Evidence CIB009 Part 2

Question 1

What is the practical obligation on the defence? where the defendant states they did not commit the act.

Answer 1

• Fact proven defendant committed act
• Defendant can provide story or evidence
• to suggest conclusion is wrong
• Not the burden of proof
• does not have to prove anything
• it applies if they state they did not do the act
• but not putting a defence

Question 2

R v Wanhalla suggested the following direction for a starting point must given about reasonable doubt?

Answer 2

• The starting point is the presumption of innocence
• Treat the accused as innocent until the Crown has proven guilt
• Presumption of innocences means the accused does not have to call or give evidence
• If after careful and impartial consideration of the evidence if you are sure the accused is guilty you must find them guilty.

Question 3

What are 4 of the 6 objectives set out in S6 of the Evidence Act 2006?

Answer 3

a - Promoting fairness to parties and witnesses
b - Providing for facts to be established by the application of logical rules
c - Avoid unjustifiable expense and delays
d - enhancing the access to the law of evidence

Question 4

What are facts relevant to the issue?

Answer 4

• Tend to prove or disprove a fact in issue
• in cases with no witness to give evidence
• but evidence is located in a search or witness may supply a piece of evidence
• together provide a picture of what happened

Question 5

What are the presumption of facts?

Answer 5

• Those that the mind naturally and logically draw from the given facts.

Question 6

What the admissibility rule about irrelevant facts and relevant facts?

Answer 6

• Irrelevant facts are inadmissible

- Relevant facts are not always admissible if they were improperly obtained

Question 7

Section 8 the general exclusion rule. In any proceeding the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will do what 2 things?

Answer 7

S8(1)

(a) - Have an unfairly prejudicial effect on the proceeding
(b) - Needlessly prolong the proceeding

Question 8

What is the definition of circumstantial evidence?

Answer 8

• Evidence of circumstances
• do not directly prove facts in issue
• but allow interference to be drawn

Question 9

What are 2 ways in which unfairness usually arises and may result in the exclusion of evidence?

Answer 9

• It would result in some unfair prejudice in proceeding

- If the evidence obtained in circumstances that make the admission unfair for the defendant

Question 10

Most of the laws of evidence concern the things that CANNOT be given in evidence. By and large they are based on common sense. What do the exclusive rules of evidence deal with? List 5 of these? HIVPO

Answer 10

HIVPO

- Hearsay, Identification, Veracity, Propensity, Opinion

Question 11

When the rules of veracity do not apply? when do the rules of propensity and veracity do not apply?

Answer 11

Veracity rule
- If the veracity is an element of the offence

Propensity and veracity rule

• during bail or sentencing hearings unless evidence is covered under S44
• S44 relates to sexual experiences of the victim with any person other than the defendant or their sexual reputation

Question 12

Outlined in S37(3) in deciding whether or not evidence proposed to be offered about the veracity of a person is helpful, the Judge may consider among any other matters whether the proposed evidence tends to show 1 or more of the following matters.

Answer 12

S37(3)
a - Lack of veracity on the person under a legal obligation to tell the truth
b - Person convicted of one more offences show propensity to be dishonest
c - any previous inconsistent statements made the person
d - bias on the part of the person
e - motive to be unhelpful

Question 13

Explain Section 37 of the evidence Act 2006. Outline S37(4) in relation to a party that calls a witness what may and may not they do when it comes to their veracity?

Answer 13

S37(4)
a - may not offer evidence to challenge the witnesses veracity unless judge deems the witness as Hostile
b - may offer evidence to the facts in issue contrary to the evidence of the witness

Question 14

In order to be admissible veracity evidence must be what?

Answer 14

• Substantially helpful in accessing the veracity of the person

Question 15

Explain S38(2) the prosecution in a criminal proceeding may offer evidence about a defendants veracity if?

Answer 15

• has offered evidence about their veracity
• or has challenged the veracity of witness
• The judge permits it

Question 16

Propensity evidence does not include?

Answer 16

• Evidence of an act or omission that is one of the elements
• Is solely or mainly about veracity

Question 17

What the general rule about propensity evidence?

Answer 17

• A party may offer propensity evidence about any person
• is subject to some restrictions about the defendant
• and in sexual cases and about a victims sexual experiences.

Question 18

Section 43(1) explains when the prosecution may offer propensity evidence about the defendant. When may this happen?

Answer 18

• evidence has a probative value to an issue in dispute

- which outweighs risk it has unfair prejudicial effect on the defendant

Question 19

Section 18 contains the exception to the exclusionary rule of hearsay. It provides that hearsay IS admissible if when? Explain section 18

Answer 19

• the circumstances provide reasonable assurance that the statement is reliable
  and - either
• the maker is unavailable
• would cause undue expense or delays if the maker was required

Question 20

Admissibility of hearsay statements contained in business records. Explain 2 reasons set out it section 19 that would make a hearsay statement contained in a business record admissible?

Answer 20

• the person who supplied the information is not available as a witness
• The Judge considers no useful purpose would be served by that person to be a witness as cannot be expected to recollect the information given any time delay.

Question 21

Section 22 outlines the requirements for a hearsay statement to be admitted. Explain S22(2) a party who purposes to offer hearsay must provide every other party with written notice stating what?

Answer 21

• intention to offer the hearsay statement in evidence
• name of the maker if known
• if was made orally and the content
• circumstances that provide reasonable assurance the statement is reliable

Question 22

Section 25(2) outlines when an opinion only (not person) is simply not admissible because of 2 reasons?

Answer 22

a - an ultimate issue to be determined in a proceeding

b - a matter of common knowledge

Question 23

What is an associated defendant?

Answer 23

• Someone a prosecution has been laid against
• from same event as the defendant
• or an offences that relates to or is connect with it

Question 24

Subject to section 121(1) and 122 if in a criminal proceeding there is a jury it is not necessary for the judge to do what 2 things under s121(2)?

Answer 24

Section 121(2)
a - warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect
b - give a direction relating to the absence of corroboration

Question 25

Witness who are 12 years or older must take an oath or affirmation before giving evidence S77. Witnesses under the age of 12 years must be informed of what?

Answer 25

• the importance of telling the truth and not telling lies

- after that make a promise to tell the truth before

Question 26

Does a witness of any age have to take an oath, make an affirmation or promise to tell the truth?

Answer 26

• No with the permission of a judge they do not have to
• if the judge gives permission
• they must inform the witness of the importance of telling the truth