The Problem of Increasing Litigation Costs - Case Study Example

 «The Problem of Increasing Litigation Costs» Ans 1: The common law position on “opinion” is that it is an inference drawn from observed facts (Cross & Tapper on Evidence, 10th edn (2004), however unless opinion evidence is based upon direct inferences drawn from the five senses, it is not admissible (ss 76 of EA) because it is a subjective conclusion. Since it is difficult to clearly differentiate between evidence of fact and evidence of opinion, ss 78, 79 and 80 of the EA are significant because they specify the exceptions to the “opinion rule” of ss 76. For instance, an opinion that merely states what constitutes common knowledge (ss 80) and “is within their[the judges] own knowledge or experience is not helpful and not admissible for that reason.”1 However, people who possess specialized knowledge in an area will qualify as experts (ss79) and this includes people who are experienced in a particular area1a – their opinion will be valuable in making assessments due tot heir knowledge of the subject. The restrictions in ss 76 to admit only evidence that is a direct inference from the senses may result in difficulties in adducing evidence. The opinion of lay persons will therefore be admissible(ss78) in certain circumstances where inferences drawn from primary facts are reliable enough to be adduced as evidence, for example, in stating an opinion whether a defendant was under the influence of alcohol.3 This aids the Courts in reaching a valid decision. Exclusions of opinion and hearsay evidence were impacted negatively in cases where admissibility of potentially relevant evidence could be challenged on technical grounds, as was the case in Kearley and Sparks.4 However ss 79 makes provision for inclusion of expert evidence and an appellate court has the jurisdiction to review the question of whether or not a particular witness qualifies as an expert5. The Court can also determine whether such evidence is properly the subject of expert testimony6. In the case of R v Gilmore, the Court exercised its discretion to determine what could constitute expert testimony. It has pointed out that “because of its apparent objectivity, an opinion that claims a scientific basis is apt to carry undue weight with the trier of fact.” 7 The case of United States v Baller8 also cautions against passing over the issues involved in a case to expert evaluation. For instance, in the Velseki case9, expert testimony was not the sole criterion in determining the accused’s guilt. Thus, these exclusions to the Evidence Act have made it possible for relevant opinion evidence to be admissible under specified criteria, while also permitting flexibility to Courts, thereby aiding the process of justice. Ans 2: Under common law, the failure of a witness to give evidence could not automatically be adversely interpreted (Section 407 of the Crimes Act of 1990). The reason for this position was the fact that the court system was accusatorial, and there was no inquisitorial elements. Therefore the law required that the burden of proof be placed upon the prosecution, to produce independent proof of the accused’s guilt beyond a reasonable doubt and during this process, the prosecution was not permitted to force a confession from the accused. The case of Weissensteiner was important in that it raised the issue of circumstantial evidence pointing to the accused’s guilt, however the Court held that the failure of the accused to give evidence did not itself construe an implication of guilt. The Court stated clearly that in an accusatorial trial, the failure of an accused to give evidence “cannot fill any gaps in the prosecution case” (Weissensteiner @50) and it cannot be used as a factor in determine whether the prosecution has proved its case beyond a reasonable doubt. Therefore the failure of a witness to give evidence was not to be associated with inferences of guilt. Section 20(2) of the Evidence Act states clearly that the judge or other parties may comment on the failure of the accused to provide an explanation for evidence that exists against him. Therefore, the position taken by the judges in the RPS case was a valid one. Firstly, in their judgment the silence of the accused was not excused in the manner of Weissensteiner. The prosecution in this case failed to call a witness that it should have and Justices questioned “whether in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused”(RPS@633). Secondly, in this case, the Court applied a similar reasoning as it did in the case of Azzopardi v The Queen, where it stated that the position the Court adopted in Weissensteiner would be justified only if “there is a basis for concluding that there additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw.” 10 Thirdly, Justice McHugh also commented on the history of the right to silence and adopted the position that the right to silence allowed to the accused was no more than an “invention of lawyers” to protect their clients from incriminating themselves.