Chapter 1: Nature of evidence law & the UEA

Esther McIntyre
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Esther McIntyre
Created by Esther McIntyre over 4 years ago
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Page 1

Nature and Objectives of Evidence Law branch of law defining the type of information that can be received by a court in order to assist the decision maker to decide a matter in the caseTwo types of evidence rules: rules regulating the process (who can give evidence, how can the evidence be given), rules regulating the sort of information that can be received. Objectives/ principles: truth, disciplinary, protective truth- reliability, accuracy. broadest but not the only objective disciplinary principle- can lead to the exclusion of wrongly obtained evidence, aims to discourage law enforcers from adopting inappropriate practises. Arguably ineffective because it does not actually impact the person acting improperly. Are there more effective ways to communicate disapprobation?protective principle- requires parties to a litigation be treated fairly and protected from possible prejudicesempirical evidence suggests that decision-makers are not actually influence by prior behaviour (magistrates more effected than jurors). instructing a jury to disregard information is ineffecitve

Need for Reformcurrent state of law is unsatisfactory: -complex, vague and contradictory rules -no empirical evidence to support bulk of rules-scientific advances have not infiltrated law

Existing LawUniform Evidence Act adopted by most states, (VIC in 2010) in an attempt to codify and simplify the common law rules. Slight differences between the States due to HRActs- UEA in VIC is interpreted through the lens of the Human Rights Charter.

evidential threshold issues check-list Is the witness competent? Is the evidence relevant? Is the evidence excluded by application of an exclusionary rule? (hearsay, opinion, similar fact, credibility), or protected by privilege? (client-legal, self-incrimination, matters of state, settlement negotiations, religious confession) Is the evidence excluded by operation of discretion? ss 135, 137, 138