Evidence Flashcards
Evidence
What is evidence?
A whole body of material which a court or tribunal (in criminal cases the Jury or Judge) may take into account in reaching thier decision.
- Evidence may be oral / written / visual.
Evidence
3 main rules of evidence?
1: How evidence may be given.
2: Who may give evidence.
3: What type of material may be given in evidence
Evidence
Admissible Evidence?
Evidence is admissble if it is legally able to be recieved in court.
Evidence.
Fact- finder
Judge or Jury
Evidence.
1: Relevance?
2: Fact in issue?
3: Weight of evidence?
4: Probative evidence?
1: Evidence is relevance if it has a tendency to prove or disaprove.
2: Prosecution must prove in order to establish the elements of the offence.
3: The weight of evidence is its value in relation to the facts in issue.
4: Probative evidence is determined by how strong evidence points to the inference. Assists in proving or disproving issues in a case.
Evidence.
1: Prejudicial?
2: Offer Evidence?
3: Give evidence?
1: Be misled by the evidence or use the evidence for an illegitimate purpose.
2: includes calling a witness who gives evidence. Also eliciting evidence by cross examinating.
3: A person recounting facts and opinions.
Evidence.
1: Verachity?
2: Propensity?
3: Direct evidence?
4: Circumstantial evidence?
1: Is the disposition of a person to refrain from lying.
2: Is a person’s tendency to act in a particular way or have a particular state of mind.
3: Any evidence by a witness as to a fact in issue which he or she has seen / heard / otherwise experienced.
4: Evidence of circumstances that do not directly prove any fact in issue.
Evidence.
Purposes of evidence law?
S6 Evidence Act 2006
Purposes.
- Providing for fact to be established.
- Providing rule of evidence.
- Promoting fairness.
- Protecting rights of confidentiality.
- Avoiding unjustifiable expense and delay.
- Enhancing access to the law of evidence.
Evidence.
Section 9 Evidence Act 2006?
Admission by agreement.
Must be agreed by both parties.
Evidence.
What is the Woolmington Principle?
Presumpton of evidence.
Burden of proof.
Prosecution needs to prove without reasonable doubt.
Evidence.
What is S.13 Criminal Disclosure Act 2008?
Full disclosure by the prosecution must be made as soon as practicable:
- After pleaded not guilty.
- When defendant (if a young person) has made a first appearance in Youth Court.
Evidence
What is standard of Proof?
- The defence only needs to proves “Balance of probability.”
- Prosecution must prove
“Beyond Reasonable Doubt”
Evidence
What is
Beyond Reasonable Doubt?
Is an honest and reasonable incertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence,
Evidence
What is
Balance of Probabilities?
Simply for the defence to show that it is more probable than not.
Evidence
Corrobaration
S121 Evidence Act 2006
Some independent evidence which implicates the defendant in the crime charge.
Evidence
Adversarial / Accusatorial.
1: Facts of the case by means of questions
2: Each party to decide what witnesses to be questioned.
3: Cross examination.
4: Judges function during trial: to ensure that the evidence is produced according to the established rules.
5: The defendant does not have to give evidence.
Evidence
Oaths and affirmations
S77 Evidence Act 2006?
12 years and over must take an Oaths or affirmation.
Witness under 12 years: The Judge must imform the importance of telling the truth and not to lie..
Evidence
The Criminal Procedure Act 2011?
Governs the conduct of all criminal trials
Evidence
S84 Evidence Act 2006
Examination of Witness;
A witness first gives evidence in chief then is allowed to be cross examined
Evidence
S90 Evidence Act 2006?
Refreshment of memory in Court.
Evidence
Initial disclosures occurs?
Generally not later then 15 working days after commencement of proceedings.
Evidence
What is s79 Evidence Act 2006?
Support and assistance in Court.
-Entitles complainants and child witnesses to have support persons plus 1 other present in a criminal proceedings.
Evidence
What is S107 Evidence Act 2006?
Special provisions for child witnesses.
If a sexual case then 106C & 106J applies instead.
Evidence
What is S71 Evidence Act 2006?
Relates to all person available to give evidence.
- S16 Evidence Act 2006 makes a person unavailable if they are unfit to be a witness because of Age / Physical / Mental condition.
- S72 Evidence Act 2006, Judges / Jurors ? Counsel. A person acting as a judge can not give evidence in a proceeding.
Evidence
What is S73 Evidence Act 2006?
Compellability of defendant and associated defendants in criminal proceedings
Unless:
- Being tried separaely from the defendant.
- The proceeding against the associate defendant has been determined.
Charged/Withdrawn/Dismissed/Pleaded Guilty.
Evidence
What is S74 & S75 Evidence Act 2006?
Other exceptions:
- S74 Judges are not compallable to give evidence.
- S75 Bank officers are not compallable to give evidence.
Evidence
What are
S54 / S55 / S56 / S57/ S58 / S59
S60 / S64
Evidence Act 2006?
Priviledge and Confidentiality.
Evidence
What are the 2 evidence characters for the Evidence Act 2006?
1: Veracity
Disposition to refrain from lying.
2: Propensity
Tendency to act in a certain/particular way.
This is offered in S41 / S42 / S43.
- If sexual then S 44-44A. Must have permission from Judge.
Evidence
What is hearsay?
A statement that was made by a person other then the witness and is offered in evidence at the proceeding to PROVE THE TRUTH OF ITS CONTENTS. (s4).
They are not admissable under S17 Evidence Act 2006.
The main exception for exclusionary rule is under S18. Admissibility of hearsay.
Evidence
A statement means?
A spoken or written assertion by a person,
or
A non verbal conduct of a person by another as an assertion of the matter
Evidence
What is S18 Evidence Act 2006?
Main acception to the hearsay rule.
2 criteria:
- Reliability
- Unavailability / Undue expense / Delay.
Evidence
What is S19 Evidence Act 2006?
Admissibility of hearsay statements contained in business records.
Business records excludes Police records / Statements / Interviews.
Evidence
What is S45 Evidence Act 2006?
Governs the admissibility of visual identification.
S45 s4(e) MALCOLM
Soon after the offence occurred and made to an officer in the course of its initial investigation.
Evidence
What is S46 Evidence Act 2006?
Governs the admissibility of vioce identification evidence.
Must prove the balance of probability and reliable identification.
Evidence
What is S28 Evidence Act 2006
Admissibility of unreliable statements
Evidence
What is S30 Evidence Act 2006?
Admissibility of improperly obtained statement.
- Improperly obtained evidence.
- Find on the Balance of probabilities whether or not the evidence was improperly obtained
Evidence
What is the purpose of S. 8 Evidence Act 2006
1: Needlessly prolonging the proceeding
2: Unfairly prejudicial effect on proceeding.
It is intended to help the judge manage the length of a trial and ensure fairness of a proceedings.
“Weighting up”
Once he or she decides that S8(1)(a) or (b) apply exclusion is mandatory.
Evidence
What is the s8 test.
1: Involves balancing the probative value of evidence against the risk that it will have an unfairly prejudicial effect on the proceeding
- S8(1)(a) Needlessly prolonging the proceeding.
- S8(1)(b) Evidence will be admitted under s8 if the probative value outweights the risk of being unfairly prejudicial effect.
- or
- Is strong enough to support a prolonging of the proceeding.
It allows the exclusion of evidence likely to be unfair.
