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Flashcards in Elements of Evidence Deck (37)
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1

When will evidence be admitted under S8

If it's probative value outweighs the risk of any unfairly prejudicial effect on the proceeding, or if it is strong enough to justify prolonging the proceeding.

2

What is provisional admissibility evidence under S14 EA 2006?

Where the question arises concerning the admissibility of any evidence, the judge may admit the evidence subject to further evidence being offered later which establishes its admissibility. If this other evidence is not forthcoming, the provisionally admitted evidence must then be excluded.

3

What is an example of a presumption of law that is rebuttable?

That all defendants are innocent until proven guilty.

4

What section relates to relevance of evidence?

7
Fundamental principle that relevant evidence admissible
(1)
All relevant evidence is admissible in a proceeding except evidence that is—
(a)
inadmissible under this Act or any other Act; or
(b)
excluded under this Act or any other Act.
(2)
Evidence that is not relevant is not admissible in a proceeding.
(3)
Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

5

What are the three points of determining if evidence is admissible?`

-Relevance
-Reliability
-Unfairness

6

S129 EA 2006

129
Admission of reliable published documents
(1)
A Judge may, in matters of public history, literature, science, or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.
(2)
Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).

7

What are the two ways that unfairness usually arises from?

-if it would result in some unfair prejudice in the proceeding
-Where evidence has been obtained in circumstances that would make it unfair to the defendant.

8

What are the facts in issue?

The facts which in law need to be proven to succeed with the case.

In criminal cases the facts are usually those which are alleged by the charging document and denied by a not guilty plea.

9

What is a voir dire hearing?

A preliminary facts hearing.

10

Can presumptions of fact be conclusive and rebuttable?

No, only rebuttable.

11

What section deals with the general exclusions?

8
General exclusion
(1)
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk 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 a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

12

What makes evidence admissible?

If it can be legally received by a court.

13

What is circumstantial evidence?

Is a fact from which the judge or jury can infer the existence of a fact in issue and as such, offers indirect proof of a fact in issue.

14

What happens if evidence is unfair?

It may be deemed inadmissible even though it is relevant.

15

What is a presumption of fact?

Presumptions of facts are those that the mind naturally and logically draws from the given facts.

16

What is the general rule of evidence?

Evidence is either admissible for all purposes or it is not admissible at all.

17

Must must be taken into account for an assessment under S8(1)(a)?

The right for the defendant to offer an effective defence.

18

What are exceptions to the general rule of proving facts?

Two main exceptions:
-judicial notice is taken
-facts are formally admitted

19

What can presumptions be in relation to?

Law or fact

20

Hoe does S15 EA 2006 affect evidence given by witnesses?

It governs the evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted under s14.
Evidence given in a voir dire hearing will be admissible at any later stage in the hearing if it is inconsistent with the testimony given by the witness and is admissible to show the inconsistency.

21

What are presumptions of law?

Inferences that have been expressly drawn by ;aw from particular facts and can be conclusive or rebuttable.

22

What is an example of a presumption of law that is conclusive?

That a child under 10 cannot be convicted.

23

What is relevant where facts are formally admitted?

Counsel for either party can accept that some evidence is accepted or proven and S9(2) and S9(3) EA 2006 provide that either can admit any fact and therefore dispense with proof of the fact.

24

Can evidence be used in different ways and for different purposes in a proceeding?

Yes, it does not necessarily need only be for the purpose for which it was admitted.

25

What is a presumption?

Where no evidence is offered or obtainable, disputed facts can be inferred from other facts which are themselves proven or known.

26

What is judicial notice?

Is when the court declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

27

What is an example of a presumption of fact?

Guilty knowledge of a person if they are in possession of recently stolen goods

28

What is the section 8 test

Involves balancing the probative value of evidence against the risk that it will
-have an unfairly prejudicial effect on the proceeding
-needlessly prolong the proceeding

29

What is the aim of the evidence act?

to help secure the just determination of proceedings.

30

In summary, what does section 8(1)(b) exclude?

Evidence that would unnecessarily prolong the proceeding (eg defence calling 20 character witnesses, the judge may reduce this to 1 or 2 witnesses)