Miscellaneous provisions Flashcards
When does the Act apply (s 4)
4(1) Applies to all proceedings in Victorian Courts including (a) bail and (b) interlocutory proceedings.
(1) (d)(2) It only applies to sentencing if court so directs (can be in relation to specified matters)
(3) Court must make such a direction (a) if party applies for such a direction in relation to proof of a fact (b) and in the court’s opinion, proof of that fact is or will be significant in determining the sentence imposed.
Interaction with other laws (s 8-9)
● 8 Other Acts beat this Act
● 9 This Act beats CL and equity by express words or necessary intendment (otherwise CL and equity survive)
Part 4.1- Standard of proof (140-142)
● 140 Civil case → (1) BOP + (2) statutory reflection of Briginshaw (Court should take account of the nature of the cause of action or defence, the nature of the subject matter of the proceeding, the gravity of the matters alleged, inter alia)
● 141 Criminal → Prosecution = BRD/ Defence = BOP
● 142 (1) Admissibility of evidence (including in exercise of discretion) → BOP
○ (2)(a) Take into account the importance of the evidence in the proceeding and (b) the gravity of the matters alleged in relation to the question
Ch 5 - Miscellaneous
183 - application of Act re: doc or thing
184 - admissions and consents
● 183 if a question arises about application of a provision of this Act re a document or thing, court may (a) examine and (b) draw any reasonable inferences from it.
● 184 (1) Accused may (a) admit matters and (b) give consents but not effective unless (2)(a) they’ve received legal advice or (2)(b) court satisfied they understand.
189 - Voir dire phrase meaning ‘speak the truth’ – refers to trial in a trial)
● Preliminary questions about things like (1)(c) C&C of witnesses, whether (1)(a) evidence should be admitted or (b) used against a person is heard and determined in the absence of the jury at a voir dire.
● When deciding whether to determine something in the absence of the jury, consider:
○ (5)(a) Likely to be prejudicial to accused?
○ (5)(b)-(c) Whether it will be adduced at the substantive hearing anyway
● (7) In a voir dire on admissibility, the facts in issue are taken to include the fact to which the hearing relates
● (8) Evidence of a W at a voir dire shall not be adduced as evidence in the substantive hearing unless:
○ (a) It is inconsistent with evidence given in that substantive hearing; or
○ (b) W has died.
190 - Waiver of rules of evidence
(1) Court can, with parties’ consent, waive rules of evidence re:
(a) Div 3 (General witness rules) 4 (EIC, Rexam) or 5 (Xexam) of Pt 2.1 (Witnesses)
(b) Parts 2.2 (documents) and 2.3 (other evidence)
(c) 3.2 (hearsay), 3.3 (opinion), 3.4 (admissions), 3.5 (evidence of judgments and convictions), 3.6 (tendency and coincidence), 3.7 (credibility) 3.8 (character)
(2)(a) But consent given by accused not effective unless they’ve received legal advice or (b) court satisfied A understands the consequences of giving the consent
(3)(a) In civil, court can rule as above if the matter to which the evidence relates is not genuinely in dispute or (b) the application of those provisions would cause unnecessary expense or delay. (4) Must take into account:
○ (a) Importance of evidence in the proceeding
○ (b) Nature of CoA/defence and nature of subject matter of proceeding
○ (c) Probative value of the evidence
○ (d) Powers of court to adjourn/ make other directions in relation to evidence
191 - Agreements as to facts
191 Agreements as to facts
● (2)(a) Evidence is not required to prove the existence of an agreed fact and (2)(b) evidence may not be adduced to contradict agreed fact unless the court gives leave
192 Leave, permission or direction may be granted on terms [X-ref to any provision requiring leave]
(1) Court can give leave on such terms as thinks fit
(2) In deciding whether to give leave, permission, direction etc. Court is to take into account, inter alia:-
○ (a) Extent to which to do so would be likely to unduly add to or shorten the length of the hearing
○ (b) Extent to which it would be unfair to a party or witness
○ (c) Importance of the evidence (eg, key witness turns unfavourable – ask for broad discretion, X-examine on credibility)
○ (d) Nature of the proceedings
○ (e) Power of court to adjourn or give any other order or direction in relation to the evidence
192A Advance rulings and findings
Can get advance rulings on (a) admissibility and use of evidence and (b) operation of provisions of this Act in relation to evidence proposed to be adduced, (c) and also in relation to the giving of leave, permission or directions etc.
