Evidence Flashcards
Discretion to exclude evidence - criminal proceedings
Statutory
ss135-137 EAC, plus a probable right to exclude evidence presented unfairly
Note: s137 only applies to prosecution evidence, no co-accused evidence
s130 EAQ - unfair to person charged, only exclude where slight probative value and prejudicial effect is substantial
Common law
If prejudicial effect exceeds probative value - R v Christie
Disallow CX on an accused’s criminal record
Reject a confession if unfair to use against accused - R v Ridgeway
Reject evidence, including confession, if unlawfully obtained - R v Ireland; Bunning v Cross
Residual discretion to reject any evidence if the strict rules of admissibility would operate unfairly against accused
Non-opinion expert evidence and non-expert opinion evidence
Non-opinion expert evidence - to identify facts which may be obscure or invisible to a lay witness. E.g. a chemist called to explain how/why a drug operates on the human body in a certain way
Non-expert opinion evidence - pseudo-expert evidence. E.g. a non-expert familiar with a machine may give evidence about the machine’s tendency to behave in a certain way under certain circumstances
Arguments against receiving hearsay
- Hearsay is not the best evidence (but often there may be no better evidence)
- Hearsay is not given on oath/affirmation.
- Hearsay may be concocted (but so may other evidence) and no opportunity to cross-examine
- Jury may be unable to appreciate difference in weight between direct/hearsay evidence (but this is questionable noting submissions by counsel)
- Danger of inaccuracy through repetition
Hearsay - common law exceptions (general list)
- Res gestae - R v Ratten
- Declarations by persons now deceased
-Dying declarations - R v Peel
-Dying declaration in course of duty
-Dying declaration against pecuniary or proprietary interest - Declarations as to health/fitness/mental state and contemporaneous statements about thoughts/feelings - Walton v The Queen
- Statements made in previous/earlier proceedings - R v Thompson
- Custody proceedings
- Informal admissions and confessions
- Telephone exception
Considerations for R v Ireland ‘unfairness’ particularly for confessions (including ‘sting’ operations)
- Unfairness to the accused: Ridgeway v R
- Community interests in prosecution/punishment of crime: R v Ireland
- Discouragement of unlawful/improper prosecuting/enforcement behaviour: Cleland v R
- Seriousness of offence charged/protection of public/persons
- Degree of perfidy (deceitfulness/untrustworthiness) and active inducement by the authorities (e.g. police officer posing as lawyer/priest would seriously taint)
When is evidence of previous/other bad behaviour permitted?
Three circumstances:
1. Where accused suggests he/she is of ‘good’ character, which the prosecution is entitled to rebut.
2. Where accused attacks character of a prosecution/co-accused witness and the prosecution can respond ‘in kind’.
3. SIMILAR FACT EVIDENCE - i.e. where the prejudicial effect is outweighed by the particular probative value/cogency: Pfennig v The Queen.
What is the ‘General Rule’ for proof of the contents of documents? What are the exceptions (i.e. when can contents of a document be proved by secondary evidence)?
The General Rule - A party relying on the words used in a document for any purpose other than simply identifying it must, as a general rule, adduce primary evidence of its contents.
Exceptions:
1. Original is in the possession of control of the opponent of the part wishing to rely on the document, and the opponent fails to produce it after receipt of a notice requiring production
2. Document is in the possession of a stranger who lawfully refuses to produce it after service of a subpoena for production.
3. Original cannot be found after due search.
4. Production of the original is practically impossible (e.g. inscriptions on tombstones).
5. Production of the original would be highly inconvenient owing to the public nature of the document.
6. Entry in a banker’s book or book or account.
7. Where reproductions of documents made by photography or other recognised processes are by statute made as admissible as the original would have been (consider 104-129 EAQ and 47-49 and 51 EAC).
Forms of identification evidence
Recognition: witness positively able to state accused person is responsible
Resemblance: witness can only state the accused resembles the person responsible
Distinction characteristics: accused and person responsible have same distinctive characteristic/s
Note: only recognition is sufficient to support a conviction in isolation; others only circumstantial evidence.
Competence and compellability of co-accuseds
Four situations:
1. Accused as a witness for the Crown against themselves – incompetent (conflicted)
2. Accused as a witness for a co-accused – competent but not compellable: section 8(1) EAQ
3. Accused as a witness for the Crown against a co-accused – incompetent (but their own defence evidence might assist the Crown against a co-accused)
4. Accused as a witness for the Crown against another accused (but not co-accused) – competent and compellable (hence why plea deals) - but that witness might be biased in favour of the prosecution and therefore judge has discretion to exclude the evidence: R v Turner on the basis that the prejudicial effect outweighs the probative value.
Taylor’s Test
To determine the incidence of the burden of proof, consider: (i) which party would succeed if no evidence were given on either side and (ii) what would be the effect of striking out the allegation to be proved? The onus lies on whichever party would fail as a consequence of one or both of these steps being taken.
Degrees of proof - particular cases
Adultery
Contempt of court
Sentencing
Exemplary damages
Professional disciplinary proceedings
Adultery - civil
Contempt of court - criminal
Sentencing - civil if in accused’s favour; criminal if against accused
Exemplary damages - civil
Professional disciplinary proceedings - civil
