Chapter 1 Flashcards
Which proceedings does the Evidence Act NSW apply to?
All proceedings in a NSW Court (defined in Dict) (s 4), including those relating to bail (subject to Div 4, Part 3 of the Bail Act) and sentencing, if the Court directs the law of evidence applies (and the Court can direct it applies only in relation to specified matters - see s 4(2)). See other flashcard for when should be made.
When must/should a court make a direction that the EA applies to sentencing under s 4?
A direction under s 4 of the Act must be made where if a party applies for such a direction in relation to a proof of fact, and, in the court’s opinion, the proceeding involves proof of that fact, and the fact is or will be significant in determining a sentence to be imposed (s 4(3)). The court must also make such a direction if it is required in the interests of justice (s 4(4)).
Direction should be given in accordance with the s 192(2) considerations (Stanoevski).
Where sentencing is shortly following a trial, a direction should ordinarily be made so that the Act applies (Lewis). If no direction is made, the common law applies to such proceedings (Bourchas).
Even if a direction is made, and the Act applies, Part 3.6 of the Act (tendency and coincidence) does not apply to sentencing proceedings (s 94(2)).
What is the impact of the evidence act on common law and equity?
No impact unless otherwise provided (s 9)
