J.F Evidence 4 Flashcards
What is the definition of a witness?
Person who gives evidence and is able to be cross-examined in a proceeding.
Propensity evidence does not include evidence of an act or omission that is?
- One of the elements of the offence which is being tried
- The cause of action of the proceeding/mainly about veracity.
In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection 122(1) whenever the following evidence is given?
- Hearsay
- Statement by Defendant, if that is the only evidence
- Witness evidence who may have a motive to give false evidence
*Evidence of a statement by the defendant to another person while detained in prison, police station or another detention place - Evidence about conduct of the defendant more than 10 years ago.
All relevant evidence is admissible in a proceeding except evidence that is?
-inadmissible under this act or any other or:
-excluded under this act or any other
Evidence that is not relevant is not admissible in a proceeding.
What is the definition of Direct Evidence?
This is any evidence given by a witness as to a fact in issue that he or she has seen heard or otherwise experienced.
What is Miller v Minister of pensions - Balance of Probabilities?
If the defense must prove a particular element, such as insanity, on the balance of probabilities, they only need to show that it is more likely than not.
The test of relevance can be broken down into two prongs (Materiality and Probativeness)?
- Materiality asks whether the evidence is related to a key legal issue in the case.
- Probativeness asks whether the evidence makes a fact more or less likely to be true.
General admissibility of opinions in evidence?
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the
witness to communicate, or the fact finder to understand, what the witness saw, heard or otherwise perceived.
If the evidence is opinion evidence, then in order to comply with S25 the opinion must?
- Be from an expert.
- Include expert evidence.
- Provide significant help to understanding other evidence or determining facts in the case.
In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless?
a. the question relates to introductory or undisputed matters or
b. the question is put with the consent of all other parties or
c. the Judge in exercise of the Judges discretion allows the question.
If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document must be satisfied?
the leave of the judge must be obtained
the document must be shown to every other party in the proceeding
S90(5) requires the document to have been made or adopted by a witness at a time when his or her memory was fresh. Whether a document was made while the memory was fresh depends on the circumstances of the individual case.
There are a number of circumstances where a Judge may direct the jury that evidence should be scrutinized with particular care when? (six)
- Judicial directions about children’s evidence
- Judicial directions about certain ways of giving evidence
- Judicial warning that evidence may be unreliable
- Judicial warnings about lies
- Judicial warnings about identification evidence
- Delayed complaints or failure to complain in sexual cases
Unfairness can cover a variety of situations and is a matter for discretion of trial Judge, it usually arises in two ways?
Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the accused unfair.
The exclusive rules of evidence deal with?
Hearsay
Identification
Propensity
Opinion
Veracity
Improperly obtained evidence
The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if?
The defendant has offered evidence about his or her veracity or has challenged the veracity of a
prosecution witness by reference other than the facts in issue;and
b. the Judge permits the prosecution to do so.
Explain what “All people are eligible and compellable” means?
A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn they are under a compellable obligation to answer all questions put to them.
Evidence Act S.16(1) defines “Circumstances” in relation to a statement by a person who is not a witness include?
a. the nature of the statement and
b. the contents of the statement and
c. the circumstances that relate to the making of the statement and
d. any circumstances that relate to the veracity of the person and
e. any circumstances that relate to the accuracy of the observation of the person.
What is Section 59, information obtained by medical practitioners?
Disclosures made to practitioners will be covered by privilege but the person must make those disclosures personally. However it does not apply if they have been ordered by a Judge for an examination by a practitioner.
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence S77. Witnesses under the age of 12 must?
be informed by the judge of the importance of telling the truth and not telling lies
and
after being given that information, make a promise to tell the truth before giving evidence.
Previous consistent statements rule?
A previous statement is admissible if it is necessary to respond to a challenge to the witness’s veracity
or
accuracy, based on a previous inconsistent statement of the witness.