(Azzopardi @101) The position taken in the majority opinion of Judges in the RPS case was that the Jury could reasonably draw an adverse inference if the accused failed to give evidence, since his silence would amount to a tacit admission of guilt. The silence of the accused could be ignored only in cases where there were additional facts available to draw inferences from, so that the silence would have much impact upon the verdict. By commenting in a manner which did not infringe the rights of the accused, yet did not condone an attempt to avoid incrimination, the judges interpreted Section 20(2) correctly. Ans 3: Section 60 pertains to former statements of a witness that may be admitted into evidence in order to establish their consistency or inconsistency and to provide evidence about the credibility of a witness. This is significant when used in conjunction with other evidence, because such evidence will then have reliability and can not only establish credibility but also facts. (Adam v R @24.73). In R v Daren and Tange10b prior inconsistent oral evidence was deemed admissible, similarly, a prior written inconsistent statement can also be called into evidence.(Alchin v Commissioner for Railways).10c For example in the case of Rock, even messages and notes were deemed to be admissible evidence, since all forms of documentation may contribute towards establishing consistency or inconsistency of a witness and therefore his/her credibility.10a Thus it addresses some of the limitations of hearsay evidence, which may be biased or inaccurate, mistaken or manufactured and there is no cross examination facility available to examine the veracity of the evidence, hence it has been deemed inadmissible as evidence in a court of law, being based upon supposition and speculation, except in rare cases11. The problem with hearsay evidence is the likelihood of fabrication and Section 65(2)(c ) is significant because it states the exceptions to the inadmissibility of hearsay evidence rule (ss59) on the principle of res gestae. According to this exception, the validity of such evidence makes it admissible even when it constitutes hearsay, as stated in R v Andrews. SS 65 (2) (c ) is especially relevant in criminal proceedings (Papakosmas@26.67). This doctrine will be all the more relevant, because a witness may be unable to be present out of fear or because he/she is dead, but could still have contributed valuable hearsay evidence, which should be rendered admissible.12 This was the case in R v Bedingfield, where hearsay evidence of the victim of a crime was deemed inadmissible, although it fell under the purview of res gestae, or a part of the “story event or transaction”. Thus, through the provisions of section 60 and Section 65 (2) (c ) for criminal proceedings, it has become possible to include forms of evidence not hitherto permitted. This provides additional facilities to the parties to prove their cases through the use of related evidence, for which they can prove the reliability and credibility. Ans 4: The rule in Browne v Dunn makes it mandatory for a person cross examining a witness to give that witness the opportunity to respond to and explain evidence that is proposed to be used against him or her. It must be “perfectly clear that he [the witness] has had full notice beforehand that there is an intention to impeach the credibility of his story.”(Browne @67). The rules laid out in this case have been upheld to enable a victim to protect his credibility by being provided the opportunity to explain unfavorable evidence, and a cross examiner cannot later bring up issues not raised during the cross examination.(Martin v Great Northern railway). This rule was applied in the case of Payless Superbarn and in the interest of procedural fairness and to ensure that no miscarriage of the trial occurred, it was left to the discretion of the trial judge to uphold the rule (Browne@552C, 556D and 560B). Since in this case, the defendant’s counsel had not cross examined the plaintiff yet sought to lead evidence on a particular issue, the rule in Browne was deemed to have been breached.(Also see Seymour v Australian Broadcasting Commission). Penalties have also been levied for failure to cross examine on evidence to be adduced. Section 46 of the Evidence Act allows for recall of a witness to give evidence on matters being raised by another party.13 It may be noted that the need to painstakingly introduce all facets of evidence before being able to use it against a witness, is a time consuming process. With the rising costs of litigation, it is necessary to evaluate the merits of the Browne rule. The case of R v. MacKinnon13a held that the rule in Browne impacts upon practice but is not the law. “It is a matter of weight to be decided by the trier of fact.” (Mackinnon@120)14. Incompetent lawyers and self litigants may abuse the process and use it to carry out protracted cross examinations without achieving anything useful, because they may themselves not be clear on the issue and may be afraid to leave something uncovered.15 There is also the question of irrelevant and circuitous points being raised, or similar facts evidence, all of which are likely to be repetitive and increase the costs of litigation. In the case of O’Brien v Shantz16, the Court held that while the failure to cross examine a witness on an inconsistent statement could constitute procedural unfairness, it will be determined by the weight that may be accorded to the relevance of the evidence. In the case of MacCabe v Westlock Roman Catholic Separate School District No: 10017, it was held that in view of the higher levels of disclosure required before the trial, sufficient notices can be deemed to have been given and the failure to cross examine could not constitute a significant