Where did the law of evidence come from/why have the law of evidence? Check on the power of executive government (Guantanamo Bay).

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1 INTRODUCTION: Where did the law of evidence come from/why have the law of evidence? Check on the power of executive government (Guantanamo Bay). Courts deal with serious business. The law of evidence excludes distracting, unreliable or irrelevant information. It helps exclude illegally or improperly obtained evidence. Where does the law of evidence come from? Common Law cases decided by courts; SA Evidence Act 1929; Commonwealth Evidence Act 1995 (not applicable to criminal trials in SA but it is applicable to Federal cases in SA and when a matter goes on appeal from SA to High Court, the court interprets it as if the UEA applied). What is the law of evidence about? Rules applied to information that is sought to be placed before a court, in order to prove a particular point. It is for the parties to decide what evidence they will call. Most laws regulate behaviour evidence law regulates the admission of information. Purpose of the law of evidence...the primary purpose of evidence law is to promote the accuracy of legal fact finding. It must be rational (R v Young).

2 2 RELEVANCE THE FIRST RULE OF EVIDENCE Principle: Relevance is the first and most important rule of evidence. If something is not relevant then it is not admissible. must directly or indirectly affect the probability of the occurrence (or non occurrence) or existence (or non existence) of one or more material facts in issue if accepted, it would rationally affect the assessment of the probability of the existence of a fact in issue if accepted it is admitted and believed by the fact finder something is relevant if it helps decide a fact in issue in a rational (logical) manner. Even if relevant, is subject to ALL other evidence law exclusions (ie hearsay, opinion etc) What evidence is relevant?: All that which relates to a fact in issue o The elements of the action being brought by the plaintiff which need to be proved in order to succeed at trial o The elements of the defence, if a defence is sought by the defendant other than simply denying facts Facts can be relevant if a circumstantial inference can be drawn from them If a fact is not disputed between the parties, evidence sought to prove that fact is irrelevant Occasionally courts will require more than logical relevance but this is at the courts discretion and only at common law. o The uniform evidence act test is one of logical relevance How can evidence be relevant?: In order to articulate how a particular item of evidence is relevant: o Direct evidence Establishes one or more of the facts in issue without needing to draw inferences Directly relevant to facts in issue Witness claims to have actually perceived the event

3 3 o o Application of the test: Real evidence may also be direct Circumstantial evidence Generally adduced by witness testifying about their perceptions But, not about their perception of the events in question, rather about facts that simply render more or less probable the events in question Facts relevant to facts in issue Creates a suggestion about the events, rather than definitive conclusion First task for fact finder is to determine if circumstance exists, then to decide whether or not to draw the inference Credibility evidence Evidence that is relevant only to a witness s credibility is not admissible The criterion for the operation of s102 is the relevance of the evidence, not its admissibility Evidence will be admissible in regards to credibility if it is relevant to anything else in the case regardless of whether it would be admissible for that other reason. 1. Matter of common sense always room for disagreement 2. Common law merely identifies what courts have decided was relevant previously 3. Evidence MUST increase the probability of fact that assists the jury in their decision 4. Necessary to spell out exactly how evidence is relevant to the facts and how evidence renders more probable the fact in issue a. Explaining the process of reasoning assists in applying exclusionary rules b. Identify as direct or circumstantial evidence i. If direct, state reasons why it goes to probability of fact in issue ii. If circumstantial, spell out circumstances within which evidence will go to probability of fact in issue 1. Often in conjunction with other circumstantial evidence 5. Once establishing relevance, consider all other exceptions to admissibility and exclusionary rules (HEARSAY, OPINION, CREDIBILITY, tendency and coincidence) a. If evidence goes to credibility, need to establish how and why it goes to some other purpose see s 102 Provisional relevance: Where relevance of a fact depends on the acceptance of something else first S 55: Relevant evidence AUTHORITY niform vidence ct (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence.

