5194LAW Lecture Notes - Lecture 1: Judiciary Act 1903, Anger, Voir
20 Jun 2018
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1. INTRODUCTION TO EVIDENCE LAW
1.1. What is covered?
1. Introduction to Evidence, relevance, burden and standard of proof.
2. Types and classifications of evidence – oral, documentary and real evidence; direct vs
circumstantial evidence.
3. Witnesses: Who has to give evidence? Competence, compellability, and vulnerable
witnesses.
4. Privilege. Not the kind that might see you attending private school and driving a German
sportscar.
5. Oral evidence and rules relating to testimony.
6. Similar fact, propensity (in the words of Britney Spears, “Oops, I did it again” evidence, and
tendency evidence.
7. Character and sexual offence complainants.
8. Hearsay. With an “a” – not Heresy. Introduction to original evidence and res gestae.
9. More hearsay. Admissions, confessions and judicial discretions.
10. Opinion evidence.
11. Improperly obtained evidence, the right to silence.
12. Corroboration and judicial warnings.
1.2. Understanding Evidence Law
- Twining – recommended reading
oSummarises theorists including Bentham, Thayer, Wigmore, & ors
- Twining considers that:
oEvidence law deals with concept of proof – i.e., whether existence or non-existence
of a fact can be established to the satisfaction of a relevant decision-maker
oEvidence is a means of proof – Best, in Twining at p193: ‘any matter of fact, the
effect, tendency or design of which is to produce in the mind a persuasion,
affirmative or disaffirmative, of the existence of some other matter of fact.’
- Twining considers that :
oA historical explanation of the origin and development of the law of evidence is that
“the peculiarities of the common law rules of evidence are attributable to two
factors: the institution of the jury and the adversary system of procedure.” (based
on Cross on Evidence)
oHistorically: “Change has taken place more through case-by-case decision and
piecemeal legislative intervention than through radical or principled reform.”
- Twining
oRationalist Tradition of Evidence
Central purpose is correctness of legal decision
Bentham: principle not absolute – subject to extrinsic concerns, e.g.,
vexation, expense & delay
Non-utilitarians would describe similar concerns under the concept
‘procedural fairness’
Truth must be pursued by rational means
oGoverning principle – freedom of proof with (not very significant, incoherent)
exceptions
- But how to coherently connect freedom of proof with need to avoid expense, vexation &
delay?
- Bentham
oRational litigants want to avoid expense, vexation & delay, (unless there is some
tactical advantage)
find more resources at oneclass.com
find more resources at oneclass.com
oRelevance connects both principles
oBentham thought that there should be no strict technical rules
- Stephen
oWas relevance a coherent rationale for all rules of evidence?
- Thayer (from Twining)
oRelevance doesn’t coherently explain all rules & exceptions
oStarting Point:
Nothing should be admitted unless logically probative; &
Everything probative should be admitted unless clear policy reason for
exclusion.
oEvidence law started with general rules, ð based on particular cases, judges
developed exclusionary rules, ð then based on later cases judges created
exceptions to the exclusionary rule
- Bentham: rules incoherent & indefensible. Should have freedom of proof limited only to
avoid expense, vexation & delay.
1.3. Conceptualising the law of evidence
- Students who look for uniform, standardised rules can be frustrated by evidence law.
- Consider as a guiding principle: How do the rules help to ensure that the court can make
the most accurate possible factual decisions while maintaining procedural fairness?
- Consider, as a matter of practicality:
oWhat are the elements of the offence/cause of action/defence?
oWhat facts are in issue?
oWhat material might be available to prove those facts?
oLook at rules of evidence to decide if you can use that information or not and how it
can be used.
1.4. Suggested approach to Evidence Law
- Before you start: What Court is hearing the case? In which jurisdiction is it? Identify
relevant evidence statutes. Then consider:
- Relevance – general rule: all relevant evidence is admissible, unless excluded
- Who has the burden of proof? What is the standard of proof?
- What are the rules for that type of evidence? For example, there are specific rules for
testimony, vulnerable witnesses, documents etc.
- Exclusionary rules, discretions or privileges – do any apply?
oNB: Res gestae overrides exclusionary rules.
oExclusionary rules have exceptions – do any apply here?
- Are there any procedural issues to think about?
1.5. Sources of Evidence Law
- Common Law
-Evidence Act 1977 (Qld) (“EAQ”)
- Other statutes, e.g., s 436(3) PPRA
- Rules of court – e.g., Criminal Practice Rules, UCPR
- Benchbooks (not law, but info about law)
-Evidence Act 1995 (Cth) (aka Uniform Evidence Act/s) (“EAC”)
1.6. Evidence approach
- Jurisdiction?
- Relevance?
- Burden and standard of proof?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Introduction to evidence, relevance, burden and standard of proof. Introduction to original evidence and res gestae: more hearsay. Admissions, confessions and judicial discretions: opinion evidence, improperly obtained evidence, the right to silence, corroboration and judicial warnings. Twining recommended reading: summarises theorists including bentham, thayer, wigmore, & ors. Twining considers that : a historical explanation of the origin and development of the law of evidence is that. Central purpose is correctness of legal decision. Bentham: principle not absolute subject to extrinsic concerns, e. g. , vexation, expense & delay. Non-utilitarians would describe similar concerns under the concept. Truth must be pursued by rational means: governing principle freedom of proof with (not very significant, incoherent) exceptions. Bentham: rational litigants want to avoid expense, vexation & delay, (unless there is some tactical advantage, relevance connects both principles, bentham thought that there should be no strict technical rules. Thayer (from twining: relevance doesn"t coherently explain all rules & exceptions, starting point:
