Admissibility Flashcards
How do the courts determine admissibility
Evidence is admissible if it can be legally received by a court.
If evidence cannot be received it is inadmissible.
No particular standard of proof attaches to decisions as to admissibility of evidence unless a particular provision of the act provides for it.
What was held in R v Burrows in relation to admissibility?
- The party wishing to bring the evidence has the burden of showing that it 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 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 guilty is admissible
What three things determine admissibility?
Relevance
Reliability
Unfairness
What is relevance defined as
S7 (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 a proceeding.
Explain reliability in relation to admissibility of evidence
Although unreliability is not a general ground of inadmissibility the act contains specific exceptions to this. Therefore relevant evidence may sometimes be excluded, or if admitted may attract a judicial warning if it is regarded as unreliable.
Explain fairness, what two ways does unfairness arise
If evidence is relevant it may be excluded if it would result in unfairness, unfairness usually arises in two ways
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 admission against the defendant unfair.
Most obvious example of this is where the defendant’s statement has been obtained by unfair or improper methods. The confession may be impeccable evidence however if it was obtained unfairly it may be excluded under fairness
What is the S8 Exclusion?
In any proceeding the judge must exclude evidence if its probative value is outweighed by the risk that it will
Have an unfairly prejudicial effect on the proceeding
Or 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. the judge must take into account the right of the defendant to offer an effective defence
What is unfair prejudice?
Will typically refer to the danger that a trier of a fact will give some piece of evidence more weight than it deserves, be misled by evidence or use evidence for an illegitimate purpose. The s8 focus allows exclusion of evidence that is unfair for either party’s case. Or is likely to draw jury members away from the real issues at trial.
What types of evidence would come under Needlessly prolonging proceedings
Excludes evidence which would draw out proceedings eg where a defendant wishes to call 20 witnesses to give evidence as to his veracity. Judge could limit this to 1 or 2.
What was held in R v Hannigan in relation to admission by agreement?
R v Hannigan the judge retains control of this process and may decline to admit evidence even if all parties agree to its admission or not to allow it admission in the form agreed by parties.
What is Provisional admissibility?
S14 allows where the question arises of admissibility the judge may admit the evidence subject to further evidence being offered later which establishes its admissibility.
If the other evidence required to establish admissibility is not forthcoming it may be excluded.
Can a witness give evidence as to proving a fact necessary to determine admissibility?
S15 relates to evidence given by a witness to prove the facts necessary for deciding whether to some other evidence should be admitted in a hearing
Such a hearing is a chamber hearing where the jury is excluded. This is a preliminary fact or preliminary hearing.
What type of evidence is allowed in a proceeding?
Evidence act allows evidence to prove anything that is of consequence to the determination of the proceeding
What was held in Hart v R in relation to limited use of evidence?
Hart v R where the statute proceeds on the basis that generally speaking evidence is admissible for all purposes or not admissible at all.
