LAWS399 Final: Evidence
27 Jul 2018
School
Course
Professor
Evidence
Law
Summary
Reference: Bagaric, Mirko, Peter Faris, Francine Feld and Brad Johnson, Uniform
Evidence Law: Principles and Practice (CCH 2011)
Australian Reform Commission’s 1987 report underpinned the Uniform Evidence Act
→
ACT/Cth/NSW since 1995 → Tasmania since 2001 → Victoria since 2010 → ALRC
102 also brought about more changes → NT/QLD and SA are not included.
NOTE: All sections within these notes refer to the Evidence Act 2008 (Vic) unless
otherwise stated.
The act may be interpreted differently in ACT/VIC due to the Charter of Human
Rights and Responsibilities Act 2006 (Vic) s 32.
Structure for Resolving Evidential Issues
1. Is witness competent? If not, evidence inadmissible. If yes, proceed to #2
2. Is the evidence relevant? If not = inadmissible → if yes, proceed to point 3
3. Is the evidence excluded by the application of an exclusionary rule (e.g.
hearsay/opinion/similar fact/credibility) OR the application of a privilege (e.g.
client-legal/self-incrimination/matters of state/settlement
negotiations/religious confessions) → If yes = inadmissible → If no, proceed
to #4.
4. Is the evidence excluded by the operation of a discretion in s 135, 137, 138?
If answer is yes then inadmissible → If no, then evidence is finally admissible.
Introduction
Voir Dire s 189 objectives according to DPP (NSW) v Zhang [2007] NSWSC 308:
- Necessary for parties to be clear concerning parameters of the voir dire
- Extends to criminal and civil proceedings whether heard by a judge or
magistrate sitting alone or with jury.
- Grant of a voir dire by the court is a matter of discretion and NOT A RIGHT
Evidential Burden
D or P has to produce sufficient evidence before the judge or jury in the capacity of
fact-finder is required to consider it. If satisfied, a LEGAL BURDEN will then arise.
1. Evidential Burden = is there sufficient evidence to make out a case?
2. Legal Burden = Does the evidence yield a persuasive argument to prove the
case?
Standard of Proof in Civil Proceedings (Legal Burden)
S 140 ‘Civil proceedings-standard of proof’
(1) In a civil proceeding, the court must find the case
of a party proved if it is satisfied that the case has
been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take
into account in deciding whether it is so satisfied, it
is to take into account-
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the
proceeding; and
(c) the gravity of the matters alleged.
Standard of Proof in Criminal Proceedings (Legal Burden)
S 141 ‘Criminal proceedings-standard of proof’
(1) In a criminal proceeding, the court is not to find
the case of the prosecution proved unless it is satisfied
that it has been proved beyond reasonable doubt.
(2) In a criminal proceeding, the court is to find the
case of an accused proved if it is satisfied that the
case has been proved on the balance of probabilities.
Document Summary
Reference: bagaric, mirko, peter faris, francine feld and brad johnson, uniform. Aust(cid:396)alia(cid:374) efo(cid:396)(cid:373) co(cid:373)(cid:373)issio(cid:374)(cid:859)s (cid:1005)(cid:1013)(cid:1012)(cid:1011) (cid:396)epo(cid:396)t u(cid:374)de(cid:396)pi(cid:374)(cid:374)ed the uniform evidence act. Act/cth/nsw since 1995 tasmania since 2001 victoria since 2010 alrc. 102 also brought about more changes nt/qld and sa are not included. Note: all sections within these notes refer to the evidence act 2008 (vic) unless otherwise stated. The act may be interpreted differently in act/vic due to the charter of human. Rights and responsibilities act 2006 (vic) s 32. If answer is yes then inadmissible if no, then evidence is finally admissible. Voir dire s 189 objectives according to dpp (nsw) v zhang [2007] nswsc 308: Necessary for parties to be clear concerning parameters of the voir dire. Extends to criminal and civil proceedings whether heard by a judge or magistrate sitting alone or with jury. Grant of a voir dire by the court is a matter of discretion and not a right.
