8.1 Evidence Act Flashcards
(34 cards)
What three ways may evidence be given?
- Oral
- Written
- Visual form
Who is the “Fact Finder”?
The Judge or Jury
When are they “Child” complainant or witnesses?
A child under 18 when the proceedings commence, this is when the charging document is filed.
S6 - Purpose of evidence law?
PPPPAE
1 - Provide facts to be established
2 - Provide rules of evidence according to BORA
3 - Promote fairness
4 - Protect rights of confidentiality and public interest
5 - Avoid unjustifiable expense and delay
6 - Enhance access to the law of evidence
What is the Whoolmington Principle?
The principle establishes that, subject to statutory exceptions, the burden of proof lies clearly with the prosecution.
Standard of Proof, Prosecution vs Defence
The prosecution must prove beyond reasonable doubt.
Where the Defence bears the burden, it must need only be proved on the balance of probabilities.
What is the “Balance of Probabilities”?
It must show that it is more probable than not.
What is the exception to the Corroboration rule?
Perjury & Treason
At what age must you take an Oath or Affirmation?
12yrs or older
Witnesses under 12yrs old must what, instead of taking the Oath or Affirmation?
Be informed by the judge of telling the truth and not telling lies and must make a promise to tell the truth.
What is the process for the conduct of trials?
- Jury is selected and informed
- Crown opening address followed by the calling of Crown witnesses
- Cross examination - Re examination.
- Defence opening address followed by the calling of Defence witnesses
- Cross examination - Re examination
- Crown closing
- Defence closing
- Judge sums up
Refreshing of memory is governed by two sets of rules, what are they?
1: Refreshing of memory by reference to written document in court.
2: Refreshing of memory out of court.
What are the four conditions of refreshing memory in court?
- Leave of the judge must be obtained
- The document must be shown to every other party
- The document must have been made while the memory was fresh
- The document must have been made by the witness or someone acting on their behalf
When can a document made by a witness be excluded from refreshing the memory?
If it was excluded under S29/29/30
(Unreliable / Influenced by oppression / Improperly obtained evidence)
What is required of the prosecution if a Witness has their memory refreshed out of court?
The Defence should be advised and a copy of the statement used should be made available if requested.
What 3 things make a witness hostile?
- Lacks veracity when giving evidence unfavorable to the those who called them
- Gives evidence which is inconsistent with the statement made
- Refuses to answer or withholds evidence
When must initial disclosure be made available?
No later than 15 working days after the commencement of proceedings.
What 6 things must be included in the initial disclosure?
- SOF
- Charging Docs
- Max penalty
- Previous Convictions
- Previous Offences if 284 OT applies
- Defendants right to apply for further info
When must full disclosure be made available?
After the Defendant has pleaded NG or when, if they’re a CYP, makes a first appearance in Youth court.
When can an associated Defendant or co Defendant be used as a witness?
If they are being tried separately or if the proceeding against them has been determined.
What are some examples of “Privileged Witnesses”?
- Legal advisors
- Doctors
- Psychologists
- Informant
General rule for propensity and 2 restrictions?
A party may offer propensity about ANY PERSON.
Restrictions:
- If about a Defendant may only be in accordance with S41-43
- In sexual cases, evidence about sexual experience in relation to S44-44A
S41 - Propensity about Defendants?
Ability to to offer evidence of good propensity and disreputable conduct.
S42 - Propensity evidence about Co-Defendants?
Defendant may offer propensity evidence about a Co-Defendant if it relates to their defence.
