2. Elements of Evidence - Establishing facts, exceptions and presumptions Flashcards
What is the general rule of evidence?
A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence.
What are two exceptions to the general rule?
Must Know
The two main exceptions to the general rule are when no evidence needs to be given of facts because:
* judicial notice is taken
* the facts are formally admitted
What is judicial notice?
When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists
In regards to judicial notice, what does S128 EA06 concern?
Must Know
Section 128 is concerned only with facts that are facts in issue or relevant to a fact in issue. Section 128(1) concerns notice of facts known and accepted generally, or in the locality. This allows for facts to be judicially noticed even where the facts are not known in the wider, national population (for example, the date and location of an annual carnival).
In regards to judicial notice, what does S129 EA06 concern?
Must Know
Section 129 codifies the common law exception to the hearsay rule that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature.
What is presumption?
Must Know
Where no direct evidence is offered or is obtainable, disputed facts are sometimes inferred from other facts which are themselves proved or known. In such cases, the inference is called a presumption.
Presumptions may be of law or of fact.
What are presumptions of law?
Presumptions of law are inferences that have been expressly drawn by law from particular facts.
Presumptions of law may be either conclusive or rebuttable.
Provide and example of conclusive presumptions of law?
Must Know
For example, a conclusive and irrebuttable presumption would be that a child under ten years of age is unable to be convicted (Crimes Act 1961, section 21(1)). These are, in effect, rules of substantive law as they refer to the substance of the law rather than the procedure contained in the law.
Provide an example of rebuttable presumptions of law?
Must Know
A rebuttable presumption would be that all defendants are innocent until proven guilty.
What is presumptions of fact?
Presumptions of fact are those that the mind naturally and logically draws from the given facts.
Presumptions of fact are simply logical inferences, and so are always rebuttable.
