Evidence: Basic Principles

Question 1

what evidence can be used at trial?

Answer 1

evidence must be admissible - it is admissible if:

• it is relevant to a fact in issue
• it is not subject to an exclusionary rule of evidence (s78 or s 76 or common law)
• it is inadmissible evidence which is subject to an inclusionary rule (bad character, hearsay)

Question 2

when will evidence be relevant to a fact in issue?

Answer 2

• logically probative of the fact
• tends to prove it
• judge decides on relevance = can rule it inadmissible if no one could reasonably put any reliance on it

Question 3

what does a jury decide regarding evidence?

Answer 3

jury decides how much weight to attach to the evidence based on its strength or credibility

(or judge in MC)

Question 4

what are the types of evidence? (6)

Answer 4

1. oral evidence by witnesses in court
2. written evidence = agreed statements or admitted facts
3. real evidence
4. direct evidence
5. circumstantial evidence = facts which are inferred from evidence
6. a view by the jury

Question 5

when can a fact be proved by means other than calling live witness evidence?

Answer 5

1. both parties agree that a witness statement is true = it will be admitted into court under the hearsay provisions and read aloud (otherwise the witness must give oral evidence at trial)
2. parties can agree written facts which are put in writing = signed by lawyers
3. judicial notice = judge can dispense proof for a common sense fact (notice of a fact on enquiry)

Question 6

what is the legal burden in criminal cases, and to what standard must the prosecution discharge the legal burden?

Answer 6

legal burden = requirement to prove an element of the case

• P = beyond reasonable double
• D = on a balance of probabilities

Question 7

what is an evidential burden?

Answer 7

the burden to raise some evidence to satisfy the judge that the matter should be argued before the jury

Question 8

in criminal cases, who has the legal burden and evidential burden?

Answer 8

the prosecution has the legal and evidential burden to prove the elements of their case beyond a reasonable doubt

Question 9

what is the burden on the defence?

Answer 9

• self defence = D has the evidential burden to adduce some evidence which could find that D acted in self-defence on a balance of probabilities + P then has the legal burden to disprove self-defence beyond a reasonable doubt
• D has the legal and evidential burden when running an active defence on a balance of probability = automatism, insanity, diminished responsibility
• otherwise = D has no burden

Question 10

what are tribunals of fact and tribunals of law?

Answer 10

• tribunal of fact = determines whether the evidence amounts to proving or disproving facts in issue (jury in CC; judge in MC)
• tribunal of law = determines legal issues such as the admissibility of evidence (judge in both CC and MC)

Question 11

what is the implication of having different tribunals of fact and law in the CC but not having this in the MC?

Answer 11

if evidence is adduced which D wishes to exclude

• CC = the jury will not know of this evidence so this will have no bearing on their decisions
• MC = the judges will know of this evidence as they determine its admissibility - and while they are required to put it out of their mind if they deem it inadmissible - this may nonetheless taint their decision