Evidence Flashcards
Who has the burden of proof? When is the general rule varied?
The claimant has the burden of proof regarding each alleged fact, unless admitted.
The defendant may have the burden of proof depending on the defence, e.g. contributory negligence.
What should a be included in a witness statement?
An honest account of relevant facts, which are in dispute, in the proceedings.
Irrelevant facts are inadmissible, e.g. how the witness got to a location.
What is the general rule on opinion evidence in witness statements?
Opinion evidence, unless provided by an expert, is not admissible.
E.g. in my opinion D was negligent, this is for the judge to determine, not the witness.
What is the exception to opinion evidence?
A witness may give an opinion if it was regarding facts personally perceived by them.
E.g. D was drunk, or D was driving around 60mph. They give the facts that supported their opinion.
What is hearsay evidence?
A statement made outside court;
Which is repeated in court;
To prove the truth of the matter stated.
E.g. someone says ‘sorry I was on my phone’ after hitting you with their car, it is hearsay if you produce this in court as you are hoping the court rely on the truth of this information to prove the matter stated.
What is NOT considered hearsay?
When the person introducing the oral evidence isn’t using it to prove its truth.
Rather, it will be repeated to state that it was said.
E.g. saying a travel agent told you a hotel was 5, despite it being 2. This isn’t proving the truth of the matter, this is saying you’ve been lied to and that it was said.
What are the notice requirements for hearsay?
If a witness statement contains hearsay evidence and the witness is being called to trial, no formal notice is required (service of the witness statement is enough);
If the witness isn’t being called to trial, a hearsay notice must be served, and the statement may have less weight attached to it
What happens if a witness isn’t called to give oral evidence despite writing a witness statement?
The whole statement is considered hearsay evidence.
On what five grounds can hearsay evidence be challenged?
(a) by asking whether it would have been reasonable to call the maker as a witness;
(b) whether the original statement was made soon after the event;
(c) whether the evidence is multiple hearsay;
(d) whether the person had a motive to lie;
(e) whether the original statement was edited
What is the experts duty when providing evidence?
To assist the court with the matter in issue, not to act as an advocate for either party.
Can a party call an expert witness without the permission of the courts?
No, the judge must be sure that expert evidence is necessary to determine an issue in proceedings.
What do the court consider when appointing a single joint expert?
Several considerations:
(a) whether it is proportionate to have separate experts for each party;
(b) if the SJE can resolve the issue more speedily in a more cost-effective way; and
(c) there is likely to be a range of expert opinion
What is the procedure with separate experts?
- Each party can put written questions to the experts within 28 days (failure to answer makes the part of the report questioned inadmissible);
- Court orders a discussion between experts to identify points of disagreement and how to resolve these;
- After the discussion, there is a written joint statement on issues they agree and on which they disagree.
