General Flashcards
What is judicial notice?
exception to the rule that in coming to a decision, a court must rely upon only those facts that are formally proven.
In which circs EA does not apply?
- Sentencing (except for contested plea)
2.Bail applications
Do we need proof of Aus legislation?
No, Judge can inform themselves in a manner that judge thinks fit. s143
Do we need proof of facts forming part of common knowledge?
no - s144
What are some examples of common knowledge?
- the nature of internet
- reliable clocks may show slightly different times
- asbestos is dangerous and illness may not show for years
- matter of common knowledge because of the media attention it has had
- narrowness of a bicycle
Example of common knowledge in locality
Harbour bridge in Sydney
Example of a document, authority of which cannot be reasonably questioned?
- meteorological to prove weather, sunset, sunrise
- Maps and street directories
- authoritative dictionaries
- Anatomical diagrams
NOTE: academic research does not fall within this category
What is the standard of proof in civil proceedings?
The balance of probabilities
What is the standard of proof in criminal proceedings?
beyond reasonable doubt
What is the standard of proof for defence raised in criminal proceedings
on the balance of probabilities
What needs to be proven in criminal cases?
Elements of the offence - BRD
What needs to be proven in civil cases?
cause of action - on the balance of probabilities
Standard of proof for admissibility of evidence?
on the balance of probabilities
what does the court consider when deciding admissibility questions?
- the importance of the evidence in question
- the gravity of the matters alleged in relation to the question
What is direct evidence?
evidence that directly proves a fact in issue without the need for the jury to draw inferences
What is circumstantial evidence?
Evidence of a related fact or facts, from which the jury can infer the existence of a fact in issue
Example: DNA evidence, fingerprints present at the scene
What is a no case test in criminal cases
whether a jury, accepting all of the P’s evidence, could, acting reasonably, be satisfied of the D’s guilt BRD.
What is a no case test in civil cases?
whether the jury could, rather than should, find in the favour of the plaintiff.
What is voire dire?
It is a trial within a trial - to take evidence in the absence of a jury. Questions regarding the admissibility of evidence are normally dealt with in a voire dire
Other examples: questions re competence and compellability of a witness
Does evidence from voire dire form part of the evidence in the trial?
no - Sinclaire case
What is a statement of agreed facts?
A fact that the parties agree that is not in dispute in the proceedings.
What form should the statement of agreed facts comply with?
Must be
1. in writing
2. signed by the parties
3. adduced into evidence
4. with leave, must be stated before the court
s150(3) EA
How does court exercise a discretion - s192
The court must consider
1. the extent to which the decision would add unduly or shorten the length of the hearing
2. the extent of unfairness to a party or witness
3. the importance of the evidence to which the leave, permission or discretion is sought
4. the nature of the proceedings
5. the power of the court to adjourn/ make another order/ give direction n relation to the evidence
Can the court allow the parties to dispose of particular rules of evidence?
s190
yes - eg the crown may permit the defence to call second hand hearsay to avoid having to call a larger number of witnesses.
What is advanced ruling?
s192A
to allow the court to give rulings on evidence before it is introduced into the proceedings.
- the admissibility or use of evidence
- the operation of a law in relation to evidence
- the giving of leave, permission or direction
