Decision Making in the Context of the Administrative Sanctions Procedure. A programme for Inquiry Members of the Financial Service Regulatory Authority 19 and 26 May, 2007 G Brian Hutchinson, BCL LLM DAL FCIArb BL Vice Dean, School of Law. Hearings. I. Contentious issues prior to hearing
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A programme for Inquiry Members of the Financial Service Regulatory Authority
19 and 26 May, 2007
G Brian Hutchinson, BCL LLM DAL FCIArb BL
Vice Dean, School of Law
I. Contentious issues prior to hearing
Suggestions to control hearing:
The standard of proof-
“if the evidence is such that the tribunal can say `we think it more probable than not`, the burden is discharged, but if the probabilities are equal it is not”
Denning J. Miller v. Minister for Pensions
3. The oath and giving evidence.
“It is a fundamental principle of the common law that for the purposes of trials either civil or criminal cases viva voce evidence must be given on oath or affirmation”
Finlay CJ, Mapp v. Gilhooley
Exceptions to Leading Questions:
Civil cases do not adhere rigorously to the application of the rule.
Evidence is not inadmissible but may affect weight to be attached
Cannot cross examine or attack a witness called by the party, unless witness is classified as hostile.
Evidence on oath, Cross Examination
Evidence on oath, Re-Examination
Evidence on oath, refreshing memory.
Evidence on oath, Hearsay.
“A statement, orally, in writing or by communicative conduct, other than one made by a person testifying in which it is sought to be admitted, is inadmissible if tendered as evidence of the trust of any fact asserted.”
Non hearsay examples:
Types of hearsay
Exceptions to hearsay.
1. Part of res gestae (statement so closely associated with an event that it forms part event rather than a reported statement:
Given where the matter falls outside the ordinary knowledge or expertise of the tribunal of fact.
Expert cannot give evidence in relation to the ultimate issue for determination unless opinion of expert is necessary for determining the dispute.
Witness must be an expert.
Facts upon which expert opinion is based must be established by admissible evidence.
Other witnesses or the expert can establish these facts.
Expert witness cannot base opinion on facts provided to him by a third party.
Weight to be attached to the expert
Evidence after the close of a hearing.
Generally all evidence should be given before the close of the party’s case, unless:
Authorities suggest that any evidence allowed after the close of the party’s case is given whilst the court is still sitting and has not finished hearing the matter.
Document - “photographs, maps, X-rays, fax, audio tape, film, electronic and microfiche”.
Must prove content of document by producing original but copy (true) of document will suffice in civil cases.
Document should be signed and dated (due execution).
Tape, film and photographs.
Electronic Commerce Act 2000
S.2 - electronic - “means electrical, digital, magnetic, optical, electromagnetic, biometric, photonic and other forms of related technology”.
Obligation to give reasons