Chapter 1 - Introduction Flashcards
What is circumstantial evidence? (use in sentence or define) “[fact] is…
[Insert] is circumstantial evidence because it is a fact, from the existence of which the court or jury, may infer the existence of a fact in issue.
Types of circumstantial evidence (4 headings)
(1) Prospectant evidence - Can infer from the occurrence of an act, statement of mind, or state of affairs in the past that it existed at material time (i.e. continuance, course of business, habit, plan/motive, and knowledge/capacity).
(2) Concomitant evidence - Can infer from circumstances which existed contemporaneously with what is being considered by the court render allegations from probable (i.e opportunity (defendant near time/place of crime), res gestae).
(3) Retrospectant evidence - Can infer from the occurrence of an act, statement of mind, or state of affairs that is existed after the material time that they existed at that time (i.e. opposite of prospectant evidence).
(4) Other - doctrine of recent possession, finger prints, tracker dog.
Explain the rule in Jones v Dunkle…(4 parts)…too long fix
The Rule in Jones v Dunkle is….where a party is required to adduce evidence to explain or contradict a fact in dispute, raised in the pleadings or during the course of evidence, the unexplained failure to give evidence, call witnesses, tender documents or obtain expert evidence may lead to an inference the uncalled evidence would not have assisted the parties case (Jones v Dunkle rule).
A failure to call a witness can be explained where it is established by evidence that they were hostile, unavailable, or refuse to waive privilege.
The tier of fact may not infer the uncalled evidence would have been damaging or have assisted the party, however it allows the tier of fact to more readily accept the evidence which has been adduce because the uncalled evidence would not have contradicted it.
Applies in both criminal and civil proceedings.
Discuss ‘dock identification’ (fix this)
Dock Identification is where a witness gives evidence that the defendant is the person subject of the charge.
Evidence of identification which is limited to “in court” identification is particular unreliable and usual not sufficient to sustain a conviction.
Whilst admissible it may be excluded in the discretion of the court or the judge may issue a warning regarding it’s dangers.
What is the Domician warning? (Hint ID evidence) what is the effect of no warning being given? …explain using an example “…the case against the defendant….”
The case against the defendant depends to a significant degree on the
correctness of identification evidence of the defendant, which the
defendant alleges to be mistaken.
The judge must warn the jury of the dangers of convicting on identification evidence and draw the juries attention to the evidence supporting, and the weakness of, the identification (Dominican warning)
The failure to warn or an inadequate direction my result in a miscarriage of justice.
What are some of the dangers with ID evidence re reliability? (list 5)
(1) Conditions of observations: fleeting glimpse, lighting, obstructed, distance.
(2) Defective memory: Long interval between when observation is made and witness tells police
(3) Recognition: Similarity of a person known to witness is on obstacle for recognition of faces
(4) ID by police methods (i.e. photoboards) - errors in police procedures
(5) Motive of witness to ID: Revenge or scapegoat
What are the types of identification evidence?
Visual, sound (voice, coughing, breathing), touch or by smell.
What are the means of proof? (three)
(1) Testimony (direct evidence (i.e. oral evidence))
(2) Admissible Hearsay; and
(3) Things or real evidence (material objects, demeanour or conduct of witness, views, demonstrations, and documents, charts).
What is the best evidence rule (documents)?Does it apply in CTH jurisdiction?
The rule that the content of a document must be proved by the production of the original unless its absence can be explained.
Example: Original birth certificate document is primary evidence and a copy is secondary evidence.
CTH s51 Original document rule aka best evidence rule has been abolished
General rule of admissibility?
All evidence which is relevant to an issue before the court is admissible subject to exceptions (I.e. Hearsay, opinion, character evidence ect)
Explain the ‘Best Evidence Rule’ in a scenario…“If X wishes to rely upon [the document]…”
Where a party wishes to rely upon a document the original should be tendered because it is primary evidence of its content aka the ‘best evidence’ whereas a copy is secondary evidence…unless it can be proven the document is lost or destroyed.
QEA exception to rule s97 no requirement to prove existence of original if document is authenticated.
Abolished CEA s51.
What is the threshold for something to be relevant? (refer to EAQ, EAC, CL)
Threshold for relevance is low. For evidence to be relevant its only required that the evidence if it were accepted could rationally effect (directly or indirectly) the assessment of a fact in issue (s55). If evidence is irrelevant it is not admissible (s56).
EAQ - N/A
EAC - ss 55-56
CL - Wilson v R
What is the relationship between weight and admissibility?
Admissibility is a question of law for the judge, whereas weight is a question of fact for the jury.
When does the CTH Evidence Act Apply?
s4-5 Applies to all federal court proceedings (i.e. Family law court) and matters that apply to all Australian courts.
At an hearing an opponent asks a question which is objectionable. What should counsel do and why is it important to object?
Counsel should object to the question to protect the client’s interests. The question is objectionable because [INSERT]. If the question is not withdrawn by questioner, counsel should obtain a judicial ruling. The failure to object may create issues on appeal as its suggests the trial counsel’s view was there there was no prejudice to a fair trial.
If the question is answered before the objection is successfully made and an answer is given should make an application to strike answer out or disregard.
