General overview of evidence Flashcards
What are the three main types of evidence? (give examples)
- Testimony (oral or by affidavit)
- Documents (photographs, video, certificates etc)
- Real evidence (physical objects, demonstrations by witness, demeanour of witness, the appearance of persons age as evidence)
What are the three main substitutes, or dispensation from, the normal presentation of evidence?
- Judicial notice
- presumptions of law or fact
- Formal admissons
What are the rules for documentary evidence? (hint 3)
- Best evidence rule - Where a written document is tendered the original must be produced as it is the best evidence of it’s content, however a copy can be produced unless original has been lost or destroyed (s 51 CEA abolished; see also s 106 QEA for copies of business documents)
- Where a document is offered as proof of facts asserted there tender must be justified by reference to a recognised exception to hearsay (i.e. s 84 QEA books of account, s 92-93 qea, s 93A QEA
- Parole evidence rule - Where a transaction is fully documented…the rule prohibits use of extrinsic material to the document in question for the purpose of altering or contradicting its terms…however can use to explain or clarify words in the agreement. The rationale of the Rule being because the final contract represents a complete and final agreement between the parties the introduction of extraneous evidence (oral conversations etc) could contradict or modify the terms of the agreement…the rule promotes certainty and minimising potential for fraud ect.
What is the best evidence rule, why does it exist, and does it apply to real evidence?
The original of a written document should be tendered as it is the best evidence of it’s content, however a copy can be produced where the original is destroyed or lost (NB s 51CEA abolished rule)
The rule exist to promote fairness and ensure reliability of documents.
Real evidence is not affect by the best evidence rule. A photograph or oral description is admissible instead of the object it’s self.
Dispensation of evidence: Formal admission
What is a formal admission, and what effect does that have on the proceeding?
A formal admission occurs when a party concedes a fact in issue in pleadings or in open court (i.e. plea of guilty formal admission to all elements of the offence)
The party who bares the evidential burden is not required, and can not, adduce evidence of that fact. This is because the fact is not in issue, evidence of it is irrelevant, and therefore inadmissible.
Leave is required to withdraw formal admissions.
A court is not bound to accept formal admission where it considers that it is untruthful, or presents a fiction that the parties may find convenient to maintain (where admissions are contrary to evidence court can act on evidence)
Dispensation of evidence: Judicial Notice
What is it, when does it not apply, provide examples, and what is the rationale.
Judicial notice maybe taken of a fact so notoriously known it would be pointless to insist on formal proof (Holland v Jones; s 144 CEA).
Example: Christmas day is 25 December, cannabis is known as grass, or well know geographical locations.
The court decides whether the dispensation of proof should be granted if there is a reasonable dispute about the fact in question.
The court has no discretion and must take judicial notice in some cases s 41-43A QEA
Dispensation of evidence: Rebuttal presumptions of law
A rebuttal presumption of law is a partial dispensation from adducing circumstantial evidence.
Once certain facts are established the court must draw an inference unless proof to the contrary is presented (i.e. presumption of innocence until proven guilty, presumption of doli incapax, presumption of death if missing for 7 years, a confession improperly obtained if induced, or letter was posted at the time of post mark).
Who is competent to give evidence?
Every person, including a child, is competent to give evidence in a proceeding or on oath (s 9 QEA; s 12 CEA)
Where a party challenges a witnesses competency to give evidence what must the court be satisfied of?
Whether the witness is able to give an intelligible account of events which the witness observed or experience (s 9A QEA; see also s 13 CEA)
Can an expert give evidence about a witnesses ability to give evidence?
s 9C QEA - Yes if court is consider s 9A matter an expert evidence is admissible about the persons or child’s level of intelligence including…their ability to give reliable evidence
see also s 13(8) CEA
Who is compellable in a civil proceeding?
s 7 QEA - each party to a proceeding is competent and compellable to give evidence in the proceeding.
Does the spousal privilege rule exist?
