Miscellaneous Flashcards
(s 4) The Evidence Act applies to…
All proceedings in Vic courts except sentencing hearings, unless court directs that it apply. Court MUST direct that it apply if it’s appropriate to do so in the interests of justice OR a party applies for such a direction re proof of a fact and in the courts opinion, the proceeding involves proof of that fact and that fact will be significant in determining sentence.
(s 48) Proof of contents of documents
May be probed by tendering the doc or a copy; adducing evid of admission by other party as to contents; tendering transcript; tendering a doc that forms part of the records of a business OR if voluminous or complex, may apply for direction to tender a summary of two or more docs (to which opinion rule doesn’t apply), but court can only give such a direction if party has served the summary and given other side reasonable opportunity to examine docs in question.
Views
On app by a party, court may order that a demonstration, experiment or inspection be held (only if satisfied parties will be given a reasonable opportunity to be present and judge and jury will be present). Must take into account whether parties will be present; it will assist in resolving issues or understanding evid; danger of unfair prejudice, misleading or confusing or waste of time.
Standard of proof
Civil = BoP (court must consider nature of cause of action or defence, subject matter and gravity of matters alleged (s 140).
Criminal = BRD for prosecution case and BoP for accused’s case (s 141).
Admissibility of evidence = facts necessary for deciding admissibility of evid or question under EA are to be proved on BoP unless otherwise provided (court must take into account importance of evid and gravity of questions) (s 142).
Matters of common knowledge = proof is not required about knowledge that is not reasonably open to question and is common knowledge or is capable of verification by reference to a doc which cannot be reasonably questioned.
Voir dire (s 189)
Voir dire Is a trial within a trial to determine preliminary question of whether a particular fact exists that is necessary to determine admissibility of evidence, whether evidence can be used against a person, or whether a witness is competent or compellable. Standard of proof Is on the balance of probabilities as per section 142.
Common law principles provide that there is no right to have a Voir dire and the party seeking one must satisfy the court that is it that it is required in the circumstances.
Must be held in the absence of the jury for the purposes of determining whether particular evidence is evidence of an admission or improperly or a illegally obtained evidence or whether such evidence should be admitted. In all other cases the jury is not to be present unless the court so orders taking into account the matters in section 189(5) (prejudicial? Will the evidence be adduced in the hearing?).
If the jury wasn’t present, evidence given by a witness at voir dire can’t be adduced in the main proceeding unless it is inconsistent with other evidence given by the witness or the witness dies. 
Section 128(10) does not apply. Therefore in a voir dire an accused can claim PASI in relation to evidence that they did an act or had a state of mind that is a fact in issue.
Waiver (s 190)
All proceedings: The court may, with consent of the parties (if self rep, the court must be satisfied they understand the consequences of consent) waive application of rules about giving evidence (documents, examination in chief, XXN and re-examination) or hearsay, opinion, admissions, judgments or convictions, tendency or coincidence, credibility and character, in relation to particular evidence or generally.
Civil proceedings: court may order that any of the above provisions do not apply if matter to which evidence relates is not genuinely in dispute or the application of those provisions would cause unnecessary expense or delay. In determining whether to make such an order, the court must take into account the importance of the evidence, the nature of the subject matter, the probative value of the evidence, and the powers of the court to adjourn, make another order or to give a direction in relation to the evidence.
Agreed facts (s 190)
Agreed facts are facts that are not in dispute. Evidence is not required to prove an agreed fact that is stated in a written agreement and signed by the parties or that is stated by a party before the court with the agreement of all other parties.
Leave factors (s 192)
Without limiting the matters the court may take into account in deciding whether to give leave, permission or direction, it is to take into account:
(a) The impact on the length of the hearing;
(b) The extent to which it would be unfair to a party or a witness;
(c) The importance of the evidence;
(d) The nature of the preceding;
(e) The power (if any) to adjourn, to make another order, or to give a direction in relation to the evidence.
Advance ruling (s 192A)
Court may give a ruling before evidence is adduced in proceedings on a question about the admissibility or use of evidence, the operation of a provision of the evidence act or another act in relation to evidence, or the giving of leave, permission, or direction under section 192.
