under UCPR 2005 (NSW) Schedule 7 (paramount duty to court, breach may justify exclusion: Wood v R NSWCCA 221). Ad hoc experts: Butera v DPP (Vic) (1987) 174 CLR 180 (origin of concept), R v Tang NSWCCA 167 (facial mapping not specialised knowledge, ad hoc comparisons permitted), R v Nguyen NSWCCA 4 (police officer identifying voice in intercepted calls). Week 10 (Tendency and Coincidence Evidence): Overview of Part (circumstantial evidence, prohibited reasoning). s 95 use restriction (tendency and coincidence evidence strictly limited to purpose for which admitted, unlike hearsay and s 60). Tendency rule under s 97 (two conditions: reasonable written notice, significant probative value). Nature of tendency evidence (R v Harker NSWCCA 427, R v Cittadini NSWCCA 256). Significant probative value (R v Lockyer (1996) 89 A Crim R 457: more than mere relevance, less than substantial; Hughes v R HCA 20: two matters, strength of support for tendency and strength of tendency in supporting facts of the charge). Traditional factors for assessing significant probative value (nine factors including time gaps, number of incidents, degree of similarity, unusual features). Similarity vs tendency (R v Ford NSWCCA 306: not required to be strikingly similar, McPhillamy v The Queen HCA 52: temporal gap weakening tendency inference). s 97A child sexual offences (presumption of significant probative value for sexual interest in children, limited role for differences in circumstances). Coincidence rule under s 98 (two or more events, improbability of coincidence, notice and significant probative value required; s 98(1A) multiple complainants). Key principles of coincidence evidence (improbability reasoning). Six-step process for coincidence evidence from R v Gale and R v Duckworth NSWCCA 174. R v Folbigg NSWCCA 17 (tendency and coincidence in multiple child deaths). Further restrictions in criminal proceedings under s 101 (prosecution tendency and coincidence evidence must have probative value outweighing danger of unfair prejudice; six jury risks). Relationship, context, background and transaction evidence (O'Leary v The King (1946) 75 CLR 566, R v ATM NSWCCA 475, Aleski VSCA 124). Week 11 (Warnings About Unreliable Evidence): s 165 unreliable evidence: seven categories under s 165(1) (hearsay, admissions, identification evidence, evidence affected by age or ill health, criminally concerned witnesses, prison informers, unsigned interview records, estate proceedings). Warning obligation under s 165(2) (party request triggers obligation, three elements, good reasons exception). Scope of evidence of a kind that may be unreliable (R v Stewart (2001) 52 NSWLR 301, R v Grey (2001) 75 ALJR 1708). Nine examples of evidence of a kind. s 165(1)(b) identification evidence (interface with s 116; negative identification evidence: Kanaan v R NSWCCA 109). s 165(1)(d) accomplice warning (three bases from Kanaan). s 165A children's evidence (four things a judge must not do, circumstances for a permitted warning). s 165B delay in prosecution (significant forensic disadvantage requirement, factors, judge must not suggest dangerous to convict solely because of delay). s 192 leave, permission and directions (five matters). s 192A advance rulings.