Yes in QLD - s 7(2); s8(2)-(3) abolished rule - husband or wife is compellable in both civil and criminal proceedings.
Qualified in CEA - s 18(2) in a criminal proceeding a spouse, partner, parent, child may object to giving evidence…however the court must be satisfied ss(6) likelihood of harm and nature and extent of harm outweighs the desirability of having to give evidence.
Is a person charged competent and compellable to give evidence?
s 8 QEA; s 17 CEA - Each person charged is competent to give evidence but is not compellable to do so.
Is a co-accused competent and compellable to give evidence in a proceeding for a person charged?
S 8(1) QEA – An alleged co-offender who has been acquitted, convicted, or is being tried separately is not a ‘person charged’ for the purpose of section s 8, and is competent and compellable to give evidence at the hearing of the suspected co-offender.
However, an alleged co offender may claim privilege with respect to any offence not yet established, and a previous acquittal cannot be questioned.
What is s 10 QEA?
s 10 QEA - A witness who is compelled to give evidence can refuse to answer which would self incriminate
(2) a defendant who elects to give evidence liability to answer the question is governed by s 15.
What are the rules for examination in chief? (hint 4)
(1) must not ask leading questions unless court gives leave, introductory matter to the witnesses evidence, no objection, question about a matter not in dispute (see s 37 CEA)
(2) Party must not impugn the credit of own witness (see also s 17 QEA; s 38 CEA)
(3) A party must speak from memory and not use a document to revive own memory, unless court gives leave to allow witness to review a contemporaneously made note once memory is exhausted, however can not without leave of the court read document into the record (see s 32 CEA; s33 CEA evidence of police officers)
(4) Questions evidence must relate to issue in trial and not merely accrediting of the witness or another witness (i.e. good character evidence, prior consistent statements, accrediting own witness (good memory, eye sight)) - no self sucking
What are the rules for cross examination? (Hint 7)
(1) Leading questions are permitted (s 42 CEA)
(2) Dose not need to be limited to topics raised in EIC
(3) hearsay rule applies in cross examination
(4) Brown v Dunn
(5) Finality rule: An answer to a collateral question (only going to credit) may not be rebutted…unless it is about (1) criminal history (2) bias (3) prior inconsistent statements (4) prior false complaints. The rule exists as a case management device to limit duration of hearings etc… (see also 20 QEA)
(6) must not ask improper questions (s 21 QEA; s 41 CEA)
(7) counsel must not communicate with their witness under cross examination
What is the rule in Brown v Dunn? Why does it exist, what happens if it is not complied with, and can a party waive the right to…(5 points)
- Where a party intends to contradict the evidence of a witness, by submission or evidence, the party is first required to put the contradictory evidence to the witness during cross examination to allow the witness a fair opportunity to comment on the evidence.
- The rule also allows the court to assess evidence and it places the other party on notice to call any supporting evidence.
- (1) Where there is noncompliance with the rule the court can refuse the party tendering contradictor evidence or submissions, however the court may recall the witness to allow the party to comply (see s 46 CEA leave to recall witness), and (2) Creditable evidence which is not challenged is taken to be accepted.
- In exceptional circumstances, noncompliance with the rule may allow adverse inference to be drawn against the defendant’s credit (i.e. ‘recent invention’).
- Where a parties failure to object to noncompliance does amount to a waiver of the rule. The judicial officer still must ensure a fair trial which includes ensuring a witness is treated fairly especially where judge is asked to make a finding impeaching witnesses’ credit (bale v mills).
Can a party waive the right to object to the other parties non compliance with Brown v Dunn?
Bale v Mills - There can be no waiver of compliance with brown v dunn because of the overriding duty to ensure a fair trial including ensuring a witness is treated fairly when the judge is asked to make findings impeaching the witnesses creditability.
