Idiots Guide to answering evidence Questions
Nickita Knight
The first requirement is to IDENTIFY THE EVIDENCE. In a situation that is presented to you, you are required to pick out all the elements in it. Every-single one.
The second requirement is to APPLY THE LAW. The application of the law occurs in a number of ways.
The first way is to DETERMIN IF THE EVIDENCE (THE IDENTIFIED EVIDENCE ) is relevant. You are required to explain what relevance is. Stephen’s definition of evidence – in relation to the word “relevant” adopted by McHugh J in Palmer v R (1998) and Goldsmith v Sandilands (2002) Evidence is relevant if it is logically probative or disapprobative of some matter which requires proof. It is sufficient to say, event at the risk of etymology tautology, that relevant evidence is evidence which makes the matter which requires proof more of less probative. In other words this simply means that: Relevance is the relationship between two facts that renders one probable from the existence of the other, either taken by itself or in connection with other facts. (Taken from Murphy on Evidence) The threshold test is whether there is a logical connection between the evidence and a fact in issue: Papakosmas v The Queen (1999) 196 CLR 297 at [81] This is an important step, you must consider the relevance of all the evidence in the question. Not necessary together, but in turn. If something is irrelevant, then it won’t be admissible – as it is irrelevant (Hollington v Head) Once, relevance has been discussed, you must then consider (talk about) ADMISIBILITY OF THE EVIDENCE. Once again you must clearly explain what is meant by the term admissibility. Admissibility depends on the concept of evidence being of a sufficiently high probative value, and it is also depended on not infringe one of the exclusionary rules. Relevance is the relationship between two facts that renders one probable from the existence of the other, either taken by itself or in connection with other facts. You must mention WEIGHT, if you think that there is a possibility, even a slight one of the evidence having other possible explanation.
Weight can affect the admissibility of the evidence; as it can cast doubt about the evidence at hand. (R v Quinn) There for, when talking about the first piece of evidence, you must mention -
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What is relevance o Is the piece of evidence that you just identify relevant What is admissibility o Is the piece of evidence admissible or not o If it not admissible why: (Refer to the next few pages) Would also be a good idea to mention the issue of weight if you think there is another explanation for the evidence at hand.
1. Discuss Relevance - is it relevant and why 2. Discuss Admissibility - is it admissible - explain why or why not = mention weight if needed
REMEMBER TO MAKE SURE THAT IF YOU TALK ABOUT EXPERTS, EYE WITNESS, HEARSAY , PRIVILEGE, REFRESHING MEMORY, NEED TO: EXPLAIN WHAT THEY ARE: PRIVILEGE WHAT IS IT: a witness can be competent and compellable, but can ask for privilege in questions asked of them . This in effect allow the relevent evidence to be withheld. THERE ARE 3 DIFFERENT TYPES OF PRIVILAGE: -
AGAINST SELF INCREMINAITON LEGAL PROFESIONAL PRIVILEGE o DOMINANT PURPOSE TEST IS USED WITH OUT PREJUDICE PRIVILEGE
(SEE PAGE 39 OF THE NOTES FOR PRIVILEGE)
REFRESHING MEMORY Since, the adversarial system is all about oral testimonies in court, a winess who made a statement can forget, and thus the law allows for that witness to have their memory refreshed. There are two diferent types of refreshments – if the witness is unsure of what they said; a police report is read to them and they remember, this is know as the past recollection revived The other type is the past recollection recorded – where the witness can not remember as such; but is able to read the documents in court (gillespie v steer) (SEE PAGE 45 OF THE NOTES)
PRIVIOUS INCONCISTENT STATEMENTS Cross examiner is allowed to put inconsistent statement tot he witness. This can be deefined as a previous representation that is given by the witness. (SEE PAGE 51)
CHARACTER AND CREDIBILITY In A Nut Shell, You Can Show That The Oponents Witness Has Credibility Issues (SEE PAGE 57)
SIMILAR FACT EVIDENCE This is were the prosecution wants to use the accuser’s character or disposition of another event to prove that the accused had acted in the same way as what is currently in dispute (SEE PAGE 60 OF THE NOTES)
HEARSAY WHAT IS IT: hearsay is an out of court assertion bought in to test the truth of the matter asserted. The assertion can be oral, written or by conduct. This means that when a witness pseaks hearsay they are generally only repeating what they heard someone else say, rather then reporting to the court of their own observation or perception.
(PAGE 69)
However, there are exceptions to the Hearsay Rule at common law. They are found on page 75 of the notes. There are also Statutory Exceptions to the Hearsay Rule which are found on page 82. CORROBORATIONS THIS SIMPLY MEANS, THAT IF A STATEMENT IS MADE BY SOMEONE ELSE, THAT SUPPORTS THE STOREY OF ONE OF THE PARTIES, OR OF ANOTHER WITNESS THEN IT WILL BE CONSIDERED TO BE A CORROBORATION. (SEE PAGE 94)
OPINION EVIDENCE Opinion evidence, will not be admitted in court on the grounds that the layperson are not experts in the field. An opinion involves an inference drawn from the observed fact. Only expert witness are able to give opinions. (SEE PAGE 96)
EXPERTS For an expert to be an expert, they must prove to the court something that a reasonable person would not know. -
Expertise rule – the opinions of the expert must form or be related to the subject matter They must have formal study They must be experts in the field
(SEE NOTES ON PAGE 97)