8. Evidence

Question 1

What is Evidence?

Answer 1

A term for the whole body of material which a court or tribunal may take into account in reaching their decision.
Can be Oral, written or visual

Question 2

Three main categories of the rules of evidence

Answer 2

1.How evidence may be given
2.Who may give evidence
3.What type of material may be given in evidence

Question 3

Admissible evidence

Answer 3

Is admissible if it is legally able to be received by court

Question 4

Fact-finder

Answer 4

Judge or Jury

Question 5

Relevance

Answer 5

If it has tendency to prove or disprove anything that is of consequence to the determination of a proceeding (s7 Evidence Act)

Question 6

Facts in Issue

Answer 6

Those of which the prosecution must prove in order to establish the elements of the offence, or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.

Question 7

Proceeding

Answer 7

Conducted by court

Question 8

Weight of Evidence

Answer 8

Is its value in relation to the facts in issue

Question 9

Probative Value

Answer 9

Is determined by how strongly evidence points to the interference it is said to support and its importance to the issues in the trial

Question 10

Prejudicial

Answer 10

Evidence adverse to a parties case:the drawing of an inference against a party.
Unfair prejudice- weight to evidence of more than it deserves, speculate improperly

Question 11

Offer evidence

Answer 11

A party ‘offers’ evidence
This includes calling a witness

Question 12

Give evidence

Answer 12

A person recounting facts or opinions in a proceeding ‘gives evidence’.

Question 13

Incriminate

Answer 13

Provide information that is reasonably likely to lead to or increase the likelihood of, the prosecution of a person for a criminal offence

Question 14

Veracity

Answer 14

Is the disposition of a person to refrain from lying

Question 15

Propensity

Answer 15

A persons tendency to act in a particular way or have a particular state of mind

Question 16

S6 Evidence Act 2006
Sets out the purpose of the act

Answer 16

Helps secure the just determination of proceedings through 6 objectives
-Providing for facts to be established by the application of logical rules
- Providing rules of evidence that recognise the importance of the Bill of Rights Act
-Promoting fairness to parties and witnesses
-Protecting rights of confidentiality and other public interests
-Avoiding unjustifiable expense
-Enhancing access to the law of evidence

Question 17

s8 Evidence Act
General Exclusion

Answer 17

Sets out a general exclusion of relevant evidence that is not excluded or rendered inadmissible by some specific provisions of the Act or any other Act.
Intended to help the judge manage the length of the trial.

Question 18

Burden of Proof

Answer 18

Woolmington Principle.

The burden of proof lies completely on the prosecution to prove the case beyond reasonable doubt.
The defendant does not need to put forward any case at all except for instances like - pleading insanity or self defence

Question 19

Standard of Proof

Answer 19

Any party bearing a legal burden of proof must discharge this burden to the standard required.

Where burden lies with prosecution, it must be discharged “beyond reasonable doubt”.

Where burden lies with prosecution, it must be discharged on the “balance of probabilities”.

Question 20

Corroboration

Answer 20

s121 of the Evidence Act governs the general approach and exceptions relating to corroboration.

In general, one witness testimony unsupported by any other evidence, will suffice to prove a case where the court is satisfied that is is reliable and accurate and provides proof to the required standard.

Perjury and related offences and treason are the two offences in which an unsupported witness testimony is insufficient.

Question 21

The trial process I- The adversarial system

Answer 21

-The facts of the case emerge by means of questions
-It is up to each party to decide which witnesses to call and what questions to ask them
-The defendant does not have to give evidence
- Judges function is to ensure that the evidence is produced following the established rules

Question 22

The Trial Process I - The course of evidence

Answer 22

Witnesses who are 12 years of age and over must take an oath or affirmation before giving evidence s77

Witnesses under 12 must be informed the importance of telling the truth and not telling lies. Must give a promise to tell the truth

With the judges permission, a witness of any age may give evidence without taking an oath.

Question 23

s84 Evidence Act 2006
Examination of witnesses

Answer 23

Unless this act or any other enactment provides otherwise, or the judge directs to the contrary in any proceeding:
-A witness first gives evidence in chief
-After giving evidence the witness may be cross examined by all parties
-After cross examination the witness may be re-examined
If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in Chief.

Question 24

Meaning of relevant

Answer 24

in relation to information or an exhibit, means information or an exhibit, as the case may be, has the tendency to prove or disprove anything that is of consequence to determination of a proceeding.

Question 25

s79 Evidence Act 2006

Support persons

Answer 25

Complainant is entitled to have one support person there and with permission of judge may have more than one person.

Child witness is entitled to one support person and more with judges permission.

Any other witness is not entitled to, but may have support person with permission from judge.

Question 26

s71 Evidence Act 2006
Eligibility and compellability

Answer 26

All persons are eligible to give evidence - that is, they are lawfully able to give evidence on behalf of both prosecution and defence. All persons who are eligible are compellable to give that evidence, they can be required to testify against their will by both prosecution and defence

Question 27

s73 Evidence Act 2006
Compellability of defendants and associated defendants in criminal proceedings

Answer 27

A defendant in a criminal proceeding is not a compellable witness
An associated defendant is not compellable unless- being tried separately, or the proceeding for the associated defendant has been determined

Question 28

Priviledge - Evidence Act

Answer 28

Even when eligible to give evidence and chooses or is compelled to do so, he or she may still be able to refuse or be prevented from answering particular questions on the grounds of privilege.
A privilege in relation to giving evidence is the right to refuse to disclose or the right to prevent disclosure of otherwise admissible evidence.

