Chapter 8 Selected Issues in the Law of Evidence Flashcards Preview

Snr Sgt CPK Dec 21 > Chapter 8 Selected Issues in the Law of Evidence > Flashcards

Flashcards in Chapter 8 Selected Issues in the Law of Evidence Deck (23)
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1
Q

What are somethings the Judge will consider when deciding whether a statement is to be excluded?

A
  • Physical, mental, phycological condition at the time the statement was made.
  • Mental, Physical, Intellectual disability
  • Nature of questions
  • Threat, promise, Representation
2
Q

What will the court weigh up when deciding if evidence had been improperly obtained?

A
  • Importance of any right breached
  • nature of impropriety
  • nature + quality of improperly gained evidence.
  • the seriousness of the offence.
  • any other investigatory techniques available but not used
  • alternative remedies?
  • impropriety was necessary to avoid apprehension physical danger
  • the urgency in obtaining the improperly gained evidence
3
Q

What is visual ID evidence?

A
  • An assertion based on what a person saw, to the effect the defendant was present or near a place where an offence occured
  • An account (oral, written) of an account regarding the above
4
Q

When would a statement be improperly obtained?

A
  • Breach of BOR
  • Obtained unfairly

3 rules broken
Improperly
Oppression
Reliability Rule

5
Q

What is resemblance evidence?

A

Evidence where a witness shares features/attributes of a defendant rather than actual evidence

6
Q

s45 allows the defence to challenge what type of prosecution evidence?

A

The reliability of the visual ID evidence

7
Q

When should a formal ID be completed?

A

During an investigation or soon after arrest

8
Q

What is the burden of proof, if a judge deems a statement was gained unreliably?

A

Balance of Probabilities

9
Q

If a judge deems the statement as unreliable, when can a statement still be offered as evidence?

A

When it only pertains to the defendant physical, mental + phycological condition

10
Q

If BOR have been given before K9 or taking a statement. What must happen after a person is K9’d?

A

BOR given again

11
Q

What does oppression mean in this place?

A

Oppressive, violent, inhuman, degrading conduct.

Threat of conduct or treatment of the kind

12
Q

Where there has been no formal I.D completed (no good reason) the evidence will be inadmissible unless the prosecution proves what?

A

Beyond reasonable doubt that the circumstances in which the I.D was made have produced a reliable I.D

13
Q

What are 3 rule that make a defendants statement inadmissible?

A
  • RELIABILITY RULE
    balance of probabilities the statement was not taken in a way to affect reliability.
  • OPRESSION RULE
    whether a statement was influenced by oppression and informs (beyond reasonable doubt)
  • IMPROPERLY OBTAINED EVIDENCE RULE
    whether evidence was improperly obtained on the balance of probabilities.
14
Q

Generally, there are 2 burdens of proof, What are they and who do they relate to.

A

Beyond reasonable doubt - Prosecution

Balance of probabilities - Defendant

15
Q

When is the burden of Proof placed on the defendant?

A
  • For defences of insanity
  • Specific statutory exceptions
  • Regarding I.D evidence
16
Q

How would you describe:

‘Beyond reasonable doubt’
and
‘on the balance of probabilities’

A
  • A very high standard of proof where by the end of the trial you are sure they are guilty.
  • More probable than not
17
Q

There are 2 types of offences where the evidence of one witness is not enough.

What are they?

A

Perjury related offences
and
Treason

18
Q

s125(1)

Prohibits a corroboration warning in cases involving ____________ complainants

A

Child

19
Q

According to s45(3) what are the some instructions for formal I.D? (Parade)

A
  • Sgt or above
  • O/C case not present
  • 7 people similar age, race, appearance etc
  • Not Police
  • Suspects should be told right to refuse to participate.
  • Witness cant see suspect before
  • witness not to be rushed Q’s
  • Tell witness suspect may or may not be present
20
Q

Voice ID is the assertion of a voice heard eg: recording on phone etc is the defendant. The prosecution has to prove what in order for it to be reliable evidence?

A

On the balance of probabilities the circumstances in which the ID was made was reliable.

21
Q

What happens to evidence gained from an improperly obtained statement?

A

New evidence is deemed inadmissible also

22
Q

What are some good reasons for not following a formal ID procedure

A
  • refusal of suspect to take part and doesnt have a photo
  • singular appearance of suspect cannot be disguised.
  • substantial change in appearance
  • could not reasonably anticipate ID an issue.
  • ID pointed out to officer at scene.
  • after chance meeting of suspect and witness
23
Q

s45

When will a formal ID be unreliable?

A
  • balance of probabilities defence proves it unreliable

- if no formal ID has been followed without good reason