Chapter 1 Flashcards

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1
Q

Which proceedings does the Evidence Act NSW apply to?

A

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.

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2
Q

When must/should a court make a direction that the EA applies to sentencing under s 4?

A

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)).

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3
Q

What is the impact of the evidence act on common law and equity?

A

No impact unless otherwise provided (s 9)

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