YG Study Questions - Admissions, Identification Evidence, Improperly/Illegally Obtained Evidence Flashcards
What is the test for admitting improperly/illegally obtained evidence
Evidence that was obtained (a) improperly or in contravention of Australian law or (b) in consequence of impropriety or contravention of Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence because of the way it was obtained.
When is an admission taken to have been improperly obtained
(2) W/o limiting above, evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been improperly obtained if the person conducting the questioning:
● (a) Did or omitted to do an act in the course of questioning, even she they ought reasonably have known that was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
● (b) Made a false statement in the course of questioning even though they knew/ought reasonably have known that the statement was false and that making it was likely to cause the person who was being questioned to make an admission.
What are the eight matters to be taken into account in the balancing exercise
● (a) probative value of the evidence;
● (b) importance of evidence in proceeding;
● (c) nature of the offence, COA or defence and nature of subject matter of proceeding
● (d) gravity of the impropriety or contravention
● (e) whether that impropriety/contravention wadeliberate or reckless
● (f) whether “”” was contrary/inconsistent with a right of person recognised in ICCPR
● (g) whether any other proceeding has been/is likely to be taken in relation to the “””;
● (h) difficulty (if any) of obtaining the evidence without impropriety or contravention
What is an admission? Give an example. Give a subtle example.
A previous representation that is:
● (a) Made by a person who is or becomes a party to a proceeding (including accused in criminal proceeding); and is
● (b) Adverse to the person’s interest in the outcome of the proceeding
What section provides that the hearsay and opinion rules do not apply to evidence of an admission?
Section 81
Yanni admitted to Jakub that he stole a dolmade, who passed on the message to Tom Smalley. At first blush, can Tom give evidence of that admission?
Section 82
Give an overview of section 84. Give an example of evidence that would not satisfy the section, and a borderline example that might.
84 Exclusion of admissions influenced by violence and other certain conduct
(1) Not admissible unless the court is satisfied that the admission and the making of the admission were not influenced (a) by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or another person, or (b) a threat of conduct of that kind. (2) Defence has to raise the issue. High bar.
Yanni is silent in police questioning for assaulting a passerby by throwing tzatziki dip at them. How can that silence be used against him?
It can’t: see s 89
Assume Yanni admitted to throwing the dip. The interview is recorded on police transcript. What might prevent the police from using that transcript in evidence?
86: ● (1) Only applies if oral admission made to IO in response to a q or rep put by IO
● (2) Doc prepared by IO not admissible to prove the admission unless A has acknowledged that the doc is a true record of the question, rep or response →(3) this must be signed and in writing
What additional protection does an accused get in criminal proceedings in respect of the adducing of admissions? Give an example
● (1)(a) Only applies to crim and to an admission made to or in the presence of an IO who at the time was performing functions in connection with investig of an offence; or
● (b) As a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or continued.
● (2) If either of these apply:
○ Evidence of admission NOT ADMISSIBLE unless the circs were such as to make it unlikely that the truth of the admission was adversely affected.
■ (3) Court must take into account:
● (a) Condition or characteristic of the accused e.g. age, personality, education, mental/intellectual disability; and
● (b) if made in response to questioning:
○ (i) Nature of Qs and manner in which they were put and (ii) the nature of any threat, promise or inducement made to the person questioned.
What is IE? Give an example
Identification evidence is defined in dictionary → means evidence that is—
● (a) an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
○ (i) the offence for which the accused is being prosecuted was committed; or
○ (ii) an act connected to that offence was done—
● at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
● (b) a report (whether oral or in writing) of such an assertion;
Do the IE evidence provisions apply in all proceedings?
No (113)
What is VIE? Give an example
(1) In this section, visual identification evidence means IE relating to identification based wholly/partly on what a person saw but doesn’t include picture IE
When is VIE admissible?
(2) VIE adduced by the prosecutor is not admissible unless
(a) an ID parade that included the A was held before the identification was made; or
(b) It would not have been reasonable to have held such a parade, or
(c) A refused to take part in such a parade, AND
the identification was made without the person who made it having been intentionally influenced to identify the accused.
(3) Without limiting matters in determining whether it was reasonable to hold an identification parade, Court it is to take into account:
(a) kind of offence concerned and its gravity
(b) importance of the evidence
(c) practicality of holding ID parade, regarding, inter alia:
(i) if the accused failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether the identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an ID parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.
(5)(a) If A refused to take part in ID parade unless their lawyer or other person was present
(b) there were at time parade going to be conducted, RG to believe not reasonably practicable for that lawyer/person to be present,
it is presumed that it wouldn’t have been reasonable to have held an ID parade at that time.
(6) In determining whether it was reasonable to have held an ID parade, court is not to take into account availability of pictures/photographs that could be used in making identifications.
What is picture IE?
In this section, picture IE means IE relating to an identification made wholly or partly by the person who made identification examining pictures kept for use of POs.
