Evidence 3 Flashcards
(10 cards)
What is the definition of a hearsay statement?
A statement that -
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth the truth of its contents.
The fundamental principal in criminal law is the resumption of innocence, and that the burden of proof lies with the prosecution. Outline the exceptions to this rule.
Defence of insanity s23(1) CA1961
Some offences shift the burden of proof of specific defences to the accused. Eg s134A CA1961 - defence to the charge of underage sex where the accused took reasonable steps to find out whether person was over 16yrs.
S202A (4)(B) provides defence where the accused can prove the absence of any intention to use as offensive weapon to commit an offence involving bodily injury.
The fundamental condition for the admissibility of evidence is that it must be relevant. According to section 7 of the Evidence Act 2006, when might relevant evidence NOT be admissible in a proceeding?
When the evidence was improperly obtained so may not be admissible under section 30 EA’06.
Evidence that is not relevant is not admissible.
Section 37 of the Evidence ct 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she may take a number of matters into account. Name four of these matters.
Lack of veracity on the part of the person when under the legal obligation to tell the truth.
That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity.
Any previous inconsistent statements made by the person.
Bias on the part of the person.
A motive on the part of the person to be untruthful.
Define the following terms:
Circumstantial evidence.
Statement
Circumstantial evidence:
Evidence that does not directly prove any facts in issue, but allows inferences about existence of those facts to be drawn.
Statement:
Spoken of written assertion by a person or non-verbal conduct by the person as an assertion of any matter.
What are the presumptions of law?
What are presumptions of fact?
Presumption of law - Inferences expressly drawn by the law from particular facts and may be conclusive or rebuttable. eg Child under 10 cannot be convicted.
Presumption of facts - Are those that the mind naturally and logically draws from given facts. Eg, a person has guilty knowledge if they have permission of recently stolen goods and are logical inferences and always rebuttable.
Section 16(1) Evidence Act 2006 defines “circumstances”. Name four “circumstances” to a statement by a person who is not a witness.
The nature of the statement.
The contents of the statement.
The circumstances that relate to the making of the statement;
And any circumstances that relate to the veracity of the person: and
Any circumstances that relate to the accuracy of the observation of the person.
What are the justifications behind the general exclusionary rule of evidence opinion is not admissible except as provided by section 24 & 25 of the Evidence Act 2006
In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
Opinion must be the only way in which to effectively communicate the information to the finder of fact.
The witness must be stating an opinion (be it conclusion, inference ect) from something personally perceived.
s25 - If the evidence is opinion evidence, then the order to comply with s25, the opinion must:
- Be that of an “expert”.
- Comprise “expert evidence”, and
- Offer substantial help to the fact finder in understanding other evidence or ascertaining and fact in the proceeding.
The general rule about leading questions is that leading questions are not to be put to a witness during evidence in chief or re-examination. What are the three reasons why leading questions are not generally permitted?
there is a natural tendency for people to agree with suggestions put to them by say “yes”, even if those suggestions do not precisely accord with their own view of what happened.
Council asking leading questions of their own witness can more easily elicit the answer they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
There is a a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise between council and the witness.
List four occasions where leave may be given to the prosecution to allow evidence in rebuttal?
If further evidence:
Relates to a purely formal matter.
Relates to a matter arising out of conduct of the defence, the relevance of which could not reasonably have been foreseen.
Was not available or admissible before the prosecution’s case was closed.
Is required to be admitted in the interests for justice for any other reason.
