Evidence Flashcards
Define hearsay statement
A statement made by a person other than a witness which is offered in evidence to prove the truth of its contents
Define veracity and propensity
Veracity is the disposition to refrain from lying, propensity is the tendency to act in a particular way or have a particular state of mind
Outline section 7 the fundamental principle that relevant evidence is admissible
All relevant evidence is admissible except evidence inadmissible or excluded under this or any other act, evidence is relevant if it has a tendency to prove or disprove anything of consequence
Outline section 8 the general exclusion of evidence that is otherwise relevant
The judge must exclude evidence if its probative value is outweighed by the risk it will have an unfairly prejudicial effect or needlessly prolong matters. It applies even for evidence admissible under another provision of the act.
How can unfair prejudice arise?
The jury may give evidence more weight than it deserves, be misled by it, speculate inappropriately about its meaning, or use it for an illegitimate purpose
What are the dangers of admitting evidence for one purpose which is regarded as if relevant prejudicial or unfair for some other purpose?
The jury may fail to draw a distinction between one purpose and another and thus misuse the evidence, courts try to minimise this danger by giving appropriate direction to the jury
Outline section 14 provisional admissibility of evidence and voir dire
The judge may admit evidence subject to evidence being later offered establishing its admissibility. Voir dire evidence is only admissible if it is inconsistent with the witnesses subsequent testimony
Explain and evidential burden upon the defence
An issue cannot be considered by judge or jury unless it has been made a live issue by the defence, once it is live the prosecution must destroy the defence as they retain the burden of proof
In what situations is the legal burden clearly placed upon the defendant?
The defence of insanity and public welfare regulatory offences
In what situations is the uncorroborated evidence of a single witness insufficient to prove a case?
Perjury and treason, and there is no requirement for a general warning about relying on uncorroborated evidence
What are the requirements for oaths and affirmations?
Witnesses under 12 must promise to tell the truth although if the judge advises the importance of telling the truth and not telling lies, they may allow any person to give evidence without oath, affirmation or promise. This applies to intellectually disabled people and children
In what situation can leading questions be asked in examination in chief and re-examination, section 89
Introductory or undisputed matters, with the consent of all parties, or in the judges discretion. For example to direct the witnesses attention to identification, questions about surrounding circumstances, for very young persons or with limited English or limited intelligence or hostile witnesses
In what circumstances can a witness refresh their memory in court from a document?
With the leave of the judge, showing the document to every other party, from a document made or adopted by a witness when their memory was fresh. The document must have been made by the witness, or by another person in their presence, and assented to by the witness
Outline section 35 the previous consistent statements rule
Such statements are inadmissible unless necessary to respond to a challenge to veracity or accuracy or a claim of recent invention. Consistent statements are admissible if circumstances reasonably assure they are reliable and the statement provides information the witness is unable to recall
Explain the duty to put the case
A party intending to call evidence which will contradict the evidence of an opposing witness should put that contradictory material to the witness so they have an opportunity to comment on it or explain it. If not the judge may allow the witness to be recalled, qualify the evidence, or exclude it
