Evidence Flashcards
What is the definition of Evidence?
‘Evidence consists of facts, testimony, documents and physical exhibits which may legally be admitted in order to prove or disprove the matter under enquiry.’
What are the Points of Proof in regards to the charge of theft? (6)
- Identity of the accused.
- Dishonestly.
- Appropriated.
- Property.
- Belonging to another.
- With intent to permanently deprive.
What determines the admissibility of evidence?
The inclusionary and exclusionary rules.
What is the primary inclusionary rule for evidence?
Relevance. All evidence submitted must have a minimal involvement with the facts in issue.
What are the four rules of evidence admissibility?
- Hearsay.
- Opinion.
- Character.
- Discretion to exclude evidence.
What is Hearsay defined as?
An out of court statement (oral, written or otherwise) made by a person other than the witness who is testifying and being said to prove the truth of what is contained in the statement.
What questions can be used to determine is a statement is Hearsay?
- Was it an out of court statement when first said?
- Is it being said in court by a person who was not the original speaker?
- Is it being tendered to the court to prove the truth of what is being contained in the statement? Is the purpose of the evidence to prove the contents of the statement?
If all are answered with “YES” then the evidence is Hearsay and therefore likely to be excluded.
What are the exceptions to the Hearsay rule?
- Admissions and confessions.
- A confession made through an interpreter.
- Evidence given at the Coroner’s Court.
- Bail Applications.
- Dying Declarations.
- Protection Applications.
- Evidence of recent complaint. (Sex offences only)
What does Common Law define an admission as?
“Any statement by a person that is adverse to the interests of their case”
What is the exception to the Hearsay rule if there is no Witness available? (Witness passed away after making a statement to a Police Officer)
- They are under a duty to make it.
- It is shortly after the asserted fact occurred and in circumstances where it was unlikely to be a fabrication.
- It is in circumstances that make it highly probable that it was reliable.
- It is against the interests of the maker and in circumstances that make it reliable.
What is the Opinion Rule?
Witnesses are permitted to give evidence of what they heard, smelt, felt and tasted. Interpreting this is the role of the Court, a witness cannot give their OPINION.
What are the exceptions to the Opinion Rule?
There a a few though most common are…
- Lay opinion (A person may give evidence that the offender was over 6 feet tall and aged between 20-30 based on their perception)
- Specialised knowledge (Referred to as expert evidence)
What is the Character Rule?
Evidence, tending to show that an accused has bad character, cannot be given.
What are the exceptions to the Character Rule?
- If Accused’s Bad Character is one of the points of proof for the charge then we are obliged to prove that point to prove our case. (Charge of loitering by a known thief = proves them a thief, on a charge of driving while disqualified = proving them a disqualified driver)
- Where a statute makes special provision to give evidence of bad character.
- Previous convictions can be taken into account by court when sentencing after finding guilty, though they cannot be disclosed as evidence.
How can a fact in issue be proven?
- By providing evidence that directly proves that fact, without requiring the jury to draw inferences. (Direct Evidence)
- By providing evidence of a related fact or facts, from which the jury can infer the existence of the fact in issue. (Circumstantial Evidence)
