Admissibility and the Principles of Evidence Law Flashcards
Determining admissibility
Evidence is admissible if it can legally be received by the court. If it cannot be received it is inadmissible.
When deciding whether evidence is admissible the courts have referent to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the EA 2006: RELEVANCE, RELIABILITY, UNFAIRNESS
What is held in R v BURROWS
The court held that the party wishing to bring 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. Any evidence that an individual juror might rely in reaching a conclusion as to guilt is admissible.
What is S7 EA 06 Relevance
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.
Define Reliability
Although unreliability is not a general ground of inadmissibility. The Act contains some exclusionary rules that look to reliability, including rules relating to hearsay and identification evidence.
Define Fairness and the General Rule of Exclusion under S8 EA 06
Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:
* 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.
What S8 EA 06 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
Define the S8 EA 06 test “Weighing up”.
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)).
Define Evidence that would unfairly prejudicial effect on the proceeding
Define Unfair Prejudice effect on proceedings. S8(1)(a) EA 06
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.
The s8 focus allows exclusion of evidence that is unfair for either party’s case or is likely to be unfair for the proceeding as a whole by drawing jury members away from the real issues in the trial.
Define Evidence that would needlessly prolong Proceedings. S8(1)(b) EA 06
Section 8(1)(b) excludes evidence that will needlessly prolong the proceedings. For example, calling 20 witnesses to his/her veracity. S8(1)(b) EA 06 will be used by the judge to limit this to 2.
Define S8(2) EA 06 “Take into account the right of the defendant to offer an effective defence”
Nothing in s8(2) requires the admission of evidence where its unfairly prejudicial effect on a proceeding is held by a court to outweigh its probative value in the case. However, in finely balanced cases, s8(2) may make a difference – either to allow admissibility where the defence wish to offer the evidence, or to find that the evidence is inadmissible where prosecution evidence may risk an illegitimate prejudicial impact on the defence case.
What is S9(1) EA 06 Admission by agreement
Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree.
What was held in R v Hannigan in relation to S9(1) EA 06?
Highlighted that the Judge retains control of this process and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.
What is S14 EA 06 Provisional admissibility and evidence on “Hearing in Chambers”
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. If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.
What is S15 EA 06 Provisional admissibility and evidence on “Hearing in Chambers”
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. Such a hearing is commonly referred to as a ‘hearing in chambers’, or ‘chambers hearing’, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing.
Facts determined at a hearing in chambers are sometimes referred to as ‘preliminary facts’, or ‘preliminary hearing’. Section 15 applies to all witnesses (not only defendants), and to evidence given in any type of hearing held to determine the admissibility of evidence.
Evidence given at a ‘hearing in chambers’ will be admissible in other stages of the proceeding only if the evidence given by the witness at this hearing is inconsistent with the witness’s subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency.
Define the limited use of evidence and use for multiple purposes
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 co-defendants
* 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.
