Case Law Flashcards
(33 cards)
Orchard v SPOONER
POLICE BEING LED THROUGH STATEMENT IN WITNESS BOX … The Court of Appeal has held that the court has a discretion as to whether a police officer can read or is led through his statement (answer questions with the assistance of it). They suggested the latter would be more appropriate where the police officer was involved directly as a victim.
BROWNE v DUNN
I PUT IT TO YOU
When a witness is giving evidence and you intend to call evidence that contradicts them, you must put the substance of that contradictory evidence to the witness during cross-examination and give them the opportunity to comment on it.
PROUDMAN V DAYMAN
The leading case that explores the defence of honest and reasonable mistake is Proudman v Dayman (1941) HCA 28 which establishes that for strict liability offences, such as drink driving and speeding offences, an accused person will be found ‘not guilty’ if he or she held an honest and reasonable belief (although a mistaken belief) in a state of facts which, if they existed, would have made the accused person’s act innocent.
R v GRAHAM
In Graham v The Queen, the High Court held that a complaint made six years after an alleged sexual assault was not ‘fresh in the memory’ of the complainant for the purpose of s 66 at the time the representation—the complaint—was made.
R v ADAM
Not limited to hours or days, sometimes 7 weeks based on severity of incident. Having regard to normal expectation and experience of life, I would regard a statement made at that point in time as still being fresh in the memory of a relevant witness.
R v WHITBY
a former soldier who gave evidence that he’d previously seen numbers of drunken men - and police officers - who gave evidence that the accused’s breath smelt of intoxicating liquor, was unsteady on his feet, face flushed, eyes bleary, had 4 saliva on lips and had no idea how much he’d had to drink
R V HONEYSETT
Expert opinion must not be from an inexperienced person. The Court held that Professor Henneberg’s opinion was not based wholly or substantially on his knowledge of anatom
Weal v Bottom
Expert opinion must be from demonstrated experiencecould be given by an expert, properly so called, that is to say, by a person who by study and instruction in some relevant scientific or specialised field was able to express an opinion, founded on scientific or specialised knowledge thus acquired, as to the likely behaviour of such a vehicle so placed”
R v Leung + Wong
Ad-Hoc witness can give evidence on voice ID
Listening to a recording to transcribe it and then hearing that same voice in a TI… Drug code expert statements rely on this case law and KELLER 2006
R v TAHERE
ID PARADE CAN BE CONDUCTED UP UNTIL THE EVE OF THE TRIAL.
PFENNING TEST
Tendency and coincidence – Probative value v Prejudicial. propensity or similar fact evidence is admissible if its probative value is such that there is no rational view of the evidence that is consistent with the innocence of the accused
R v HOCH
Possibility of joint concoction … The evidence … has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence
R v CRABBE
Recklessness … An accused is said to have been reckless if they acted in the knowledge that a particular harmful consequence would probably result from their conduct, but they decided to continue their actions regardless of that consequence.
R v WHYBROW
Must have the intent to carry out the crime for an attempt
The justices held that there was a distinction between the mens rea for murder and attempted murder. Where the defendant is charged with an attempted murder, the intent to kill is the key ingredient of the crime.
R v HE KAW TEH
Drugs were changed out for an inert substance – must have intent/mens rea
Accused took every step to complete the offence and would have completed it had the police not intervened. Was taken that the inert substance was assumed but the accused to be the actual heroin and therefore he had completed the offence.
R v FILIPETTI
Buhda Sticks were in a common area and police could not prove exclusive possession
“The inescapable fact is there was not enough evidence to enable the jury to rule out the possibility that these buddha sticks in fact were in possession of one of the other occupants,” his Honour continued. And there was no evidence to show they were in Filippetti’s exclusive control.
R v IRELAND – R v TALEB
Persistance in questioning after refusal
Justice Hamill pointed to the 1970 High Court of Australia case The Queen versus Ireland, in which the court outlined that the “rule of practice” in these circumstances is that it’s “improper for police… to persist in questioning a suspect after an indication” that they won’t be answering.
R v TAYLOR
Reliability of an admission to an investigating official, a court is not confined to the manner in which police conducted the interviewing process. The subjective characteristics of an accused, without more, may adversely affect the likelihood of the truthfulness of the admission for the purpose of s 85(2)
R v BRAUN
Admissions excluded due to mental state
In R v Braun, the accused made a series of admissions to deliberately setting a fire which caused the death of her brother. She also confessed to police in a formal record of interview which was video and audio recorded. The accused was 22 years old and had a history of admissions to psychiatric units; her participation in the record of interview occurred shortly after her discharge from psychiatric care.
R v WOLTON
Hearsay evidence - Hello Daddy
The child spoke on the telephone saying “Hello Daddy.” Additional evidence was led that the child called the appellant and no-one else “Daddy”.
R v MUNDARRA SMITH
CCTV IDENTIFICATION – opinion evidence not admitted
If the lay witness is in no better position than the jury to form an opinion, the witness’s opinion is not admissible. An example is a police officer expressing the opinion that the person depicted in a bank photograph of a robbery is the accused:
R v RP
Doli Incapax
Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted.
R v ADLER
VOICE ID
Person familiar with voice of the accused can give evidence as to their ID.
JONES v DUNKEL
FAILURE TO CALL A WITNESS
This rule operates where there is an unexplained failure by a party to give evidence, to call witneses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party
