General

Question 1

What is judicial notice?

Answer 1

exception to the rule that in coming to a decision, a court must rely upon only those facts that are formally proven.

Question 1

In which circs EA does not apply?

Answer 1

1. Sentencing (except for contested plea)
   2.Bail applications

Question 2

Do we need proof of Aus legislation?

Answer 2

No, Judge can inform themselves in a manner that judge thinks fit. s143

Question 3

Do we need proof of facts forming part of common knowledge?

Answer 3

no - s144

Question 4

What are some examples of common knowledge?

Answer 4

1. the nature of internet
2. reliable clocks may show slightly different times
3. asbestos is dangerous and illness may not show for years
4. matter of common knowledge because of the media attention it has had
5. narrowness of a bicycle

Question 5

Example of common knowledge in locality

Answer 5

Harbour bridge in Sydney

Question 6

Example of a document, authority of which cannot be reasonably questioned?

Answer 6

1. meteorological to prove weather, sunset, sunrise
2. Maps and street directories
3. authoritative dictionaries
4. Anatomical diagrams

NOTE: academic research does not fall within this category

Question 7

What is the standard of proof in civil proceedings?

Answer 7

The balance of probabilities

Question 8

What is the standard of proof in criminal proceedings?

Answer 8

beyond reasonable doubt

Question 9

What is the standard of proof for defence raised in criminal proceedings

Answer 9

on the balance of probabilities

Question 10

What needs to be proven in criminal cases?

Answer 10

Elements of the offence - BRD

Question 11

What needs to be proven in civil cases?

Answer 11

cause of action - on the balance of probabilities

Question 12

Standard of proof for admissibility of evidence?

Answer 12

on the balance of probabilities

Question 13

what does the court consider when deciding admissibility questions?

Answer 13

1. the importance of the evidence in question
2. the gravity of the matters alleged in relation to the question

Question 14

What is direct evidence?

Answer 14

evidence that directly proves a fact in issue without the need for the jury to draw inferences

Question 15

What is circumstantial evidence?

Answer 15

Evidence of a related fact or facts, from which the jury can infer the existence of a fact in issue
Example: DNA evidence, fingerprints present at the scene

Question 16

What is a no case test in criminal cases

Answer 16

whether a jury, accepting all of the P’s evidence, could, acting reasonably, be satisfied of the D’s guilt BRD.

Question 17

What is a no case test in civil cases?

Answer 17

whether the jury could, rather than should, find in the favour of the plaintiff.

Question 18

What is voire dire?

Answer 18

It is a trial within a trial - to take evidence in the absence of a jury. Questions regarding the admissibility of evidence are normally dealt with in a voire dire
Other examples: questions re competence and compellability of a witness

Question 19

Does evidence from voire dire form part of the evidence in the trial?

Answer 19

no - Sinclaire case

Question 20

What is a statement of agreed facts?

Answer 20

A fact that the parties agree that is not in dispute in the proceedings.

Question 21

What form should the statement of agreed facts comply with?

Answer 21

Must be
1. in writing
2. signed by the parties
3. adduced into evidence
4. with leave, must be stated before the court
s150(3) EA

Question 22

How does court exercise a discretion - s192

Answer 22

The court must consider
1. the extent to which the decision would add unduly or shorten the length of the hearing
2. the extent of unfairness to a party or witness
3. the importance of the evidence to which the leave, permission or discretion is sought
4. the nature of the proceedings
5. the power of the court to adjourn/ make another order/ give direction n relation to the evidence

Question 23

Can the court allow the parties to dispose of particular rules of evidence?

Answer 23

s190
yes - eg the crown may permit the defence to call second hand hearsay to avoid having to call a larger number of witnesses.

Question 24

What is advanced ruling?

Answer 24

s192A
to allow the court to give rulings on evidence before it is introduced into the proceedings.
- the admissibility or use of evidence
- the operation of a law in relation to evidence
- the giving of leave, permission or direction