Evidence Law: Burden of Proof and Standard of Proof, Study notes of Law

Download Evidence Law: Burden of Proof and Standard of Proof and more Study notes Law in PDF only on Docsity! EVIDENCE SUMMARY NOTES Sources of the Law of Evidence …………………………………………………………………………………………………. 1 – 3 Framework for Admission of Evidence …………………………………………………………………………………..... 4 – 12 Admissions and Confessions …………………...………………………..…………………………………………………… 13 – 24 Character Evidence ..................................................................................................................... 25 – 28 Cross Examination ....................................................................................................................... 29 – 38 Examination In Chief ................................................................................................................... 39 – 48 Real Evidence .............................................................................................................................. 49 – 53 Expert/Opinion Evidence ............................................................................................................ 54 – 58 Hearsay Evidence ........................................................................................................................ 59 – 79 Re-Examination & Rebuttal Evidence .......................................................................................... 80 – 82 FRAMEWORK FOR ADMISSION OF EVIDENCE ELEMENT 1: STATE THE PARTIES ELEMENT 2: DETERMINE THE JURISDICTION  SA or Federal?  Apply appropriate Evidence Act ELEMENT 3: IS IT A CRIMINAL OR CIVIL MATTER  Different rules apply for both ELEMENT 4: BURDEN OF PROOF AND STANDARD OF PROOF BURDEN OF PROOF  The burden of proof is the responsibility of a party to introduce evidence in support of his or her case so as to persuade the tribunal of fact that the main facts in issue are established.  There are 2 so-called burdens of proof (1) Legal (2) Evidentiary  The "legal" burden of proof is that which requires the proponent of an issue to prove it, or lose the case. (1) This is the obligation to persuade the jury to the requisite standard or lose the case.  The "Evidential" burden of proof is the obligation of a party faced with a legal burden to adduce evidence in order to discharge that legal burden. (1) Basically means proving the main facts in issue by calling or tendering evidence of sufficient relevance to be admissible and to make out a prima facie case. (2) ie having sufficient evidence to prove each element of the action.  The evidential burden determines which party must introduce evidence so that the case goes to the jury on a particular issue: o determines which party may have to plead a particular issue, and have the right to begin calling evidence on that issue.  The legal burden determines which party will ultimately lose on an issue if the jury are undecided as to the facts.  There are four fundamental propositions in relation to the 2 principal burdens of proof: o If the court accepts the submission, it will withdraw that issue from the tribunal of fact. o If the issue happens to be an element of the alleged offence or cause of action, the party’s entire case will be dismissed.  Two assumptions: o Assume evidence is not contradicted (taken to have its highest credibility) o Assume direction by trial judge that here is no defect or flaw in the evidence  Question: Could persons of ordinary fairness and reason be satisfied on the evidence presented, having regard to the relevant standard, that the main facts in issue have been proved? o If NO, then the No Case submission is successful and the defendant is not required to call evidence and the case is dismissed. o If YES, then the submission has failed and the matter will be allowed to proceed. Not a fatal blow to the defendant – still possible for the jury to later throw the case out anyway.  In a civil action, you would have to be very confident to do this because after the submission is made, the respondent cannot lead any evidence.  If the evidence does not make out a prima facie case, the judge/magistrate will then either: o Enter judgement for the other party, in a civil case; or o Direct the tribunal of fact to return a verdict in favour of the defendant, in a criminal trial. ELEMENT 5: IDENTIFY THE MAIN FACTS IN ISSUE GETTING FACTS INTO EVIDENCE  Present evidence to the court according to the rules: o Oral testimony; o Documents; o Objects; GENERAL PRINCIPLE: Admissible evidence is the only evidence that a tribunal of fact can make its decision on Exception: Judicial notice and formal admissions MAIN FACTS IN ISSUE  MAIN FACTS - THE MAIN FACTS IN ISSUE ARE ALL THOSE FACTS WHICH THE PROSECUTION/PLAINTIFF IN A CRIMINAL/CIVIL CASE IS REQUIRED BY SUBSTANTIVE LAW TO PROVE IN ORDER TO SUCCEED. o Eg In a criminal case such as murder all the elements of an offence are main facts in issue. (unlawful killing causation, and Intention) o Eg In a civil case such as negligence all the elements such as duty, breach and damage must be established.  In addition the main facts WILL INCLUDE any further facts that the accused/ defendant must prove in order to establish a legal defence or excuse. o This could include such things as diminished responsibility (s.304A) or self defence(s.271).