Chapter 1 - Introduction Flashcards
What is a fact in issue?
Facts in issue are all those facts which the plaintiff in civil proceeding must prove or the prosecutor in criminal proceedings must prove to succeed together with any facts that the defendant or accused must prove to establish a defence.
How are facts in issue proven?
- Direct evidence – Oral testimony, documents, and real evidence.
- Indirect evidence - Circumstantial evidence.
What is direct evidence?
Oral testimony - Witness assertion that they perceived a fact in issue with one of their five senses.
What is circumstantial evidence? (give examples)
Any fact, from the existence of which, the court or jury may infer the existence of a fact in issue (e.g. habit, motive, knowledge/skill/capacity, opportunity (location), Res Gestae, fingerprints, Jones v Dunkle ect, tracker dog evidence).
Explain the rule in Jones v Dunkle, and when and who does it apply to?
The unexplained failure of a party to (1) give evidence (2) call witnesses (3) tender documents may lead to inference that the uncalled evidence or missing material would not have assisted party’s case.
Only applies where a party is required to explain or contradict something.
Applies in civil and criminal matters (Prosecution)
How to rebut Jones v Dunkle implication? Examples (4)
Can rebut if failure is reasonable must be proved by evidence. Examples - (1) reasonable explanation for not compelling attendance of witness (illness, unavailability, loss of memory, or refusal to waive privilege) (2) witness is hostile (3) not credit worthy (4) calling witness would prejudice the witness in their own criminal matters.
What is the Domican warning?
Where ID evidence is a significant part of the case the judge must warn the jury regarding the dangers of convicting where the reliability of the ID evidence is disputed – Attention must be drawn to any weakness.
What is the best evidence rule (documents)?Does it apply in CTH jurisdiction?
The rule that the content of a document must be proved by the production of the original unless its absence can be explained.
Example: Original birth certificate document is primary evidence and a copy is secondary evidence.
CTH s51 Original document rule aka best evidence rule has been abolished
General rule of admissibility?
All evidence which is relevant to an issue before the court is admissible subject to exceptions (I.e. Hearsay, opinion, character evidence ect)
What is the threshold for evidence to be relevant? (CTH)
Threshold for relevance is low. For evidence to be relevant its only required that the evidence if it were accepted could rationally effect (directly or indirectly) the assessment of a fact in issue.
S55-56 EAC
What is the relationship between weight and admissibility?
Admissibility is a question of law for the judge, whereas weight is a question of fact for the jury.
When does the CTH Evidence Act Apply?
s4-5 Applies to all federal court proceedings and matters that apply to all Australian courts.
Why should you object to inadmissible evidence and what are the consequences of failing to do so?
Object to inadmissible evidence to protect client’s interest. The failure to do so may create issues on appeal as its suggests that the trial counsels view was there there was no prejudice at trial.
