ELEMENTS of EVIDENCE

Question 1

What section of the Evidence Act sets out the purpose of the act?
What does it say:

Answer 1

Section 6
The purpose of the act is to help SECURE THE JUST DETERMINATION OF PROCEEDINGS by:
(a) Establishing facts through LOGICAL RULES
(b) Rules of evidence that recognise the BILL OF RIGHTS
(c) Promoting FAIRNESS to parties and witnesses
(d) Protecting CONFIDENTIALITY and other important public interests
(e) AVOIDING unjustifiable EXPENSE and DELAY
(f) Enhancing access to the LAW OF EVIDENCE.

Question 2

What are the FACTS IN ISSUE?

Answer 2

The facts that need to be proven to succeed with the case.

They are the facts which are 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

These are the facts SUPPORTING the facts in issue. For example, Circumstantial facts that prove a fact in issue.

Question 4

What is CIRCUMSTANTIAL EVIDENCE?

Answer 4

It’s evidence that CONTRIBUTES INDIRECT PROOF of the fact in issue.

Question 5

What is meant by the GENERAL RULE OF EVIDENCE?

Answer 5

All the FACTS IN ISSUE and FACTS RELEVENT TO the facts in issue, must be proved by the EVIDENCE.

Question 6

What are the two exceptions to the general rule:

Answer 6

The two main exceptions to the general rule are when NO EVIDENCE needs to be given of the facts because:
* JUDICIAL NOTICE is taken
* the facts are FORMALLY ADMITTED

Question 7

What is JUDICIAL NOTICE?

Answer 7

When the Court DECLARES THE FACT EXISTS without requiring evidence to be brought to prove it.

It’s used for facts that are reasonably accepted like a human being a person or the date of Christmas being on the 25th of December.

Question 8

How does JUDICIAL NOTICE section 129 relate to the hearsay rule?

Answer 8

It provides an EXCEPTION to the hearsay rule by admitting accredited histories, scientific works and maps as evidence in order to prove facts of a public nature.

Question 9

What is meant by FACTS FORMALLY ADMITTED?

Answer 9

Facts ACCEPTED BY EITHER PARTY at the outset, dispensing any proof of that fact.

Question 10

What is PRESUMPTION

Answer 10

Something PRESUMED BASED ON OTHER FACTS but no direct evidence of its own.

Question 11

What are PRESUMTIONS OF LAW?

Answer 11

Presumptions of law refer to premises coded into law. They can be either:
CONCLUSIVE - e.g. a child under 10 can’t be convicted. Or
REBUTTABLE - e.g. a defendant is innocent until proven guilty.

Question 12

What are PRESUMPTIONS OF FACTS?

Answer 12

LOGICAL YET REBUTTABLE INFERENCES FROM THE FACTS. E.g. the presumption that a person has guilty knowledge if they have possession of recently stolen property. It’s a logical conclusion but can be rebutted.

Question 13

What is ADMISSIBILITY?

Answer 13

It’s evidence that can be LEGALLY RECEIVED by the court.

Question 14

Who decides on ADMISSIBILITY?

Answer 14

The judge

Question 15

Who hold the burden of showing evidence is admissible?

Answer 15

Burrows:
The party bringing that evidence.

Question 16

According to Burrow, what determines whether something is admissible?

Answer 16

Any evidence on which an individual juror might RELY in reaching a conclusion as to guilt is admissible.

Question 17

Does the crown have to prove beyond reasonable doubt the admissibility of the evidence being brought?

Answer 17

No. There are no varying standards of admissibility. Just that the evidence is NECESSARY FOR A JURY IN REACHING A CONCLUSION AS TO GUILT.

Question 18

When deciding upon admissibility, what are the three principals of evidence law:

Answer 18

(1) Relevance
(2) Reliability
(3) Unfairness

Question 19

What is meant by RELEVANCE?
In other words, what is RELEVANT EVIDENCE?

Answer 19

s7(3):
Evidence that has a tendency to prove or disprove anything that is of consequence to the DETERMINATION of the proceeding.

Question 20

Can all RELEVANT evidence be admitted?

Answer 20

Relevance is a NECESSARY but not a SUFFICIENT, condition of admissibility under the Evidence Act 2006.

E.g. Evidence improperly obtained could be relevant but not admissible.

Question 21

What two reasons might relevant evidence be excluded:

Answer 21

(1) It is ruled inadmissible e.g improperly obtained.
(2) It is excluded under Act.

Question 22

What bearing does RELEVANCE have on the admissibility of evidence?

Answer 22

(1) It may attract a judicial warning for unreliability
(2) The Act contains some EXCLUSIONARY RULES that look to reliability, including hearsay and identification evidence.

Question 23

What is the Section 8 test?
In other words, the judge weighs up the probative value of the evidence against what two thing:

Answer 23

The risk that it will:
(a) Have an UNFAIR PREJUDICIAL EFFECT on the proceeding
(b) Needlessly PROLONG the proceeding

Question 24

Give 4 examples that would be considered UNFAIR PREJUDICE:

Answer 24

Danger that the trier of the facts will:
(1) Give the evidence more WEIGHT than it deserves
(2) Be MISLED by the evidence
(3) Use the evidence for ILLEGAL purposes
(4) Be DRAWN AWAY from the real issue in the trial.

Question 25

Section 8(1)(b)
Give an example of when relevant evidence may be excluded due to the risk it may needlessly prolong the proceeding?

Answer 25

A defendant wishes to call 20 witnesses to give evidence as to his veracity.

The Judge may limit this to one or two witnesses.

Question 26

s8
General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a) have an unfairly PREJUDICIAL effect on the proceeding; or

(b) needlessly PROLONG the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an UNFAIRLY PREJUDICIAL EFFECT on a criminal proceeding, the Judge must take what into account?

Answer 26

s8(2):
The right of the defendant to offer an EFFECTIVE defence.

Question 27

What does s9(1) allow for?

Answer 27

AMISSION BY AGREEMENT:

The admission of evidence not otherwise admissible, where the parties agree.

However, the Judge retains control of the process and may still decline to admit the evidence or not allow it in the form agreed by the parties.

Question 28

What is section 14 PROVISIONAL EVIDENCE?

Answer 28

The Judge may admit the evidence subject to further evidence which ESTABLISHES ITS ADMISSIBILITY.

(If it is not forthcoming, the provisional evidence must be excluded).

Question 29

What is section 15, HEARING IN CHAMBER?
Or Preliminary Facts, or Preliminary Hearing.

Answer 29

A hearing to determine the admissibility of evidence.

Question 30

Who is not permitted in a Preliminary Facts hearing?

Answer 30

The Jury. Because it is a hearing to determine the admissibility of evidence. The Jury can’t unhear the evidence submitting in a preliminary hearing if it is ruled inadmissible.

Question 31

When would a Judge decide to hear evidence in chambers when it is already known to be inadmissible?

Answer 31

When the otherwise inadmissible evidence could be made admissible in order to demonstrate consistency.

For example, that the witnesses evidence given at one stage is inconsistent with evidence given at a later stage. The evidence heard in chambers may be made admissible at the later stage to reveal the inconsistency.

Question 32

Hart says that evidence is either admissible for ALL purposes or it is not admissible at all.

What is an exception to this?

Answer 32

Where there is a JUDGES WARNING to the jury against reliance on some types of evidence for certain purposes.

Question 33

What two ways does unfairness usually arise, leading to its exclusion?

Answer 33

(1) If its admission would result in some unfair prejudice in the proceeding
(2) If it were obtained unfairly, therefore making its admission unfair.