2. Elements of Evidence - Admissibility and the principles of evidence law

Question 1

What determines the admissibility of evidence?

Answer 1

Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible.

Question 2

Who decides the admissibility of evidence?

Answer 2

No particular standard of proof attaches to decisions as to admissibility of evidence unless a particular provision of the Evidence Act 2006 provides for it (for example s45 of the Evidence Act relating to the admissibility of identification evidence). The judge decides on admissibility.

Question 3

In relation to admissibility, what was held in R v Burrows?

Answer 3

In R v Burrows the Court held that “The party wishing to bring the evidence has the burden of showing the evidence is admissible. It is illogical to require the Crown to show admissibility beyond reasonable doubt because circumstantial facts do not have to be proved to that standard. Admissibility is essentially a question of law which has no room for the application of varying standards of proof. Any evidence on which an individual juror might rely in reaching a conclusion as to guilt is admissible.”

Question 4

When determining admissibility what principles does the court refer to ?

Must Know

Answer 4

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the Evidence Act 2006:
* relevance
* reliability
* unfairness

Question 5

Outline S7 EA06?

Answer 5

7 Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything
that is of consequence to the determination of the proceeding.

Question 6

How is relevant evidence defined?

Must know

Answer 6

Relevant evidence is defined as any “evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the
proceeding” (s7(3)).

Question 7

What does S7 EA06 include?

Answer 7

It includes direct evidence and circumstantial evidence.

Question 8

What does S7 EA06 exclude?

Answer 8

It excludes any extraneous matters that do not relate to the precise issue or issues to be determined by the court.

Question 9

What conditions enable facts to be received as evidence?

Must Know

Answer 9

For facts to be received in evidence, they must be both relevant and admissible.

Question 10

What can lead to evidence being inadmissable or excluded?

Must Know

Answer 10

Inadmissibility or exclusion will
usually be due to a lack of reliability, fairness, public interest, or a combination of these factors. Relevance is therefore a necessary, but not a sufficient, condition of admissibility under the Evidence Act 2006.

Question 11

Evidence, though relevant, may be excluded if it would result in unfairness. How can unfairness arise?

Must Know

Answer 11

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
• Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

Question 12

Outline S8 EA06?

Answer 12

8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that
the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence

Question 13

What does S8 set out?

Answer 13

Section 8 sets out a general requirement for exclusion of evidence that is otherwise relevant and not excluded or rendered inadmissible by some specific provision of the Act or any other Act. It is intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding.

Question 14

Outline the S8 test?

Must Know

Answer 14

The s8 test involves balancing the probative value of evidence against the risk that it will:
* have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or
* “needlessly prolong the proceeding” (s8(1)(b)).

Question 15

What does unfair prejudice refer to?

Must Know

Answer 15

The risk of “unfair prejudice” will typically refer to the danger that a trier of fact will give some piece of evidence more weight than it deserves, be misled by evidence, or use evidence for an illegitimate purpose.

Question 16

What is achieved by section 8(1)(b)?

Answer 16

Section 8(1)(b) excludes evidence that will needlessly prolong the
proceedings.

Question 17

What does S14 EA06 Provide for?

Answer 17

Section 14 of the Evidence Act 2006 provides that, where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its
admissibility.

Question 18

What does S15 EA06 govern?

Answer 18

Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Question 19

What are facts determined at a hearing in chambers referred to?

Answer 19

Facts determined at a hearing in chambers are sometimes referred to as ‘preliminary facts’, or ‘preliminary hearing.

Question 20

What does the EA06 allow?

Answer 20

The Evidence Act 2006 allows evidence to prove “anything that is of consequence to the determination of the proceeding” (s7(3)).

Question 21

Admissible evidence may be used in different ways and for different purposes, what was held by the supreme court in Hart v R when thehy confirmed this?

Answer 21

The Supreme Court in Hart v R13 has confirmed this approach, stating that “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

Question 22

What are the provisions this general rule is subject to?

Must Know

Answer 22

This general rule is subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such as:
* s27, which controls the use of pre-trial statements of defendants and codefendants
* s31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
* s32, which forbids the fact-finder from using a criminal defendant’s pretrial silence as evidence of guilt.