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INTRODUCTION 1. THE FIVE STEPS EVIDENCE MUST
SATISFY Step 1: Is it evidence? Step 2: What is the
ultimate fact which this evidence is intended to make more likely or less
likely? Step 3: How does the
proposed evidence make that fact more likely or less likely? Probability Probability
concepts Likelihood
ratios Statistical
evidence Combining
evidence Step 4: Is there a
clear reason for excluding the evidence despite its relevance? (a) Insufficient weight (b) Disproportionate prejudice (c) Securing the best evidence (d) Procedural fairness (e) Competing social values Step Five: How is the evidence
to be dealt with in court? Onus and
standard of proof Ways of
establishing facts Course of
trial 2. HEARSAY What is hearsay? Is it hearsay? Does it matter that it
is hearsay? Is it within the 1980
Amendment exceptions? Is it within one of the
individual statutory exceptions? Is it within one of the
common law exceptions? Continued
role of the common law Admissions
and confessions Res
gestae Other
common law exceptions Residual
exception Reforming the hearsay
rule – the Evidence Code 3. PRIVILEGE What is the basis for
privilege? The
privilege against self-incrimination Legal
professional privilege Waiver Imputed
waiver Express
partial waiver Confidential
relationships Confidential
communications Section 35 Evidence
Amendment Act 4. EXPERT EVIDENCE What is it? Is the witness
competent? Is the
witness an expert? Is the
evidence within the witness’s competency? What are the
restrictions on the expert’s testimony? Common
Knowledge rule – will the evidence assist the jury? Ultimate
Issue Rule – is the expert taking over the Court’s job? A
scientific basis for the expert’s opinion? A factual
basis for the expert’s opinion? Section
23G – Expert opinion in sexual abuse cases. Should this provision remain? The
objectivity of experts: are they objective; should they be? The
problem with lack of neutrality Objective
expert evidence is desirable or at least unavoidable? How
effective are the possible solutions? 5. COMPUTERS AND EVIDENCE (a) Computers and hearsay (b) Real evidence Reliability
of computer-generated evidence (c) Devices for presenting evidence Scanned
images Computer
presentations Evidence
recording Closed
circuit television and video-taped evidence-in-chief Remote
testimony from distance locations (d) Electronic transactions Electronic
signatures Electronic
Transactions Act 2002 6. WITNESS EVIDENCE Introduction Briefs of evidence When an
exchange of briefs is appropriate What
briefs should contain Relationship
of briefs to schedules and exhibits Examination-in-chief Traditional
examination-in-chief Leading
questions Examination
by having witness read a brief Refreshing memory Prior consistent
statements Party relationship to
witness Unfavourable witnesses Hostile witnesses Cross-examination Characteristics
of cross-examination The
limits of cross-examination Dangers
of cross-examination Cross-examining
on documents Prior inconsistent
statements Purpose
of using prior inconsistent statements Oral
prior inconsistent statements. Documentary
prior inconsistent statements Silent
read XXM on PIS XXM
without production of the PIS as exhibit Read/oral/produce
XXM on PIS Collateral questions Re-examination 7. GETTING IN YOUR PAPER EVIDENCE Introduction Private documents Public documents Photocopies, printing
and photography Common practice and the
new High Court Rules Reforms by the proposed
Code of Evidence 8. PROPENSITY AND LIES Propensity Lies Overlooking the
cumulative effect of multiple probabilities 9. IDENTIFICATION EVIDENCE Identification evidence
generally Recognition Identification parades Photographic
identification Police
officers and photographic identification Displacement
effect Identification evidence
at trial Identifying
the accused during trial Statutory
protections Dock
identification The Evidence Code Secondary
identification Voice identification
evidence APPENDIX 1 THE LAW OF EVIDENCE ON ONE PAGE Step 1: Is it evidence? Step 2: What is the ultimate fact which this evidence is
intended to make more likely or less likely? Step 3: How does the evidence make that fact more likely
or less likely? Step 4: Is there a clear reason for excluding the evidence
notwithstanding its relevance? Step 5: How is the evidence to be processed in court? Course of trial |
