elements of evidence 2

Question 1

General Exclusion Provision Legislation (Section 8 Test)

Answer 1

S8 Evidence Act 2006 It is to the first type of unfairness that the general exclusion provision in S8 is directed: (Section 8 Test) (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 into account the right of the defendant to offer an effective defence.

Question 2

Provisional Admissibility

Answer 2

S14 Evidence Act 2006 Where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility. Of note If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.

Question 3

Voir Dire

Answer 3

S15 Evidence Act 2006 Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Of note Such a hearing is commonly referred to as a “voir dire”, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as “preliminary facts”. Evidence given at a voir dire will be admissible in other stages of the proceeding only if 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.

Question 4

Limited Use of Evidence 3 provisions of the act limiting the use to which some evidence can be put:

Answer 4

• s27, which controls the use of pre-trial statements of defendants and co-defendants • s31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case • s32, which forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.

Question 5

Specific restrictions aside, if evidence is admitted, for what purposes can it be used? Hart v R

Answer 5

Hart v R “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”