Law of Evidence and Proof Flashcards
What forms is evidence in?
Evidence may be in oral, written or visual form.
Facts in issue are those which:
- the prosecution must prove to establish the elements of the offence, or
- the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof
What are Exclusionary rules
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).
In a proceeding, evidence may be given:
- in the ordinary way either orally in a courtroom in the presence of a judge (or judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge; or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible, and it is the personal statement of the deponent or maker;
- in an alternative way – in the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding.
- in any other way provided for by the Evidence Act 2006 or any other relevant enactment.
What is to Incriminate
To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence
What is a Hearsay statement
This is a statement that was made by a person other than a witness, and is offered in evidence in the proceeding to prove the truth of its contents.
What is Propensity
Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved
What is Veracity
This is the disposition of a person to refrain from lying, whether generally or in a proceeding
In proceedings generally where does the burden of proof lie
The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
What are some are exceptions to the burden of proof
The burden of proof lies with the prosecution except where (Woolmington principle)
− the defence of insanity is claimed
− specific statutory exceptions exist
− the offence is a public welfare regulatory offence.
What are “Public welfare offences”
regulate everyday conduct having a tendency to endanger the public or sections of the public
What is Discharging burden of proof
Any party bearing a legal burden of proof must discharge this burden to the standard required.
In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. Any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
What is Beyond reasonable doubt
R v Wanhalla
“an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence”
What is Balance of probabilities
Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged
“Evidence” is
the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.
