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JB SS April 2022 > 8 Laws of Evidence > Flashcards

8 Laws of Evidence Flashcards

1
Q

The presumption of innocence is known as what?

A

The Woolmington Principal

Subject to statutory exceptions the burden of proof rests with the prosecution

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2
Q

What is the evidential burden on the defence?

A

Balance of probabilities

Defence should put forward some sort of explanation which is known as the evidential burden on defence

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3
Q

What are the exceptions to the Woolmington principal where the onus is on defence to prove beyond reasonable doubt?

A

Where the defence wishes to rely on defence of INSANITY

Specific statutory exceptions

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4
Q

What are the two standards of proof that the defence AND prosecution must meet?

A

Prosecution - beyond reasonable doubt

Defence - balance of probabiliites

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5
Q

How is beyond reasonable doubt met?

A

When the jury is sure and satisfied of guilt

Sure the accused is guilty

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6
Q

What does balance of probabilities actually mean?

A

Defence must simply show that it is more probable than not

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7
Q

Is ONE witnesses statement, that is UNSUPPORTED by other evidence sufficient to prove a case?

A

YES - but the Court MUST be satisfied the statement is RELIABLE AND it is up to the REQUIRED STANDARD.

There is NO REQUIREMENT for the judge to warn the jury that relying on uncorroborated evidence may be unreliable and there is a need for caution

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8
Q

Usually one witnesses statement will be sufficient (if it is reliable and up to the reburied standard) to prove a case - however there are two exceptions - what are these?

A

Perjury and treason

This is because the Judge MAY warn the jury that uncorroborated evidence may be unreliable and may warn the jury of the need for caution

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9
Q

If the victim was a child and there were no witnesses or evidence (so no corroboration) can the Judge warn the jury that uncorroborated evidence may be unreliable?

A

NO - if the warning would not be given to an adult in the same situation it should not be given for a child

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10
Q

Can evidence be given on what was heard?

A

YES - Evidence can be something seen or heard - both are accepted into evidence

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11
Q

What is VISUAL IDENTIFICATION defined as?

A

an assertion by a person , either written or oral, based wholly or partially on what they saw

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12
Q

What is a formal ID procedure?

A

Either a line up (ID Parade) or a photo montage

A dock ID is not a formal ID procedure

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13
Q

If you do a photo montage is that evidence of ID and accepted by the court?

A

Yes - a photo montage is accepted evidence of ID unless defence proves it is unreliable.

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14
Q

If you do a formal ID, either a line up or photo montage what are the rules around it?

A
  • suspect should be compared to no fewer that 7 other ppl
  • 7 other ppl should be of similar appearance
  • Police cannot give any indication of who the suspect is
  • Witness should be informed that suspect may or may not be included
  • Written record should be filled out correction AND sworn as to be true and complected by officer
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15
Q

What are some GOOD REASONS for NOT conducting a visual ID?

A
  • refusal by suspect to take part
  • refusal by suspect to consent for photo to be taken
  • no photo exists of suspect
  • singular appearance
  • substantial change in appearance
  • OC could not reasonable anticipate that ID would be an issue
  • Chance meeting between witness and suspect
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16
Q

Evidence of ID will be accepted by the Court when?

A

If a formal procedure (ie montage or lineup) is conducted or there is a GOOD REASON for NOT doing one.

A dock ID is unreliable

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17
Q

When can defence challenge a formal ID?

A

They can only challenge for TWO reasons
- an issue with the procedure
OR
- issues connected to the witness ie short sighted or bad lighting

18
Q

If you dont do a formal ID and have no good reason for not conducting one, will a dock ID be allowed?

A

If there was a GOOD REASON for NOT doing a formal ID (suspect refused, no photo, singular appearance…)

a DOCK ID will be inadmissible

UNLESS the prosecution proves beyond reasonable doubt that the CIRCUMSTANCES in which the ID was MADE have produced a RELIABLE ID.

19
Q

When should a formal ID take place?

A

During the investigation or soon after an arrest is made

20
Q

Who can undertake a formal ID parade or line up?

A

ID parade SHOULD be conducted by a Sgt or above

OC can be present but must not take part in proceedings

21
Q

If a witness will view more than one montage can you use the same ppl?

A

No - different participants should be used

22
Q

Can a suspect refuse to take part in a line up?

