Evidence Flashcards
What are the three types of admissible evidence?
- Documents
- Witness Evidence (fact and expert)
- Real Evidence
What power does the court have regarding evidence?
- Control the issues on which it requires evidence
- Control the nature of the evidence it wants
- Control the way the evidence is to be placed before the court
What is a witness statement?
A signed statement containing the evidence a person would give orally and serves as the witness’es evidence in chief at trial.
It is exchanged to save time and costs at trial and helps facilitate settlement.
What happens to a witness at trial?
- Confirm truth of contents of the witness statement in the witness box
- Cross-examined by the other party
- Re-examined by their own party
What directions does the court give at the allocation and case management stage?
- Date of exchange with the other party
- Limit issues and identify witnesses
- Limit number, length, or format of statements
- Specify order of service for witness statements
What are the consequences of not serving a witness statement on time?
The witness may not be called to give oral evidence unless the court gives permission - apply for relief from sanctions to avoid this
When are witness statements served relatie to disclosure and inspection?
Witness statements come after disclosure and inspection - they may need to refer to disclosure documents
What can parties agree regarding witness statement deadlines?
Extensions of up to 28 days for serving (and filing if ordered) witness statements without court approval.
If the extension affects a key date, an application should be made to the court.
What is the general rule regarding amplification of evidence?
The court is unlikely to permit amplification of evidence that is a late or unjustified change of tack.
What is the general rule regarding witness evidence for interim applications?
Any fact needing proof by evidence of witnesses other than for trial is to be proved by their evidence in writing.
Typically, no oral evidence or cross-examination is allowed.
What should the content of witness statements cover?
- Every fact that needs to be proved
- In the witness’s own words
- Identify argument and legal basis and provide supporting facts
What is the general rule regarding the admissibility of opinion evidence?
Opinions of witnesses are not admissible, except for perceived facts and expert evidence.
Perceived facts refer to observations like ‘the car was driving fast.’
What must witness statements be verified by?
A statement of truth.
A witness making a statement without honest belief in its truth may face contempt of court proceedings.
Can witness statements be used in other proceedings?
Genearlly witness statements can only be used for the proeedings in which it is served
UNLESS: the witness or the court has given permission or it has been put in evidence at a public hearing.
What are the key components of the form of a witness statement?
- Heading and endorsement
- Information and belief paragraph
- Capacity, address, occupation
- How statement was made (must be a specific person)
What additional paragraphs are required in statements used for interim hearings?
- Request what they want the court to do with the application.
This specifies the purpose of the interim application clearly.
What is an affidavit?
An affidavit is a written statement of evidence that is sworn before a person authorised to administer affidavits.
When is an affidavit required?
An affidavit is required when mandated by the court or rule for evidence of fact.
Who is a deponent?
A deponent is a person who gives evidence via affidavit.
What is included in the form of an affidavit?
- A statement that it is stated on oath
- Specific wording for exhibits
- Ends with a Jurat.
What does the Jurat in an affidavit contain?
A Jurat contains details of the person in front of whom the affidavit was sworn.
