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Week 1 - Basic Principles of Evidence Law - Coggle Diagram
Week 1 - Basic Principles of Evidence Law
Evidence
Subset of information - describes information that is suitable, within the law of evidence for production before a court
Types of evidence
Real Evidence
things which the court may see, touch, or experience for itself
at this stage, it is sufficient to note four, in general terms
The
physical appearance
or demeanor of a witness in court
Example - A persons words they say are oral evidence; however, their manner, their appearance, their tone – are all real evidence, because they are actually seen or experienced by the court.
Courtroom demonstration
s, which are much more useful on television than they are in actual cases
Physical items
, such as a murder weapon, or the clothes worn by a victim, or an example of merchandise in a contract case, or a quantity of drugs seized during a raid
Excursions
, or more properly, ‘views’, during which the court travels to a location associated with the legal dispute, to see things for itself
Documentary Evidence
Parties in various types of legal dispute may wish to provide evidence of various types of written communication, such as
emails;
letters; and
text messages.
Other information-holding devices, such as
photographs;
USBs; and
memory cards
can also be regarded as documents
Examples
contract law, the contracts are obviously key forms of evidence
defamation matter, it will be necessary to produce the publication that is alleged to be defamatory
commercial law, for instance, business documents are often central forms of evidence
three
key disadvantages
compared
to oral evidence
Second
, a document, by its very nature
is hearsay
, that is, it provides a second-hand account of the contents of the document.
Example - Rather than providing an email as documentary evidence, why not just call the author of the email as a witness and get the evidence first-hand
Third
- documents will require a process of authentication so that the court may be reassured that the documents are actually what they purport to be,and are not forgeries or fraudulent.
First
they do not allow the other side the opportunity to cross-examine.
his may lead the court to downgrade the importance of documents
Oral Evidence
or testimony, is evidence which is given before a court, usually by a person who has sworn or affirmed that they will tell the truth (some witnesses, such as children, might not be asked to swear or affirm).
two distinct advantages
First, oral evidence can be tried or tested by both sides
Second, when a witness gives oral evidence the court has the opportunity to observe their demeanour, their tone of voice and their body language
EVIDENCE is information which the court has agreed to consider during a case. Evidence is therefore information which meets the rules of evidence. Not all information will necessarily be able to be used as evidence.
Facts
include all the details associated with the legal dispute
The FACTS are all things which are actually knowable, and which are required in order to make the contested legal decision
Information
is a subset of the facts that are captured, i.e. captured data
INFORMATION represents data learned about an incident, issue or dispute after the event. Information will never capture absolutely all of the facts, no matter how good the investigation.
Standards of Proof
Criminal standard of proof
beyond reasonable doubt
beyond reasonable doubt implies a very high standard of proof, but not an impossible one.
does not require the elimination of all doubt – just all reasonable doubt
courts have determined that judges should generally not explain the expression
R v Punj
(2002) 132 A Crim R 595
R v Dookhea
(2017) 347 ALR 429
distinction between reasonable doubt and any doubt
the practice of ‘contrasting the standard of proof beyond a reasonable doubt with the lower civil standard of proof on the balance of probabilities’ is to be encourage
Reasonable doubt if not just any doubt which members of a jury as a reasonable jury might entertain, but is rather what a reasonable jury considered to be a reasonable doubt
If the defence is required to satisfy the persuasive burden, it must discharge it to the lesser standard of proof, balance of probabilities
civil standard of proof is proof
balance of probabilities
That is, an assertion is considered to be proven if the evidence makes it ‘more likely than not’ that the assertion is true
much lower standard than the criminal standard
Because the civil standard of proof sets the bar so low, it has been found to be unsatisfactory in many civil cases.
High Court recognised this problem in the case
Briginshaw v Briginshaw
(1938) 60 CLR 336
The result was a new version of the civil standard of proof, sometimes referred to as the
Briginshaw Standard
refer to this standard as the civil standard, subject to the
Briginshaw test.
What is it - the more serious the consequences of a decision are for the litigants, the more satisfied the court must be with the available evidence. The higher the consequences, the more proof that is required
Onus of proof
The party who carries the onus, or burden of proof in any situation is required to present evidence in relation to every element of every legal proposition upon which they rely to make their case
onus of proof is a rule of evidence
The party with the onus of proof must bring the evidence
who bears the onus of proof?
general rule is
the side which asserts a fact or proposition must also provide evidence to support that fact or proposition
a
criminal trial
the prosecution bears the onus of proof
Woolmington v DPP
[1935] AC 462
Confirmed in Qld in
R v Mullen
(1938) 59 CLR 124
exceptions
statute specifically requires a defendant to bear the onus of proof.
Example - Defendant pleading insanity
Criminal Code
(Qld) ss 26-27
When interpreting a statute, courts will presume that Parliament did not intend to reverse or shift the burden of proof, unless this intention was made unambiguously clear.
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a
civil trial
the plaintiff bears the onus of proof
exceptions
statute specifically requires a defendant to bear the onus of proof.
example -
Anti-Discrimination Act 1991
(Qld) ss 11 and 205.
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Burdens of proof
Evidential burden
The obligation of a litigant in a proceeding to produce sufficient evidence to support its case to enable a judge to allow it to be presented to the fact finder (either the judge or the jury as the case may be) to be used to reach its ultimate decision in the case.
Legal burden
The obligation of a litigant to ultimately persuade the fact finder that certain facts, which are essential to establishing their claim or defence, are true.
The consequence of failing to do so is that the fact finder would hold that the claim or defence has not been proved.
Evidence Law in an adversarial context
four general characteristics of evidence which might become the basis of argument between adversaries
Admissibility
Even if we acknowledge that the other side’s information is relevant, is there any way we can use one of the rules of evidence to prevent the court from actually considering that information
the evidence is hearsay?
was obtained illegally?
that it was merely opinion?
Evidence Act s 55
Reliability
can we argue that the evidence is unreliable, and therefore ought not to be given any real credibility?
witness had a personal gain at stake?
witness has made inconsistent statements, and might therefore be lying?
Relevance
argue that the other side’s evidence is irrelevant and therefore ought not be considered by the court at all.
Probative value.
the quality of the evidence can be attacked because, although admitted into evidence, it has low probative value
Adversarial law – Adversarial law describes the process whereby a judge/jury hears arguments from two or more opposing parties and then arrives at a decision.
Source of evidence law
based on common law
Queensland has its own evidence legislation (the
Evidence Act 1977
(QLD)) that modifies the common law.
Note of importance
important that students also gain an appreciation of the uniform Evidence Acts, particularly because Queensland lawyers will still often practice in the federal jurisdiction – and will then be expected to apply the uniform Act