Study Cards Flashcards
Presumption of law
Presumption of law are inferences that have been expressly drawn by law from particular facts
Presumptions of law maybe either conclusive or rebuttable
Eg. A conclusive and irrebuttable presumption would be that a child under ten years of age is unable to be convicted CA1961, S21(1)
These are in effect rules of substantive law as they refer to the substance of the law rather than the procedure contained in the law. A rebuttable presumption would be that all defendants are innocent until proven guilty
Presumption of fact
Presumptions of facts are those that the mind naturally and logically draws from the given facts. Eg one presumes that a person has guilty knowledge if they have possession of recently stolen goods.
Presumption of facts are simply logical inferences and so are always rebuttable
Veracity
A disposition to refrain from lying
Veracity
A disposition to refrain from lying
Propensity
A tendency to act in a particular way
What are the deciding factors when it comes to whether evidence is admissible?
Certain principles of evidence law including:
- relevance
- reliability
- unfairness
R v burrows
The party wishing to bring the evidence has the burden of showing the evidence is admissible
What does the section 8 test involve?
The section 8 test involved balancing the probative value of evidence against the risk it will;
- have an “unfairly prejudicial effect on the proceeding” s8(1)(a)
- “needlessly prolong the proceeding”. S8(1)(b)
What is a hearing in Chambers or chambers hearing?
A hearing where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a hearing in Chambers are sometimes referred to as preliminary facts or preliminary hearing
Evidence Act 2006
The aim of the evidence Act 2006 is to help secure the just determination of proceedings
Propensity evidence includes
- propensity as to actions
- propensity as to state of mind (eg lack of inhibition or love of violence)
Propensity evidence Excludes;
- evidence of an act or omission that is one of the elements of the offence for which the person is being tried
- evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37)
Determining admissibility of evidence .
In deciding whether evidence is admissible the courts have reference to certain principles of evidence law:
- relevance
- reliability
- unfairness
- public interest
Section 8 evidence test
1) in any proceeding the judge must exclude evidence if it’s probative value is outweighed by the rush that the evidence will
a) have an unfairly prejudicial effect on the proceeding or
b) needlessly prolong the proceeding
2) in determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on criminal proceeding, the judge must take into account the right of the defendant to offer an effective defence
Provisional admissibility
Section 14 - Evidence Act 2006
Where a question arises concerning the admissibility of any evidence the judge may admit the evidence, subject to further evidence being offered later which establishes it’s admissibility.
If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration
Provisional admissibility
Section 14 - Evidence Act 2006
Where a question arises concerning the admissibility of any evidence the judge may admit the evidence, subject to further evidence being offered later which establishes it’s admissibility.
If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration
Voir Dire
S15 evidence act 2006;
Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted ina proceeding.
Such a hearing is commonly referred to as a ‘voir dire’ particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a Voir Dire are sometimes referred to as preliminary facts
Evidence given at a Voir dire will be admissible in other stages of the proceeding only if the evidence by the witness at the Chambers Hearing are inconsistent with the witness’ subsequent testimony at another stage if the same proceeding. It is admissible in order to demonstrate the inconsistency
Mahomed v R
The rationale for the admission of propensity evidence rests largely on the concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary therefore that the propensity have some specificity about it. That specificity in order to be privately very must be able to be linked in someway with the conduct or mental state alleged to constitute the offence which the person is being tried
Mahomed v R
The rationale for the admission of propensity evidence rests largely on the concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary therefore that the propensity have some specificity about it. That specificity in order to be privately very must be able to be linked in someway with the conduct or mental state alleged to constitute the offence which the person is being tried
Probative value
The onus is on the prosecution to satisfy the court that the probation be value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant
Hearsay statement
A statement that
a) was made by a person other than a witness. AND
b) is offered in order evidence at the proceeding to prove the truth of it’s contents
What does section 15 entail?
Section 15 Evidence Act 2006 governs evidence given by a witness to prove facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such hearing is commonly referred to as a hearing in chambers where the jury is excluded from the court room for the duration of the admissibility hearing. Facts determined at a hearing in chambers are sometimes referred to as preliminary facts or preliminary hearing.
S15 applies to all witnesses (not only defendants) and to evidence given in any type of hearing held to determine the admissibility of evidence
Chamber Hearing (Section 15)
Section 15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
Particularly where the Jury is excluded from the court room for the duration of the admissibility evidence. Facts determined at a hearing in Chambers are referred to as preliminary facts or preliminary hearing
Chambers Hearing Section 15
LL
