Evidence Flashcards
Admissibility - what are the three main reasons for excluding evidence?
General rule - all admissible evidence must first be relevant BUT not all relevant evidence will be admissible.
- Exclusion on the grounds of unreliability (Hearsay)
- Exclusion on the grounds of tendency to mislead (degree of relevance and weight) Q: is the logical probity outweighed by it’s prejudicial effect. Example = Similar fact evidence.
- Exclusion on the grounds of public policy. Privilege, consider also illegally or unlawfully obtained evidence.
What is the rule in Browne v Dunn and when does it apply?
The rule applies in both civil and criminal cases.
If you want to make a submission or lead evidence which contradicts the evidence of a witness, you MUST first put the alternate version to the witness so that they have an opportunity to comment on it.
The rule does not compel defence to clear up any inconsistencies in the Crown case.
The rule is applicable to cross-examination of an expert witness.
What are two consequences of breaching the rule in Browne v Dunn?
- Judge may rule that the party who failed to put certain allegations to the witness cannot lead evidence of these allegations in chief when their turn comes to present their case.
- The Judge may recall a witness so that the allegations may be put to them and they have an opportunity to answer.
What is relevant evidence?
Relevance is the relationship which exists between two facts.
A fact must be (sufficiently) relevant to be admissible. (CTH s56)
- Smith v The Queen (2001) - if the evidence is not relevant no further question arises about it’s admissibilty.
- IMM v The Queen (2016) - The HC applied the s55 CTH test and said evidence with ‘only some, even slight probative value’ will be prima facie admissible.
- CTH s55(1)
What is circumstantial evidence?
Indirect evidence of a fact in issue.
Example: A is charged with assault on B. W testifies they saw A running away from the scene immediatley after hearing B cry out in pain.
W direct evidence A ran away, and circumstantial evidence A assaulted B.
Give some examples of circumstantial evidence.
-DNA
-Fingerprints
-Handwriting
-Dental records
What is direct evidence?
Evidence that leads directly to the proof of a fact in issue.
Example: A is charged with assault on B. W testifies they saw A running away from the scene immediatley after hearing B cry out in pain.
W direct evidence A ran away, and circumstantial evidence A assaulted B.
Explain the difference between prospectant, concomitant and retrospectant evidence.
-Prospectant: includes events that occur BEFORE the event under enquiry but which shed light on what happened. (Circumstantial)
-Concomitant: includes the main event into which the court is inquiring. The moment of substantive importance (MSI). (Can be Cirumstantial OR Direct)
-Restrospectant: events that occur AFTER the event the court is enquring but shed light on what happened. (Circumstantial)
What is the rule in Jones v Dunkel?
Failure by a party to call a material witness.
If it appears a witness other than those called to give evidence might have been able to give some relevant evidence on an aspect of a case, the fact finder may find/infer that nothing the witness could have said would have assisted the case.
Cannot infer that the evidence would have damaged the case, but that it would not have assisted.
What is an example where Jones v Dunkel may not apply?
See Dyers.
As a general rule does not apply to the failure of defence in criminal trial to give or call witness.
Exceptions to that rule will be rare and a referred to in Azzopardi.
Does not apply against the prosecution UNLESS the prosecutions failure to call a material witness was in breach of the prosecutors duty to call a material witness.
What is the Azzopardi Rule?
Defendant not giving evidence, where an adverse inference may follow from that.
Conclusion of Guilt may be more safely drawn from the proven facts when a defendant elects not to give evidence of relevant facts which, if they exist, must be within the defendants knowledge.
Cannot assume because defendant does not give evidence that he is guilty. He is not bound to give evidence.
What is a leading question?
One which either:
a) suggests the desired answer to the witness (he hit you didn’t he); OR
b) assumes a fact which has yet to be established by the evidence (what did you do after he hit you?)
Give an example of a leading question.
The accused was carrying a gun wasn’t he?
What was the accused carrying?
Give an example of a non-leading question.
Was the accused carrying anything?
If yes, what was it?
What is the test in Briginshaw v Briginshaw?
When applying a civil standard of proof, it is only common sense for a rational tribunal of fact which is deciding wherther evidence actually proves a fact, to bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence.
AKA
When considering the probative value of the evidence led to prove a fact in issue, the tribunal of fact ought bear in mind the seriousness of the allegation in issue and the gravity of the consequences of a finding.
AKA
The nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
CTH - s140(2)
What can you ask in re-examination?
Only questions about issues that arose in cross-examination.
Cannot use re-examination to raise new issues which were forgotten in evidence in chief.
Must be a need to re-examine.
Prior inconsistent statements.
Does not necessarily render sworn evidence neglibile, depends on the circumstances.
The statement cannot be treated as proof of facts stated unless the maker of the statement happens to be a party to the proceedings, in which case it may be recieved as an admissions OR unless it is recieved under the statutory exceptions to the hearsay rule (e.g Business Records).