4 4 S 56: Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. S 57: Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. S 58: Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn. S 102: The credibility rule Credibility evidence about a witness is not admissible. Specific exceptions to the credibility rule are as follows: evidence adduced in crossexamination (sections 103 and 104); evidence in rebuttal of denials (section 106); evidence to reestablish credibility (section 108); evidence of persons with specialised knowledge (section 108C); character of accused persons (section 110). Other provisions of this Act, or of other laws, may operate as further exceptions. S 135: General discretion to exclude evidence (1) The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. S 137: Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Evidence Act 1929 (SA) S 34D: Weight to be attached to evidence (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or

5 5 existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. (2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement. Common Law Hollingham v Head Head sold guano in England The vendor on previous occasions and with other purchasers had inserted a condition in the contract that the purchaser did not have to pay for the guano if the quality was not equal to Peruvian guano Did the fact of a person having done once or many times a particular act in a particular way make it more probable he had done the same on this occasion? Held: not relevant to deciding whether or not such a condition was in the subject contract o Speculative evidence, fraught with danger to admit o Could only be suggested in cross-examination, if at all R v Stephenson Defendant sought to introduce evidence regarding blood alcohol level of inhabitants of car to suggest contributory negligence Held: Evidence inadmissible o No evidence the Fiat had been driven in a manner that was negligent o Extremely tenuous connection between condition of the driver and whether or not applicant was guilty of the charge o Logically relevant but not sufficiently so to materially advance the inquiry Phillips v R 8 counts of rape and indecent assault on 5 teenage girls Held: relevance of the evidence of lack of consent in one rape count is not proof of lack of consent in another count Could not rationally affect the probability Papakosmas v R Out of court statements are not necessarily relevant to prove the truth of their contents o Whether a statement can be considered to render more probable a fact in issue depends on the circumstances in which it was made Smith v R Police identified accused from photo Held: police in no better position than jury to assess if defendant was the person in the photo the evidence was therefore irrelevant HC: court and counsel should not have considered opinion evidence

6 COMPETENCE & COMPELABILITY OF WITNESS:- 1. Not all witnesses are permitted to testify, this is referred to as competence. 2. Not all witnesses can be forced to testify, this is referred to as compellability. 3. Generally a witness is not competent if his/her evidence would be unreliable. 4. Compellability is based on policy issues, such as not requiring an accused to testify. Uniform Evidence Act:- 1. S 12 subject to Act everyone is competent, and if competent compellable S 13 a person is not competent to give evidence if they do not understand the question, but may be able to give unsworn evidence, or evidence about facts they can testify about (e.g. children). 3. S 14 if it takes too long or costs too much to take evidence from a witness with reduced capacity, then they are not compellable. 4. S The Head of State, MP s, Judges, jurors, defendants, co-accused and spouses may not be compellable in certain circumstances. 5. S 17 Competence and compellability: defendants in criminal proceedings (2) are not competent to give evidence as a witness for the prosecution. 6. S 20 the prosecutor may not comment on the failure of an accused to testify. But the judge can provided he/she does not suggest that the failure to testify is because the accused is guilty. SA Law:- 1. S 15 person is still competent even though they: a. May be involved in the case; or b. Have a criminal record. 2. S 16 & 21 - spouses etc., are competent and compellable in civil case but may be excused in criminal cases.

7 7 3. S 18 defendant can testify in his/her own case but cannot be compelled to testify for the prosecution, nor can the prosecutor comment on a defendant s failure to testify. THE OATH:- a. Defendant is entitled to stand back and say, if you say I did it, prove it. The common law adversary trial is based on oral testimony given under oath. The main purpose of the oath is to ensure the witness understands the need to tell the truth. If a witness deliberately gives false evidence, then it is a criminal offence (perjury). Alternative if witness d/not want to take the oath, they are asked to take an affirmation that they will tell the truth. Uniform Evidence Act:- 1. S 21 witness may make an oath or affirmation. 2. S 24 doesn t matter if person taking oath has no religious beliefs. SA Law:- 1. S 6 witness shall take an oath or affirmation. Both have same effect. It doesn t matter if person taking oath has no religious beliefs. 2. S 9 & 12 children and witnesses with reduced capacity, who do not understand the oath, may give unsworn testimony provided they understand that they must tell the truth. Child Witnesses:- a. The sole determining factor on the question of competence in SA under S 9, is whether the witnesses has sufficient understanding to know that he/she must tell the truth (R v Climas). *** CHILD WITNESS *** Originally children were regarded as unreliable witnesses. There was no reasonable foundation for this belief. S 12A of SA Evidence Act provides that there is no rule of law requiring a trial judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child. EXAMINATION OF THE WITNESS:- Testimony of the witness:- Witness the vehicle by which evidence is brought before the court. Examination in chief taking the evidence from the witness Cross examination testing the witness Re-examination opportunity to restore any distortions that may have been created by the XXE process. S 28 UEA provides for the order of evidence as above.