CL Extra

Question 1

Give an outline of hearsay procedure

Answer 1

Notice
Required where party intends to introduce hearsay evidence under:
-IOJ
-witness unavailable
-doc prepared in contemplation of criminal proceedings
-multiple hearsay

Notice served on court and every other party. Must:
-identify hearsay
-set out facts relied on to make evidence admissible
-explain how those facts will be proved if disputed
-explain why evidence admissible

P must serve notice not more than:
-20 business days after NG plea in MC
-10 business days after NG plea in CC
D must serve notice ASAP

Question 2

How can hearsay evidence be opposed?

Answer 2

Party can object to hearsay evidence by serving app on court and every other party ASAP and in any event not more than 10 business days after either:
-service of notice to introduce evidence
-service of evidence objected to (if no notice required for that evidence)
-D pleads not guilty

App must explain:
-which, if any, facts set out in notice the party disputes
-why evidence not admissible, and
-any other objection to evidence

Question 3

What happens at first hearing regarding a summary only offence?

Answer 3

Asked to enter a plea

G: proceed to sentence (unless adjourned for further info)
NG: Set a trial date and deal with necessary case management - includes completing Preparation for Effective Trial Form, lists:
-estimated length of trial
-trial issues
-advance warning of apps such as special measures, bad character, hearsay
etc

Question 4

What is the rule with pre-trial hearing decisions? Example of what they may deal with?

Answer 4

Binding until case disposed of by:
-conviction or acquittal or
-case dismissed

Admissibility of evidence

Question 5

Summary trial:
Can D make an opening speech?
When can P make a closing speech?
When can D make a closing speech?

Answer 5

No

D is represented or
They have introduced evidence other than their own (e.g. what they say in witness box)

D always entitled to closing speech

Question 6

What does the superintendent consider when extending detention?

Answer 6

Indictable offence
Whether necessary and investigation is being conducted diligently and expeditiously

Question 7

What is the role of the appropriate adult?

Answer 7

-Ensure detained person know what is happening and why
-Support, advise, assist
-Ensure rights of person are protected and respect
-Can instruct a solicitor

Question 8

Process of identification where suspect is known to the police?

Not known?

Answer 8

1. Video identification (shown moving images of known suspect together with image of others who resemble suspect)
   UNLESS video identification is not practicable, or identification parade is more suitable
2. Identification parade (suspect in line of others)
3. Group identification (suspect sees informal group of people) - can take place covertly without suspects consent

Not known = photographs

Question 9

Who does the right to bail not apply to?

What does this mean?

Answer 9

a) Those appealing conviction or sentence
b) to defendants being committed for sentence from MC to CC

Can be granted, but the presumption does not apply

Question 10

What are the consequences of failing to disclose a defence statement in CC?
MC?

Answer 10

CC = jury can draw adverse inferences. Also, prosecution or co-defendant can comment on such failure without the leave of the court

MC = no adverse inferences (as not compulsory) but can’t make an app for specific disclosure

Question 11

When can a s78 app be made?

What will take place if there is a dispute as to facts? What is this?

When would this not be held?

What can be done at trial if app is unsuccessful?

Answer 11

Before trial
At commencement of trial
Just prior to prosecution seeking to admit evidence which defence wish to be excluded

Although, if app refers to evidence which will fatally weaken prosecution case, will want it to be heard earlier before trial

Voir dire - mini trial
CC - absence of jury
MC - mags
P must prove their factual basis beyond reasonable doubt

Voir dire not held where background facts are agreed - legal arguments will just be made on the agreed factual basis

Can be adduced at trial but other party can still attack it

Question 12

How will court approach a s76 application where ‘unreliable’?

Answer 12

1) Identify thing said or done
2) Ask whether thing said or done is likely to render confession unreliable (cannot be relied upon as being the truth)
3) Ask whether P has proved beyond reasonable doubt that confession was not obtained in consequence of thing said or done

Question 13

What is the warning regarding bad character that judge will give to jury?

Answer 13

Should not convict solely or mainly on evidence of bad character

Question 15

What is the rule on previous consistent statements?

Answer 15

Generally, not admissible that when the witness makes allegation in court, that previous statements or allegations consistent will be admitted

UNLESS:
-Res gestae
-Suspect’s response to police allegations
-Complaints
-Rebuttal of recent fabrication (used to prove not the case)

Question 16

What is the rule regarding bad character evidence and state of case as a whole?

Answer 16

Cannot use bad character evidence to bolster a weak case (consider how much evidence is available)

Question 17

What is the procedure for bail?

Answer 17

If D refused bail by police - will appear before next available MC in custody

On D’s arrival at court, defence advocate will check with prosecutor if prosecutor intends to object to bail being granted

If no objections - stated to court
If p objects - prosecutor outlines objections to court (including handing previous con to court)

D then presents arguments for bail to be granted

Then court makes a decision - if D has a right to apply to bail and court refuses or imposes conditions - must give reasons