L14 - Intro to Evidence Flashcards
What is evidence?
Any information or object which tends to prove or disprove the existence of a fact in issue.
List the 9 x categories of evidence
Direct, Circumstantial, Documentary, Identification, Hearsay, Credibility, Character, Opinion, Privilege
What is Identification evidence?
Photoboard, or witness picking offender from line up
What are two types of opinion evidence?
Expert opinion: i.e someone suitably qualified giving evidence of the accuracy of a speed measuring device or a layman opinion evidence of a person who has observed another being drunk
The admissibility of evidence are governed by two different types of evidentiary rules, what are they called?
Inclusionary and Exclusionary
Exclusionary rules exist to exclude evidence that is more likely to be considered _________, without ________ or otherwise __________.
Exclusionary rules, exist to exclude evidence that is more likely to be considered prejudicial, without basis or otherwise unreliable.
What is the primary instrument that governs the admissibility of evidence?
Evidence Act 2008 (Vic)
What is the main inclusionary rule of evidence?
RELEVANCE.
Fill the blanks.
Evidence is said to be _________ to a ‘_____ in issue’ if it renders that fact ______ or _____ ________.
Evidence is said to be relevant to a ‘fact in issue’ if it renders that fat more or less probable.
What is the definition of RELEVANT EVIDENCE according to s 55(1) of the Evidence Act 2008
The evidence that is relevant in a proceeding is evidence, that if it WERE accepted, could RATIONALLY AFFECT (directly or indirectly) the ASSESSMENT of the PROBABILITY of the EXISTENCE of a FACT IN ISSUE in the proceeding.
Evidence is not taken to be irrelevant only because it relates only to:
a) the credibility of a witness; or
b) the admissibility of other evidence; or
c) a failure to adduce evidence
What does directly RELEVANT mean?
When the evidence itself bears on the probable existence or non-existence of that fact. I.e CCTV showing assault occuring
What does indirectly RELEVANT mean?
When it affects the probative value of evidence that is directly relevant (nexus cannot be too remote)
I.E questions of a witness of their quality of their eyesight as may be relevant to their quality to have observed something but not directly relevant to a fact in issue.
What is direct evidence?
Evidence that a witness has perceived a fact in issue with one (or more) of their five senses, or that they themselves were in a particular physical or mental state.
Wht is cirumstanstial evidence?
Circumstantial evidence does not amount to evidence to any fact in issue, but from which facts in issue or matters relevant to a fact in issue may reasonably be inferred. In other words, it is evidence that doesn’t go to proving a fact directly but instead points to its existence.
What is the definition of the probative value of evidence?
PROBATIVE VALUE of evidence means the EXTENT to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The probative value of evidence must be weighed against what?
Must be weighed against unfair prejudice to the Accused.
Admissibility is a question of ______ whereas weight is a question of ______
Admissibility is question of law (judge)
Weight is a question of fact (jury)
S135 of the Evidence Act states that Courts may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be what?
Unfairly prejudicial to a party, be misleading or confusing or cause/result in undue waste of time.
There are two burdens in law what are they
Legal Burden and Evidential Burden
What is the legal burden on the prosecution and how must it be discharged
Legal burden is proving the guilt of the accused. To discharge the burden, the prosecution must prove the guilt of the accused beyond reasonable doubt
What burden of proof must the accused discharge the legal burden?
balance of probabilities. It is not up to the Accused to prove their innocence, however this situation may arise when claiming mental impairment, and providing a lawful excuse under section 5 of the DPSCA.
What is an evidential burden?
Means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter on which the evidence is to be led either exists or does not exist.
If defence make a no case to answer submission at the conclusion of the prosecution case, what must prosecution do?
Prosecution must satisfy the evidential burden for each element of the offence. I.e must be able to satisfy that they led evidence that pointed to each of the elements charged.
If the Accused’s asserts an affirmative defence, how must this evidential burden be discharged?
To discharge this evidential burden, the accused must adduce evidence or point to prosecution evidence which genuinely raises the issue
What are some affirmative defences?
Duress, honesty and reasonable mistake of fact, intoxication, sudden and extraordinary emergency, sane automatism, self defence.
A child under 10 is incapable of committing a crime: irrebuttable or rebuttable presumption?
Irrebuttable.
List some rebuttable presumptions
Child aged 10-14 is incapable of crime, presumption of innocence, sanity, regularity (i.e don’t have to prove police formally appointed for assault police charge, continuance, and accuracy of scientific instruments i.e speed measuring device.
