Elements of Evidence

Question 1

What is the purpose of evidence law? (section 6 of the Evidence Act 2006)

Answer 1

“to help secure the just determination of proceedings”, by-

a) providing facts to be established by the application of logical rule
b) providing rules of evidence that recognise the importance of BORA 1990
c) promoting fairness to parties and witnesses
d) protecting rights of confidentiality
e) avoiding unjustifiable expense and delay
f) enhancing access to the law of evidence.

Question 2

What are facts in issue?

Answer 2

Facts which in law need to be proven to succeed with the case. In criminal cases, usually those alleged by the charging document and denied by a plea of not guilty

Question 3

What are facts relevant to the facts in issue

Answer 3

Facts that tend to prove or disprove a fact in issue.

if the only facts open to proof or disproof are facts in issue, the case simply cannot be proven.

Question 4

What is circumstantial evidence

Answer 4

is a fact from which the judge or jury may infer the existence of a fact in issue. Offers indirect proof of a fact in issue. Cumulatively can be viewed as a while, and eventually be sufficient to prove guilt.

Question 5

General rule of evidence, and two exceptions:

Answer 5

A general rule of evidence s that all facts in issue and facts relevant to the issue must be proved by evidence.

Two main exceptions when no evidence needs to be given if facts because:

• judicial notice is taken
• the facts are formally admitted.

Question 6

What is judicial notice?

Answer 6

When a curt takes a JN of a fact, it declares that it will find a fact exists (or will direct a jury to do so).

Question 7

Two sections of the Evidence Act 2006 which provide for judicial notice?

Answer 7

s128: Notice of uncontroverted facts (facts relevant to the fact in issue)
s129: admission of reliably published facts (facts known and accepted generally, or in the locality)

Question 8

What are presumptions

Answer 8

An inference where, when no direct evidence is offered or attainable, disputed facts are inferred from othr proven or known facts.

Inferences may be of law or of fact.

Question 9

Presumptions of law

Answer 9

Inferences expressly drawn by law of particular facts

May be conclusive or rebuttable.

Question 10

Presumptions of fact

Answer 10

Those the mind naturally or logically draws

Simply logical inferenes, so always rebuttable.

Question 11

What is admissabillity according to R v Burrows

Answer 11

“…admissability is essentially a questions of law which has no room for the application of the varying standards of proof. Any evidence on which an individual or juror might rely in reaching a conclusion as to guilt is admissable”

Question 12

In deciding whether evidence is admissable, the courts have reference to what three principles of evidence law?

Answer 12

• relevance
• reliability
• unfairness

Question 13

Section 7 of the Evidence Act 2006: Relevance

Answer 13

All relevant evidence is admissable in a proceeding, except evidence that is-

a) inadmissable under this act r any other act
b) excluded in this act or any other act

Question 14

Definition of relevant evidence

Answer 14

“evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”

Question 15

How admissability and relevancy affect each other:

Answer 15

Irrelevant facts will always be inadmissable; relevant facts or not always admissable (eg evidence that was improperly obtained).

Relevance is therefore a necessary but not sufficient condition of admissability under the Evidence Act 2006.

Question 16

Fairness and the general rule of exclusion under s8 Evidence Act 2006:

Answer 16

Evidence may be excluded if it will:
1(a) have an unfairly prejudicial effect on the proceeding
1(b) needlessly prolong the proceeding
2 have an unfairly prejudicial effect of criminal proceeding (must take in to account

Question 17

What is the s8 test?

Answer 17

Involves balancing the probative value of evidence against the risk that it will:

• “have an unfairly prejudicial effect on the proceeding”
• “needlessly prolong the proceeding”

Question 18

What does the risk of “unfair prejudice” refer to?

Answer 18

the danger that a trier of fact will give some piece if evidence more weight than it deserves, be misled by evidence, or use evidence for an illegitimate purpose.

Question 19

What does section 8(2) reflect?

Answer 19

“the right of the defendant to offer an effective defense”

• reflects the rights of criminal defendants to present a defense
• reflects the right to a fair trial BORA 1990

Question 20

Admission by agreement

Answer 20

Occurs under section 9(1): even if not otherwise admissable, may be admissable if both parties agree. The judge retains control of this process, and may still decline to admit the evidence.

Question 21

Provisional admissability

Answer 21

s14: if questions arise over admissability of evidence, judge may admit it, subject to further evidence offerred at a later ate which establishes admissability.

Question 22

“hearing in chambers”

Answer 22

s15: evidence given by a witness to prove facts necesary for deciding whether some other evidence should be admitted. The jury is usually excluded for the duration of the admissability hearing.

Question 23

Provisions of the act which specifically limit the use to which some evidence can be put:

Answer 23

s27: controls the use of pre-trial statements of defendants and co-defendants
s31: forbids the prosecution from relaying on certain evidence offered by defendants in a criminal case
s32: forbids the fact-finder from using a criminal defendants pre-trial silence as evidence of guilt.