Preliminary Matters Notes

Preliminary Evidential Matters Terminology Proof Process of convincing the tribunal of fact of a particular conclusion, by use of facts and logic (arguments) Proving a fact - achieved by combining material Implicit standard - below which the conclusion is "unproven" Facts and arguments do not have equal value in "proving" a conclusion Facts & Arguments Proof - requires combination of facts and arguments (logic) Facts - called by party in evidence Arguments - made by counsel in speeches (ie. closing) Evidence Rules of evidence seek to allow evidence of all facts which are "relevant" - which must be proved to reach the conclusion some facts may not be "proven" (shown) if the source of the evidence proving the fact is unreliable (eg. hearsay) some facts may not be "proven" (shown) as they are not necessary for the conclusion - not relevant Evidence may prove a fact - that fact may combine with other facts to prove a conclusion/fact. Testimony Oral statement of Witness on oath in open court - offered as evidence of truth of facts stated "Direct testimony/evidence" - Witness saying he perceived a fact-in-issue directly with senses - ie. what facts claims to have personal first-hand knowledge of. (contrast with circumstantial evidence) Hearsay & Original Evidence Witness gives evidence of statement (of facts) heard but Witness does not know to be true If tendered to prove that facts were stated (ie. statement was made) - "original evidence" as Witness proving something which he knows to be true If tendered to prove the facts stated (ie. that the facts are true) - "hearsay" If Witness makes a statement (out of court) and then gives testimony that made the statement "hearsay" if purpose is to prove that facts stated are true Real Evidence Usually material object produced for inspection in order for the court to draw inferences from what they observe/its existence/condition/value. Little weight in the absence of accompanying testimony identifying the object and explaining its connection Documentary Evidence Document produced for inspection by the Court or displayed electronically for inspection Document - can include graphs, maps, plans, drawings etc. Document produced to show content, existence or physical appearance If doc produced to prove facts contained in it are true - "hearsay" (as this is not proved by doc itself) Circumstantial Evidence Evidence of relevant facts from which a fact-in-issue can be inferred (or absence of the fact-inissue can be inferred) Value by proving number of relevant facts all pointing to (inferring) existence/absence of a fact-inissue MR evidence will often be circumstantial as only Defendant saying "I intended to..." will be direct evidence. Evidence that, eg, Defendant paused before hitting V - circumstantial evidence inferring intent (fact-in-issue) Facts in Issue Facts which Prosecution must prove to establish Defendant's guilt - Identity, AR, MR and facts which Defendant must prove (Prosecution must disprove) to establish his defence Formal Admissions Prosecution or Defendant can formally admit any fact under s10 CJA 1967 - no longer in issue Judicial Notice If a fact is put on "judicial notice" - Prosecution does not have to prove it. Can be put on "judicial notice" as obvious or by legislation In case Judge may take "judicial notice" of a fact - often after enquiry. * "enquiry" - investigation - where fact-in-issue can be easily resolved by research to to reliable sources. * Not a trial, cannot rebut the judge's findings - his conclusion is a binding precedent on that point. Relevant Facts Fact from which the existence/non-existence of a fact-in-issue may be inferred (directly) "Direct evidence" of a relevant fact - Witness gives testimony perceived the fact-in-issue with own senses * would include alibi witness - Witness: I was with Defendant at 2pm at.... - proves nonexistence of fact in issue: that Defendant was at the crime scene/Identity "Circumstantial evidence" of a relevant fact - number of facts which all point to (infer) the existence/non-existence of a relevant fact 

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