disadvantage. Developments such as the cases cited above indicate that there is duplication of procedures and waste of time that occurs through the application of the Browne rule, which therefore needs re-evaluation in the context of increasing litigation costs. Ans 5: Under common law, the term “tendency” indicates a person’s inclination or propensity towards a particular action (LAW 00114 6.2-6.3). However, despite the fact that a defendant may have engaged in similar types of unlawful conduct (Waight and Williams @389), the inclusion of such facts as evidence related to a particular trial have hitherto been deemed inadmissible. The case of Makin also pointed that such evidence would generally be unacceptable, however certain exceptions to the rule of tendency evidence were also laid out in this case. The tendency rule(ss 97) holds tendency evidence to be inadmissible. Similarly, there are also limitations on the exclusions to the “coincidence rule” (ss 98A) which states that coincidence may be established only in cases where circumstances and similarities are substantial in nature. This has created difficulties in the introduction of tendency and coincidence evidence in prosecuting cases against criminals, since such evidence is rejected if its only purpose is to establish the credibility of the witness. The notable inadequacies in the tendency rule (ss 97) arise from the fact that tendency evidence is not deemed admissible unless notice has been given or the evidence has significant probative value. The restrictions on such evidence make it difficult to admit it unless its probative value is significant. However, ss 100 of the EA states that the Court can “dispense with the notice requirements”. Thus the defendant is deprived of the opportunity to be aware of such evidence which exists against him and to provide an explanation for it. This greatly prejudices the case against a defendant without providing sufficient opportunity to rebut accusations, therefore it undermines the fairness of the use of such evidence. This issue is even more relevant in criminal cases. Since the sentences for offenses proved in a court of law are more stringent than in civil cases, the power of the Courts to eschew notice to the defendants may further prejudice their interests and fairness to their interests. (See Pfennig v R@25.76). The question of a person’s character or conduct may be relevant to prove the case, however the credibility of a witness cannot be undermined without providing sufficient opportunity to rebut accusations. While the requirement of probative value reduces the possibility of using only the reliability and credibility of the witness as a basis on which guilt can be proved, the issue of potential prejudice of such value is too great under the present provisions (ss 101) especially because guilt must be proved beyond a reasonable doubt in a criminal case and inadequate restrictions on admissibility of such evidence undermine that requirement. Ans 6: In Europe, Judges have been allowed a wide range of flexibility and discretion in applying hearsay evidence according to the circumstances of the individual case.18 The new hearsay rules which allow for the admissibility of evidence, even in cases where the witness is unable to appear in Court or is afraid to do so19, are directed towards balancing the rights of defendants in crimes with the rights of the victims. The major provisions that constitute significant changes in the realm of hearsay is the fact that multiple oral hearsay will now be admissible in a criminal case, and they have extended the grounds under which hearsay may be admitted as evidence, to also include the inability to attend the court in criminal cases on grounds of fear of retribution. Previous statements of witnesses have also been rendered admissible as evidence. in the case of N v HMA (505)20, the Lord Justice Clerk was of the opinion that the discretion which the Court had previously enjoyed to exclude heresay evidence in arriving at a determination on a trial had been removed under the new provisions on admissibility of heresay evidence. Similar provisions have resulted through the hearsay rules in the EA. Section 59 allows “implied assertions”, while Section 60 allows introduction of such evidence for a non hearsay purpose and evidence of uncorroborated admissions and confessions, all of which constitute second hand evidence which has however been deemed to be admissible. By allowing implied assertions, second hand statements may be used as evidence. (Lee v R@27.41). Moreover the use of prior consistent or inconsistent statements of a defendant in court also constitutes such second hand evidence which is rendered admissible (Adam v R @27.43) The question of how to determine whether direct oral evidence of witnesses would be admissible was laid out in the case of R v P21 whereby first hand hearsay was admissible but second hand hearsay was not. Under the new provisions of the Criminal justice Act of 2003 that allows for admissibility of multiple oral evidence, what constitutes evidence gleaned from third party sources on the basis of second hand knowledge would in fact, be admissible. Section 69 of the EA allows the introduction of documents such as business or medical records, which constitute second hand hearsay which have nevertheless been deemed admissible. Therefore the two systems do not appear all that different. Read More