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EVIDENCE SUMMARY NOTES
- Sources of the Law of Evidence …………………………………………………………………………………………………. 1 –
- Framework for Admission of Evidence …………………………………………………………………………………..... 4 –
- Admissions and Confessions …………………...………………………..…………………………………………………… 13 –
- Character Evidence 25 –
- Cross Examination 29 –
- Examination In Chief 39 –
- Real Evidence 49 –
- Expert/Opinion Evidence 54 –
- Hearsay Evidence 59 –
- Re-Examination & Rebuttal Evidence 80 –
FFRRAAMMEEWWOORRKK FFOORR AADDMMIISSSSIIOONN OOFF EEVVIIDDEENNCCEE
ELEMENT 1: STATE THE PARTIES
ELEMENT 2: DETERMINE THE JURISDICTION
SA or Federal? ^ Apply appropriate Evidence Act
ELEMENT 3: IS IT A CRIMINAL OR CIVIL MATTER
^ Different rules apply for both
ELEMENT 4: BURDEN OF PROOF AND STANDARD OF PROOF
B BUURRDDEENN OOFF PPRROOOOFF
The burden of proof is the responsibility of a party to introduce evidence in support of his or her case so as to persuade the tribunal of fact that the main facts in issue are established. There are 2 so-called burdens of proof (1) Legal (2) Evidentiary The " legal " burden of proof is that which requires the proponent of an issue to prove it, or lose the case. (1) This is the obligation to persuade the jury to the requisite standard or lose the case. The " Evidential " burden of proof is the obligation of a party faced with a legal burden to adduce evidence in order to discharge that legal burden. (1) Basically means proving the main facts in issue by calling or tendering evidence of sufficient relevance to be admissible and to make out a prima facie case. (2) ie having sufficient evidence to prove each element of the action. The evidential burden determines which party must introduce evidence so that the case goes to the jury on a particular issue: o determines which party may have to plead a particular issue, and have the right to begin calling evidence on that issue. The legal burden determines which party will ultimately lose on an issue if the jury are undecided as to the facts. There are four fundamental propositions in relation to the 2 principal burdens of proof:
^ May be prudent for defendant to contradict the evidence in an attempt to minimise the impact
S STTAANNDDAARRDD OOFF PPRROOOOFF
CRIMINAL CASES
The Crown must prove their case (ie discharge their legal burden) so that the jury are satisfied beyond reasonable doubt : s 141(1) CEA o This is a plain English phrase and does not require elaboration or explanation. o Does not apply during a Vior Dire On the other hand, the Accused in criminal cases need only discharge any legal burden he or she may have so that the jury is satisfied on the balance or probabilities: s 141(2) CEA CIVIL CASES The standard of proof required is the balance of probabilities : o Cth – s 140 Evidence Act (Cth) o SA – This means that the court must find that it is more likely than not that the main facts in issue exist. ^ This is the case even where fraud is alleged:^ Briginshaw v Briginshaw VOIR DIRE ^ Whether in a criminal or civil case, the standard of proof borne by the prosecution for establishing conditions precedent on the voir dire is on the balance of probabilities: R v Savage If the defendant in a criminal case has to establish some matter on a voir dire, the civil standard of proof applies: R v Collins
ELEMENT 4: NO CASE TO ANSWER
^ After hearing all of the evidence for the Crown or Plaintiff, the Judge may make a ruling as a matter of law that, even if the evidence were totally accepted, it would be manifestly insufficient to satisfy the tribunal of fact of all the main facts in issue. o Question whether the evidential burden is satisfied. ^ Only made at the point in the trial where the Plaintiff/Crown case has been closed (everything must be offered). ^ A^ no case to answer^ occurs when there is a^ submission by defendant^ that the Crown/Plaintiff has failed to discharge their burden of proof ^ The meaning of such a submission is that^ the first party has not discharged the evidential burden in respect of a particular issue to the required standard of proof:
o If the court accepts the submission, it will withdraw that issue from the tribunal of fact. o If the issue happens to be an element of the alleged offence or cause of action, the party’s entire case will be dismissed. Two assumptions: o Assume evidence is not contradicted (taken to have its highest credibility) o Assume direction by trial judge that here is no defect or flaw in the evidence ^ Question: Could persons of ordinary fairness and reason be satisfied on the evidence presented, having regard to the relevant standard, that the main facts in issue have been proved? o If NO, then the No Case submission is successful and the defendant is not required to call evidence and the case is dismissed. o If YES, then the submission has failed and the matter will be allowed to proceed. Not a fatal blow to the defendant – still possible for the jury to later throw the case out anyway. In a civil action, you would have to be very confident to do this because after the submission is made, the respondent cannot lead any evidence. If the evidence does not make out a prima facie case, the judge/magistrate will then either: o Enter judgement for the other party, in a civil case; or o Direct the tribunal of fact to return a verdict in favour of the defendant, in a criminal trial.
ELEMENT 5: IDENTIFY THE MAIN FACTS IN ISSUE
GETTING FACTS INTO EVIDENCE
Present evidence to the court according to the rules: o Oral testimony; o Documents; o Objects; GENERAL PRINCIPLE: Admissible evidence is the only evidence that a tribunal of fact can make its decision on Exception: Judicial notice and formal admissions MAIN FACTS IN ISSUE ^ MAIN^ FACTS^ -^ THE MAIN FACTS IN ISSUE ARE ALL THOSE FACTS WHICH THE PROSECUTION/PLAINTIFF IN A CRIMINAL/CIVIL CASE IS REQUIRED BY SUBSTANTIVE LAW TO PROVE IN ORDER TO SUCCEED. o Eg In a criminal case such as murder all the elements of an offence are main facts in issue. (unlawful killing causation, and Intention) o Eg In a civil case such as negligence all the elements such as duty, breach and damage must be established.
