Chapter two: Elements of evidence

Question 1

The Act aims to “help secure the just determination of proceedings” through the six objectives set out in s6:

Answer 1

(a) facts to be established by the application of logical rules
(b) providing rules of evidence that recognise the importance of BOR act 1990
(c) promoting fairness to parties and7 witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.

Question 2

What makes good evidence?

Answer 2

• Facts that prove the charge
• Facts in issue
• Circumstantial evidence

Question 3

Facts that prove the charge

Answer 3

Facts must prove the elements of the charge

evidence should be made up of facts that prove that charge

Question 4

Facts in issue

Answer 4

These are facts which need to be proven to succeed with a case.

These are usually alleged by the charging document and denied by a plea of NG

Question 5

Circumstantial evidence

Answer 5

Is a fact from which the judge or jury infer the existence of a fact in issue.

offers indirect proof of a fact in issue.

Question 6

General rule of evidence

Answer 6

All facts in issue and facts relevant to the issue must be proved by evidence

Question 7

Two main exceptions to the general rule of evidence where no evidence needs to be given of facts because:

Answer 7

• judicial notice is taken

- the facts are formally admitted

Question 8

JUDICIAL NOTICE

Answer 8

court declares that it will find that the fact exists
or will direct the jury to do so
even though evidence has not been established that the fact exists.

Question 9

In relation to judicial notice, what is s128 concerned with?

Answer 9

Facts that are facts in issue/ relevant to a fact in issue.
128(1) concerns notice of facts known and accepted generally or in the locality. This allows for facts to be judicially noticed even where the facts are not known in the wider national population eg date of a an annual carnival.

Question 10

in relation to judicial notice, what is s129 concerned with?

Answer 10

Common law exception to the hearsay rule that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature

Question 11

Facts formally admitted

Answer 11

in trial, counsel for either party can accept that some evidence is accepted or proven at the outset

Question 12

presumptions

Answer 12

where no direct evidence is offered or obtainable, disputed facts are sometimes inferred from other facts which are themselves proved or known

Question 13

presumptions of law

Answer 13

inferences that have been expressly drawn by law from particular facts
either conclusive or rebuttable
eg conclusive and irrebuttable that a child under 10 cannot be convicted

Question 14

presumptions of fact

Answer 14

Those that the mind naturally and logically draws from the given facts.
Eg one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

Question 15

true or false: presumptions of fact are always rebuttabe?

Answer 15

True. Presumptions of fact are simply logical inferences, and so are always rebuttable

Question 16

principals in determining admissibility?

Answer 16

• relevance
• reliability
• unfairness

Question 17

relevance: section 7(3)

Answer 17

it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Question 18

when is relevant evidence be inadmissible?

Answer 18

Evidence that is:

Inadmissible or Excluded under this act or any other act

Question 19

is relevance alone sufficient for evidence to be admitted?

Answer 19

No.

Question 20

Evidence is to be excluded if it would result in unfairness. What two ways does this issue usually arise?

Answer 20

• 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 if it has been obtained in circumstances that would make its admissions against the defendant unfair.
  Most obvious example: defendants statement obtained by unfair or improper methods

Question 21

general exclusion (the s8 test). In any proceeding, the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will-

Answer 21

a) have an unfairly prejudicial effect on the proceeding or

b) needlessly prolong the proceeding

Question 22

what is an example of evidence that would needlessly prolong the proceeding?

Answer 22

A defendant wishes to call 20 witnesses to give evidence on his or her veracity

Question 23

explain evidence subject to further evidence

Answer 23

The judge may admit the evidence subject to further evidence being offered later which establishes its admissibility. If the other evidence is not forthcoming the provisionally admitted evidence must be excluded

Question 24

Section 15 / voir dire / prelim facts

Answer 24

evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding

Question 25

evidence given at a voir dire will be admissible in other stages of the proceeding only if:

Answer 25

the evidence given by the witness at the voir dire is inconsistent with the witness’s subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency