Evidence and Discretion
Information is one thing, having evidence produced in a format admissable for legal proceedings is another.
"The use of law as a science is to prevent mere discretionary power under the color of Equity; and it is the duty of the Judge to pronounce his decisions, not simply according to his own opinions of justice and right, but according to prescribed rules; it is the judgement of the law, and not his own, which he is bound to deliver. Were Judges to decide by their bare opinions of right and wrong -“opinions” (according to a most learned judge and elegant writer) “always unknown, often capricious, and sometimes perhaps improperly biassed! to what an arbitrary tribunal would men be subject! In what dreadful state of slavery would they live.” " full text
Evidence
Trials in the Australian Legal System are conducted in accordance with strict rules of evidence and procedure. This is one of the fundamental features of the Adversary System of trial.
Expert evidence
Makita (Australia) Pty limited v Sprowles (2001) 52 NSWLR 705 Heydon JA In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way;
Girl Provoked Pedophile
This case gives in insight into the power of judicial discretion.
Navigating Custody and Visitation Evaluations in cases with Domestic Violence A Judges Guide
Interesting discourse on information gathering procedures and corroboration of evidence, and whether to admit the report into evidence.
The Evidence Act 1995
This Act provides the 'rules' of evidence. It is necessary to understand what hearsay and corroboration, (similar to the term 'substantiation') mean.
Experiences and comments on evidence and discretion
In a recent Children's Court matter involving allegations of CSA, the protective parents' solicitor and the DoCS solicitor attempted to get the Magistrate to reach a finding in regard to whether or not the father had sexually molested his daughter. The Magistrate stated that this was equal to making a criminal finding.
OTHER SUBJECT HEADINGS:
The Players
Evidence and Discretion
Legislation and Law
Venues
Self Representation
Family Court Decisions