A

Yes they can refuse to take part and if they do take part can have their lawyer present

23
Q

If a witness indicates that they cant see the suspect or make a positive ID in a montage or line up what should you do?

A

The OC MUST ensure that this is recorded

24
Q

If a witnesses recognises a person as someone they know and a formal ID is not carried out as ID is not thought to be an issue.

The sufficiency of the familiarity may need to be gauged, what should you cover off in a statement to mitigate these?

A
  • how does the witness know the defendant
  • how long have they known each other
  • how long since they last saw each other
  • how many times have they met
25
Q

Identification can be made by recognition of a voice - does this have to be heard in person or can it be over the phone?

A

Can be heard either first hand or through any mechanical or electronic transmission or recording

26
Q

What do the prosecution have to prove for a voice ID?

A

That the ID is probably reliable

27
Q

What is a statement?

A

A spoken or written assertion by a person on any matter or non verbal conduct that is intended as an assertion of any matter

28
Q

When can a defendants statement be excluded?

A

If it is not reliable

29
Q

Defendant statements can be produced in Court for three reasons, what are they?

A

Offered as evidence of admission or confession

Offered as evidence that a statement was made

Offered as evidence of the defendants physical, mental or psychological condition of the defendant at the time the statement was made

30
Q

When can the judge NOT exclude a defendants statement for RELIABILITY reasons?

A

If the statement was offered only to show the defendants physical, mental or psychological condition of the defendant at the time the statement was made

OR

offered to show the court that the defendant made a statement

31
Q

What may a Judge take into account when deciding if the defendants statemetn is RELIABLE?

A
  • any pertinent physical, mental or psychological condition of the defendant AT THE TIME of when the statement was made
  • any mental, intellectual or physical disability of the defendant (whether apparent or not)
  • the nature of the questions put to the defendant
  • the manner and circumstances of the questions put to the defendant
  • the nature of any threat, promise or representation made to the defendant
32
Q

What is the definition of opression?

A

Violent, inhumane, degrading conduct towards or treatment of the defendant OR ANOTHER PERSON
OR
a threat of conduct or treatment of that kind

33
Q

If a Judge is satisfied beyond reasonable doubt that the statement was influenced by oppression what MUST they do?

A

They MUST exclude the statement

34
Q

Once the defence have raised with the judge that in their opinion the statement was influenced by oppression what do the prosecution have to do?

A

Prosecution must satisfy beyond reasonable doubt that the defendants statement was not influenced by oppression

35
Q

From whose perspective is oppression judged?

A

It is judged from the defendants perspective.

The state of mind of the alleged oppressor is irrelevant.

36
Q

If the Judge finds that evidence to be adduced has been improperly obtained, what MUST they do?

A

The Judge MUST determine whether of not the exclusion is proportionate to the impropriety by means of a balancing process

37
Q

When deciding where or not to exclude any evidence that the judge believes has been improperly obtained what MAY they consider?

A
  • the importance of the right breached
  • the seriousness of the intrusion
  • nature of the impropriety and if it was deliberate, reckless or done in bad faith
  • nature and quality of the evidence obtained
  • seriousness of the offence
  • other ways of getting the evidence that were not used
  • other remedies to exclusion
  • impropriety necessary to avoid physical danger to police
  • urgency in obtaining improperly obtained evidence

Judge MUST exclude evidence if exclusion is proportionate to the impropriety

38
Q

When is evidence improperly obtained?

A
  • breaches any enactment or rule of law
  • would be inadmissible if offered by prosecution
  • unfair

If question amount to CROSS EXAMINATION

39
Q

When must a person receive the BOR caution?

A

When police have sufficient evident to charge a person with an offence or where a member of police seeks to question a person in custody

40
Q

If a defendant is questioned about a statement made by a co offender what MUST you do?

A

The SUBSTANCE of the statement or NATURE of the evidence MUST be FAIRLY EXPLAINED

41
Q

If you intend to interview a person in custody how should this be recorded?

A

Preferably be recorded by video
if that is impractical or the defendant declines
Must be PERMANENTLY recorded on audio or in writing

Person making the statement MUST be given the opportunity to watch or read it, correct any errors, add any info, if written sign it

JB SS April 2022 (10 decks)

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