Evidence Act 2006 Flashcards
Section 4
HOSTILE WITNESS
A hostile witness is one who:
Liar - L.I.R
HOSTILE WITNESS
A hostile witness is one who:
- EXHIBITS, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge OR
- Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness OR
- Refuses to answer questions or deliberately with holds evidence.
Section 7
What is the Fundamental principle that relevant evidence admissible?
Definition of Relevant Evidence
Fundamental principle that relevant evidence admissible
Relevant evidence is defined as any
“Evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding” (s7(3)).
It includes direct evidence and circumstantial evidence
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(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
Section 8
General Exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will…….
General exclusion
(1) In any proceeding, the Judge must exclude evidence if its PROBATIVE VALUE is OUTWEIGHED by the risk that the evidence will—
(a) have an UNFAIRLY PREJUDICIAL EFFECT on the proceeding; or
(b) NEEDLESSLY PROLONG the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, THE JUDGE MUST TAKE INTO ACCOUNT THE RIGHT OF THE DEFENDANT TO OFFER AN EFFECTIVE DEFENCE
Section 35
When is a previous statement of a witness admissible?
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that THE STATEMENT IS NECESSARY TO RESPOND TO A CHALLENGE TO THE WITNESS’S VERACITY or ACCURACY, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is CONSISTENT WITH THE WITNESS’s evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
Section 44
Evidence Act
Section 44
Evidence of Sexual Experience of Complainants in Sexual Cases
1) In a sexual case, NO EVIDENCE CAN BE GIVEN AND NO QUESTION CAN BE PUT TO A WITNESS relating directly or indirectly to the SEXUAL EXPERIENCE of the COMPLAINANT with any person OTHER THAN the defendant, EXCEPT with the permission of the Judge.
(2) In a sexual case, NO EVIDENCE CAN BE GIVEN AND NO QUESTION CAN BE PUT TO A WITNESS that relates directly or indirectly to the REPUTATION of the complainant in sexual matters.
(3) In an application for permission under subsection (1), the JUDGE must not grant permission UNLESS SATISFIED that the evidence or question IS OF SUCH DIRECT RELEVANCE TO FACTS IN ISSUE in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
Section 45
Admissibility of visual identification evidence
Admissibility of visual identification evidence
(1) If a formal procedure is followed in obtaining visual ID evidence of a person alleged to have committed an offence or
- there was a good reason for not following a formal procedure
- that evidence is admissible in a criminal proceeding
- unless the DEFENDANT PROVES on the balance of probabilities that the EVIDENCE is UNRELIABLE.
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(2) If a formal procedure IS NOT FOLLOWED by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence AND
- there was NO GOOD REASON for not following a formal procedure
- that evidence is INADMISSIBLE in a criminal proceeding
- UNLESS unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification
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(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed ASAP AFTER THE ALLEGED OFFENCE and
(b) in which the person to be identified is compared to NO FEWER THAN 7 other persons who are similar in appearance to the person to be identified; and
(c) in which NO INDICATION GIVEN to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified MAY or MAY NOT BE AMONG THE PERSONS in the procedure; and
(e) that IS THE SUBJECT OF A WRITTEN RECORD OF THE PROCEDURE actually followed that is SWORN TO BE TRUE AND COMPLETE by the officer who conducted the procedure and PROVIDED TO THE JUDGE AND THE DEFENDANT (but not the jury) at the hearing; and
(f) that IS THE SUBJECT OF A PICTORIAL RECORD OF WHAT THE WITNESS looked at that is prepared and CERTIFIED TO BE TRUE and COMPLETE BY THE OFFICER WHO CONDUCTED THE PROCEDURE and provided to the Judge and the defendant
Section 87
Privacy as to witness’s precise address
Privacy as to witness’s precise address
(1) In any proceeding, the PRECISE PARTICULARS OF A WITNESS’s ADDRESS MAY NOT, without the permission of the Judge, be —
(a) the SUBJECT OF ANY QUESTION TO A WITNESS or INCLUDED in any evidence given; or
(b) INCLUDED IN ANY STATEMENT OR REMARK made by a witness, lawyer, officer of the court, or any other person.
(2) The JUDGE MUST NOT grant permission under subsection
(1) UNLESS SATISFIED that the question to be put, the evidence to be given, or the statement or remark to be made, IS OF SUFFICIENT DIRECT RELEVANCE TO THE FACTS IN ISSUE that to exclude it would be contrary to the interests of justice
Section 88
Restriction on disclosure of complainant’s occupation in sexual cases
Restriction on disclosure of complainant’s occupation in sexual cases
(1) In a sexual case, except with the permission of the Judge,—
(a) NO QUESTION MAY BE PUT TO THE COMPLAINANT OR ANY OTHER WITNESS, and NO EVIDENCE may be given, concerning the complainant’s OCCUPATION; and
(b) NO STATEMENT OR REMARK MAY BE MADE IN COURT by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation.
(2) The Judge must not grant permission under subsection
(1) UNLESS SATISFIED that the question to be put, the evidence to be given, or the statement or remark to be made, IS OF SUFFICIENT DIRECT RELEVANCE TO THE FACTS IN ISSUE that to exclude it WOULD BE CONTRARY TO THE INTERESTS OF JUSTICE
Section 121
Corroboration
Corroboration
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason
Definition -
- Hearsay statement
- Statement
- Witness
HEARSAY
hearsay statement means a statement that—(a )was made by a person other than a witness; and
(b)is offered in evidence at the proceeding
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STATEMENT means—
(a) a spoken or written assertion by a person of any matter; or
(b) non-verbal conduct of a person that
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WITNESS means a person who gives evidence and is able to be cross-examined in a proceeding.
What 4 fundamental principles of evidence law does the Court need to consider in deciding whether evidence is admissible?
PURR Public Interest Unfairness Relevance Reliability
Explain the Hearsay Evidence with respect to
Section 18
General admissibility of hearsay
General admissibility of hearsay
(1)A hearsay statement is admissible in any proceeding if—
(a) the CIRCUMSTANCES RELATING TO THE STATEMENT provide REASONABLE ASSURANCE that the statement is reliable; and
(b) either—
(i) the maker of the statement is UNAVAILABLE as a witness; or
(ii) the JUDGE CONSIDERS that UNDUE EXPENSE or DELAY would be caused if the maker of the statement were required to be a witness.
What are some good reasons for not following a formal procedure?
Section 45(4)
hint: I/CROSS
I CROSS
ID made to the officer soon after the offence was reported and IN the course of that officers investigation.
CHANCE MEETING - Made after a chance meeting between the person who made the identification and person alleged to have committed the offence.
REFUSAL of the person to be identified to take part in the procedure.
OFFICER couldn’t reasonable anticipate that identification would be an issue at trial
SINGULAR appearance cannot be disguised
SUBSTANTIAL change in appearance after the alleged offence and before it was practical to hold a formal procedure.
