WEEK 1 â INTRODUCTION AND OVERVIEW
WEEK 1 – INTRODUCTION AND OVERVIEW Chapter 1: The Nature of Evidence Law and the Uniform Evidence Acts 1.1 The nature of evidence law
Evidence is the branch that defines the type of information that can be received by a court in order to assist the decision maker (judge or juror) Must distinguish between what is ‘admissible’ and ‘inadmissible’ Must make decisions regarding the source of evidence and its reliability Evidence law is the formalization of the fact finding inquiry that individuals perform as part of their everyday lives o Regulated by the Uniform Evidence Act in Victoria
1.2 The objectives of evidence law – truth, discipline, protection 1.2.1 Evidence law is procedural, not substantive Two types of rules of evidence o Matters of process concerning how evidence can be given and who can give it o What sort of information can be received by the courts Overarching rule that only relevant evidence can be adduced Evidence law is procedural, not substantive, and largely concerned with distinguishing what evidence is admissible and what is not 1.2.2 Truth is an important objective Truth gives rise to the reliability principle, which aims to ensure that the guilty are convicted and the innocent acquitted. 1.2.3 Disciplinary principle – arguably flawed Disciplinary principle leads to the exclusion of certain forms of ‘wrongly’ obtained evidence Admissions and illegally obtained evidence are excluded in a bid to discourage law enforcement officers from adopting inappropriate practices It is arguable that this principle overlooks the officers who committed the wrong; the discretion to exclude evidence so obtained is rarely exercised 1.2.4 Protective principle Requires that parties to litigation should be treated fairly and protected from possible prejudices o Includes prohibiting the admission of the prior criminal convictions of the accused, and prohibition of commenting on an accused’s exercise of the right to silence Preconceived views and human mind is such that memories cannot be selectively erased however
1.2.5 Other objectives Loyalty is an important virtue; trust between the lawyer and the client
1.3 Looking forward to reform of evidence law 1.4 The existing law 1.4.1 Background to the Act, applies in…Vic The Australian Reform Commission in 1987 reccomended changes; the fruit of this was the Uniform Evidence Act 1995 o Adopted in Victoria in 2010 (Evidence Act 2008) Applies to both jury and non-jury trials; similarly both criminal and civil proceedings 1.4.2 The Acts are not always identical in structure and interpretation Principal objective underpinning the act is to have uniform evidence law in Australia Victoria also has the Charter of Human Rights and Responsibilities Act 2006 o States that ‘all statutory provisions must be interpreted in a way that is compatible with human rights’: s32(1) Section 30 also has a similar effect, as illustrated in Moncilovic o Methodology to ascertain if charter right is infringed: Ascertain meaning of the relevant provision by applying s32(1) Consider whether provision breaches a human right If so, apply s7(2) of the Charter to determine if limit imposed is justified Therefore, the Act should be interpreted through the lens of the human rights charter
1.5 Structure of resolving evidential issues
Logical structure: o Is the witness competent? o Is the evidence relevant? o Is the evidence excluded by the application of an exclusionary rule? o Is the evidence excluded by the operation of a discretion in s 135, 137 or 138?
Framework:
Evidence is the branch that defines the type of information that can be received by a court in order to assist the decision maker (judge or juror) Must distinguish between what is ‘admissible’ and ‘inadmissible’ Must make decisions regarding the source of evidence and its reliability Evidence law is the formalization of the fact finding inquiry that individuals perform as part of their everyday lives o Regulated by the Uniform Evidence Act in Victoria
1.2 The objectives of evidence law – truth, discipline, protection 1.2.1 Evidence law is procedural, not substantive Two types of rules of evidence o Matters of process concerning how evidence can be given and who can give it o What sort of information can be received by the courts Overarching rule that only relevant evidence can be adduced Evidence law is procedural, not substantive, and largely concerned with distinguishing what evidence is admissible and what is not 1.2.2 Truth is an important objective Truth gives rise to the reliability principle, which aims to ensure that the guilty are convicted and the innocent acquitted. 1.2.3 Disciplinary principle – arguably flawed Disciplinary principle leads to the exclusion of certain forms of ‘wrongly’ obtained evidence Admissions and illegally obtained evidence are excluded in a bid to discourage law enforcement officers from adopting inappropriate practices It is arguable that this principle overlooks the officers who committed the wrong; the discretion to exclude evidence so obtained is rarely exercised 1.2.4 Protective principle Requires that parties to litigation should be treated fairly and protected from possible prejudices o Includes prohibiting the admission of the prior criminal convictions of the accused, and prohibition of commenting on an accused’s exercise of the right to silence Preconceived views and human mind is such that memories cannot be selectively erased however
1.2.5 Other objectives Loyalty is an important virtue; trust between the lawyer and the client
1.3 Looking forward to reform of evidence law 1.4 The existing law 1.4.1 Background to the Act, applies in…Vic The Australian Reform Commission in 1987 reccomended changes; the fruit of this was the Uniform Evidence Act 1995 o Adopted in Victoria in 2010 (Evidence Act 2008) Applies to both jury and non-jury trials; similarly both criminal and civil proceedings 1.4.2 The Acts are not always identical in structure and interpretation Principal objective underpinning the act is to have uniform evidence law in Australia Victoria also has the Charter of Human Rights and Responsibilities Act 2006 o States that ‘all statutory provisions must be interpreted in a way that is compatible with human rights’: s32(1) Section 30 also has a similar effect, as illustrated in Moncilovic o Methodology to ascertain if charter right is infringed: Ascertain meaning of the relevant provision by applying s32(1) Consider whether provision breaches a human right If so, apply s7(2) of the Charter to determine if limit imposed is justified Therefore, the Act should be interpreted through the lens of the human rights charter
1.5 Structure of resolving evidential issues
Logical structure: o Is the witness competent? o Is the evidence relevant? o Is the evidence excluded by the application of an exclusionary rule? o Is the evidence excluded by the operation of a discretion in s 135, 137 or 138?
Framework:
