Introduction+to+Evidence

The Nature of Evidence

 * Facts in issue’ are those which the P and the D must prove in order to be successful. They are determined by the substantive rules of law and by the charge and plea (criminal) or the pleadings (civil) and by the manner in which the case in conducted.
 * Evidence must be directly or indirectly relevant. (i.e. evidence must be probative of a fact in issue)

Functions of the Judge and Jury

 * Questions of general law are to be determined by a judge
 * Questions of fact are to be determined by a jury.
 * However, the judge exercises considerable influence over the jury in its determination of facts in a number of ways. it is the judge’s responsibility to withdraw an issue from the jury if there is insufficient evidence to justify finding in favour of the party with the burden of proving that issue.

Judicial Notice and Facilitation of Proof

 * The general rule is that facts in issue or relevant to an issue must be proved by admissible evidence.
 * Two exceptions to this rule are facts of which judicial notice is taken and facts which are formally admitted.

Burden and Standard of Proof

 * Standard of Proof **
 * Establish whether it is a criminal or civil trial.
 * Apply the relevant Standard of Proof
 * Criminal proceedings – ‘Beyond Reasonable Doubt’
 * Civil proceedings – ‘On the Balance of Probabilities’
 * Confessions must be established ‘beyond reasonable doubt’.
 * The judge decides ‘on the balance of probabilities’ whether a confession should be admitted.


 * Burden of Proof **
 * Establish which party has the onus of proving a particular issue.
 * Prosecution bears the evidential and legal burden.
 * Defence bears the evidential burden if it relates to their defence.
 * ** Affirmative defences ** (e.g. mental impairment) - defence bears both the evidential and legal burden. The standard of proof here is on the ‘balance of probabilities **[s.141(2)]**


 * Evidential Burden **
 * Is there enough evidence for this to go to a jury?


 * Legal Burden **
 * Has a particular issue been proved to the requisite standard?

** Standard of Proof ** (1) Except as otherwise provided, in any proceeding the court is to find that the facts necessary for deciding - have been proved if it is satisfied that they have been proved on the balance of probabilities.
 * __ Admissibility of Evidence __**
 * s.142 – **
 * (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
 * (b) any other question arising under this Act

** Voir Dire ** (1) If determination of a question whether – depends on the court finding that a particular fact exists, the question whether the fact exists is, for the purposes of this section a preliminary question.
 * Determining Admissibility after the jury is empanelled **
 * s.189 **
 * (a) evidence should be admitted (whether in the exercise of a discretion or not); or
 * (b) evidence can be used against a person; or
 * (c) a witness is competent and compellable –

(2) If there is a jury, a preliminary question whether – is to be heard and determine in the jury’s absense.
 * (a) particular evidence is evidence of an admission, or evidence to which section 138 (discretion to exclude improperly or illegally obtained evidence) applies; or
 * (b) evidence of an admission, or evidence to which section 138 applies should be admitted –

Judicial Warnings

 * These warnings are a common source of appeal, as they may impact on the outcome of the trial.

** Directions to jury ** (1) If identification evidence has been admitted, the judge is to inform the jury –
 * Identification Evidence **
 * s.116 ** –
 * (a) that there is a special need for caution before accepting identification evidence; and
 * (b) of the reasons for the need for caution, both generally and in the circumstances of the case

(2) it is not necessary that a particular form of words be used in so informing the jury.

** Unreliable Evidence ** (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence
 * s.165 ** –
 * (a) evidence in relation to which hearsay and admissions applies
 * (b) identification evidence
 * (c) evidence the reliability of which may be affected by age, ill health, injury or the like;
 * (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
 * (e) evidence given in a criminal proceeding by a witness who is a prison informer;
 * (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing by the defendant
 * (g) in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of the person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she was alive.

(2) If there is a jury a party so requests, the judge is to –
 * (a) warn the jury that the evidence may be unreliable; and
 * (b) inform the jury of matters that may cause it to be unreliable; and
 * (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it


 * Defences **
 * Identification evidence can be unreliable.
 * Even honest witnesses can be mistaken
 * Eye-sight, distance, distress
 * How long did the V look at the D
 * Time of day
 * Delay between incident and identification
 * Public influence of decision – media

Discretion to Exclude

 * In criminal cases, the trial judge has a general discretion to exclude legally admissible evidence (this may also be the case in civil cases).
 * This can occur on the following grounds:
 * It would be unfair to the accused and might put the accused at risk of being improperly convicted.
 * The evidence is deemed to be unreliable
 * The evidence is deemed to be prejudicial – can give rise to misuse by the jury or lead to bias.
 * The evidence was obtained improperly or unlawfully