Question 29

Several privileges are outlined in the Evidence Act 2006

Answer 29

Privilege for communications with legal advisors
privileges and solicitors’ trust accounts
Privilege for preparatory materials for proceedings
Privileges for settlements negotiations, mediation or plea discussions
Privileges for communication with ministers of religions
For information obtained by medical practitioners and clinical psychologists
against self-incrimination
informer privilege
Marital privilege no longer exists

Question 30

Propensity

Answer 30

Propensity is evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind.

Question 31

s41 Evidence Act 2006
Propensity Evidence about Defendants

Answer 31

Allows the defendant to offer evidence of good propensity
Also allows a neutral propensity to be shown

Question 32

S42 Evidence Act 2006
Propensity evidence about co-defendants

Answer 32

A defendant may offer propensity evidence about a co-defendant if the evidence is relevant to a defence raised or proposed to be raised by the defendant and the judge permits the defendant to do so.

Question 33

s43 Evidence Act 2006
Propensity evidence offered by prosecution about defendants

Answer 33

Propensity evidence offered by the prosecution will only be admissible where the evidence ‘has a probative value in relation to an issue in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant”
When assessing the probative weight of the evidence, the judge must take into account the nature of the issue in dispute

Question 34

s44 Evidence Act 2006
Evidence of sexual experience of complainants in sexual cases

Answer 34

The permission of the judge is required before any evidence may be given or before any questions are put to a complainant regarding his or her sexual experience with anyone

Question 35

Hearsay

Answer 35

A statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents.
Unintended assertations are not statements (therefore not hearsay)

Question 36

s18 Evidence Act 2006
Exceptions to hearsay rule

Answer 36

A hearsay statement is admissible in any proceeding if:
- Circumstances relating to the statement provide reasonable assurance that the statement is reliable and:
–The maker of the statement is unavailable as a witness
–The judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 37

s19 Evidence Act 2006
Admissibility of hearsay statements contained in business records

Answer 37

A business record will be admissible where no useful purpose would be served by requiring the person to be a witness because there can be no reasonable expectation that the person will be able to recollect the matters dealt with

Question 38

s22 Evidence Act 2006
Notice of hearsay must be given

Answer 38

Notice in writing must be submitted in order to have a hearsay statement admitted.
Must justify the reasons behind wanting the hearsay evidence submitted

Question 39

s4 Evidence Act 2006
Definition of visual identification

Answer 39

-An assertion by a person based wholly or partly on what the person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about to be done at
-An account (oral or in writing) of an assertion of the kind described above

Question 40

Observation Evidence

Answer 40

Evidence about the actions of a person, including evidence of a defendants alleged participation in the offence

Question 41

Resemblance Evidence

Answer 41

Evidence that a person shares certain features or attributes in common with the defendant. This includes description evidence where an eyewitness describes the physical characteristics of an individual involved in an offence

Question 42

s45 Evidence Act 2006
Admissibility of visual identification evidence

Answer 42

-Obtained by way of formal procedure followed by officers will be admissible in a criminal proceeding unless the defendant proves on the balance of probabilities it is unreliable
-Introduces a burden of proof on the defendant to prove the identification gained by formal procedure is not reliable

Question 43

s46 Evidence Act 2006
Admissibility of voice identification evidence

Answer 43

Voice ID evidence offered by the prosecution in a criminal proceedings is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the id was made have produced a reliable ID

Question 44

s28 Evidence Act 2006
Exclusion of unreliable statements

Answer 44

Addresses the risks presented by admitting statements that are unreliable because of the circumstances in which the statement was made.
Introduces an onus on the defendant to raise an issue about the reliability of any statements. If there is evidential foundation behind this claim, there is a presumption of exclusion.

Question 45

s30 Evidence Act 2006
Admissibility of improperly obtained statements

Answer 45

Places an onus on the defendant or judge to raise an issue on the basis of evidential foundation regarding whether the evidence was obtained improperly.
Does not make it automatically inadmissible. The judge must consider if the evidence is reliable, highly probative and crucial to the prosecution case. The exclusion in such cases would be unbalanced and disproportionate to the circumstances of the breach.

Question 46

Evidence Act s7

Fundamental principle that relevant evidence admissible

Answer 46

All relevant evidence is admissible in a proceeding except evidence that is inadmissible under this Act or any other Act or excluded under this or any other Act.

Evidence that is not relevant is not admissible in a proceeding.

Evidence m 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.

Relevance is a NECESSARY but not a SUFFICIENT condition of admissibility.

Relevant evidence may be excluded we admission would cause some unfairness to the party against whom it is admitted. Unfairness can cover a variety of situations and as a matter of discretion for the trial judge.

Question 47

When does the burden of proof lie with the defence?

Answer 47

Where the defendant wishes to rely on the defence of insanity.

Question 48

When should initial disclosure be delivered?

Answer 48

No later than 15 working days after commencement of proceedings.