What is permitted in re-examination?, and what is it’s purpose? (hint 4)
(1) Must arise out of evidence given in cross examination;
(2) Collateral questions are permitted (i.e. witness says she detests the dft…permissible to ask why) (s 108 CEA)
(3) Where a cross examiner raises recent invention (change of story between statement and trial) re-examiner may lead evidence of prior consistent statement (s 101; S 102 QEA)
(4) The purpose is to explain, repair, or improve witnesses evidence once cross examination is completed.
Who bares the onus of proof? (evidential burden)
Generally the party who initiated the proceedings, Plaintiff, prosecution, or applicant, bares the onus to adduced evidence of every essential element of the cause of action (prima facie case).
Failure to do so may result in a ‘no case’ submission for dismissal of the proceeding.
Where the prosecution case is circumstantial what is the test to determine whether the onus of proof has been satisfied?
Test is whether there is evidence which a jury could convict on, taking the crown case at it’s highest, and all inferences relied upon by the prosecution are reasonably open.
When does the onus of proof reverse? Provide examples criminal and civil
Criminal: A defendant who pleads insanity, or diminished responsibility bares the onus of proof. Prosecution must negate BRD.
Civil: Where the respondent raises fraud, contributory negligence etc respondent must adduce evidence
Criminal matter: Where the defendant bares the onus of proof…can the prosecution wait to see whether the defendant goes into evidence before calling any evidence to rebut what is raised? (i.e. case splitting)
No - The Crown must call all it’s evidence and cannot split its case by calling evidence in reply where it could have been anticipated the evidence was to be called by defence (i.e. provocation, duress, ect) unless there is exceptional circumstances (R v Shaw)
What is the standard of proof in a criminal matter?
The prosecution must establish all elements on which it bares the onus of proof beyond reasonable doubt (Woolmington v DPP; s 144 CEA).
What is the standard of proof in a civil matter?
The civil standard of proof is reasonable satisfaction (balance of probabilities) of the facts in issue, however the strength of the evidence required varies according to (1) gravity of the allegation, (2) its improbability, and (3) the consequences of an affirmative finding.
CEA 140
What is the Briningshaw v Bringinshaw standard?
The civil standard of proof is the balance of probabilities however the strength of evidence required varies according to (1) the seriousness of the allegation (2) its inherent improbability and (3) the consequences of an affirmative finding (briginshaw; reasonable satisfaction).
What is the standard of proof in a voir dire?
Balance of probabilities for both civil and criminal matters
What is the standard of proof in a contempt of court proceeding?W
Beyond reasonable doubt, whether the contempt be classed as criminal or civil (Bruder Expedition PTY LTD v Leight)
What is standard of proof at a contested facts sentence?
s 132C balance of probabilities, however can take into account consequences of the finding of the allegation to be true
What is the standard of proof in civil penalties?
Generally civil standard of proof with briginshaw considerations, however some legislation requries criminal standard of proof
What is the standard of proof in disciplinary tribunals?
The standard of proof is reasonable satisfaction when regard is had to (1) the gravity of the allegation (2) its improbabiltiy and (3) the consequences of an affirmative finding.
What is the standard of proof when onus is on defence?
Civil standard applies balance of probabilities
What are the two types of circumstantial cases?
(1) links in a chain: Where one item evidence is not accepted the chain fails
(2) strands in a rope: Some circumstantial items may be reject, however those remaining can still support a conviction.
What is circumstantial evidence?
Evidence of a fact which infers the existence of a fact in issue.
What is direct evidence?
Evidence of a fact which directly proves a fact in issue.
What are two considerations the court can have regard to when assessing the weight of evidence?
- Where it is corroborated by other evidence
- Jones v Dunkle considerations
What is corroborative evidence? and who decides whether it is corroborative?
Corroboration is independent evidence which supports a material part of a witnesses testimony…it must be admissible its own right but need not support the entire story.
the tier of fact will decided whether it is accepted or rejected
What are examples of corroborative evidence?
May consist of real evidence such as injuries consistent with an assault, or distressed condition evidence…
separate high similar experiences of witnesses with the same person are mutually corroborative (subject to collusion)
Other: Admission by words, flight, attempts to bribe witness etc
What is the rule in Jones v Dunkle?
What is the rationale?
What is consequence of non-compliance?
Where a party is required to explain or contradict something the unexplained failure to do so by calling, giving, or tendering evidence allows court to draw the inference the uncalled evidence would not have assisted the parties case. In other words, the rule is not a source of evidence but a practical consideration when conflicting evidence is being assessed.
The inference is allowed to be drawn because if the evidence would have assisted it would have called it.
The weight of the opponents case may be enhanced by an unexplained failure.
When may a Jones v Dunkle submission fail?
- Absent witness would be hostile towards the party in question
- witness was equally accessible to each party;
- The party whom the argument is raised simply does not know who the witness will say;
- Unavailability or death of witness
Does Jones v Dunkle apply in criminal proceedings?
Yes - It is not confined to civil proceedings however its application in criminal proceedings is limited to the prosecution’s failure to call a material witness does not apply to the accused failure to give or call evidence unless exceptional circumstances (Dyers v The Queen; Azzopardi)
Before the rule of Jones v Dunkle can properly invoked there must be evidence which calls for an answer…yes or no?
yes
If five people attend a meeting and only some are called…a jones v dunkle inference will not arise unless those who were not called would add something of significance…true or false
True - Lennon v South Australia
What are the rules for questioning a person charged with an offence? (QEA)
s 15 (1) where a person charge gives evidence they can not refuse to answer a question on the basis it would tend to incriminate
(2) a defendant shall not be asked any question tending to should that has committed, or been convicted of an offence other than that which they are charged, or is of bad character unless
(a) i.e. similar fact evidence
…
(c) counsel asks a question with a view establishing good character evidence or the conduct of the defence is such that it involves imputations on the prosecutor or witness of prosecution
(3) must seek leave of the court before asking any of the above
Can counsel cross examine witness regarding previous convictions? (QEA)
s 16 QEA - Yes can question witness about whether they have been convicted of an offence…and if they deny it you can prove such conviction…(s 53 QEA)
s 15A QEA - must seek leave to question about convictions subject criminal law rehabilitation act
How far may party discredit’s own witness? (QEA)
s 17 QEA - A party shall not impeach the credit of it’s own witness by general evidence of bad character, however may with leave of the court prove the witness has made a statement inconsistent with other testimony (adverse witness application - a disappointing witness is not enough…must demonstrate an unwillingness to tell the truth)
During cross examination how is proof of a previous inconsistent statement given? (QEA)
s 18 QEA - During cross examination of a witness regarding a previous statement inconsistent with current testimony does not admit the previous statement proof may be given the statement was made, however before proof can be give the circumstances of making the statement must be put to the witness
Can a witness be cross examined on a previous written statement with being shown it? (QEA)
s 19 QEA - A witness can be cross examined regarding a previous written statement without being shown it, however if it is intended to contradict the witness attention of the witness must be first taken to the contradictory parts before such contradictory proof is given.
When can a court disallow a question as to credit? (QEA)
s 20 QEA - The court may disallow a question as to credit if the court considers the answer would not materially impair the courts confidence in the reliability of the witnesses evidence.
What section of the QEA and CEA deals with whether a question is an improper question?
s 21QEA; s 41CEA
Where the defendant does not give evidence can an adverse inference be drawn against them?
Yes - Where the prosecution case against the defendant could be explained or contradicted by facts only known by the defendant, the defendant’s failure to offer those facts strengthens the inference of guilt urged by the prosecution. however the failure CANNOT be used resolves doubts about the witnesses or drawn conclusions from any evidence (azzopadi)…
The rationale is that if the evidence would have assisted the accused would have given it (similar to jones v dunkle; R v Dyers).
