Flashcards in Short answer Deck (57)
What are the exceptions to the burden of proof being on the prosecution?
• Where the defence of insanity is claimed
• Specific statutory exceptions exist eg. Possession of offensive weapon
- the offence is a public welfare regulatory offence
Describe 4 matters which the judge may consider in determining whether veracity evidence is substantially helpful?
(a) A lack of veracity on the part of the person when under a legal obligation to tell the truth.
(b) That the person has been convicted of one or more offence that indicate a propensity for dishonesty or a lack of veracity.
(c) any previous inconsistent statements made by the person.
(d) bias on the part of the person
(e) A motive on the part of the person to be untruthful.
Define circumstantial evidence and statement
Circumstantial evidence - is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn.
Statements – This is a spoken or written assertion by a person or non-verbal conduct of a person intended by that person as an assertion of any matter.
Define “Presumptions of Law” and “Presumption of Fact”?
Presumptions of Law – Are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable.
Presumptions of Fact – Are those that the mind naturally and logically draws from the given facts. They are always rebuttable.
Define “Circumstances”relating to whether a statement is reliable. s16(1), E.A 2006’
Circumstances, in relation to a statement by a person who is not a witness includes –
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person
This is a non-exhaustive definition. It provides a list of matters the Court should consider when determining whether the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
Why is opinion evidence unreliable (3 Bullet Points)?
(1) Where a witness offers a bare opinion, it holds little probative use
(2) There is a danger that a witness offering opinion evidence will usurp the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence. The opinion evidence could confuse the tribunal of fact and prolong proceedings.
(3) A witness’s evidence of opinion may be based on other evidence, which if stated expressly would be inadmissible.
Describe ‘Privilege’ and give two examples?
A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. Privileged evidence can arise from the contents of the evidence, the class of evidence or because of the nature of a particular relationship.
• s54 – communications with legal advisors
• s55 – Solicitors trust accounts
• s56 – preparatory materials for proceedings
• s57 – Settlement negotiations or mediation
Explain the s8 test?
The s8 test involves balancing the probative value of evidence against the risk that it will have an unfairly prejudicial effect on the proceeding (s8(1)(a)), or needlessly prolong the proceeding (s8(1)(b)). It is intended to help a Judge manage the length of a trial and or ensure the fairness of the proceeding.
s25 – Expert OPINION evidence. 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 any fact in the proceeding
Three (3) reasons why s85, EA 06 ‘Leading Q’s’ are not permitted.
The general rule is that leading questions may not be during evidence in chief or re-examination because:
(1) There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.
(2) Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
(3) There is a danger that leading Q’s will result in the manipulation or counsel a construction of the evidence through collusion conscious or otherwise, between counsel and the witness.
What are the four (4) reasons that evidence in rebuttal can be recalled?
Rebuttal evidence may only be admitted with the leave of the Court. Such leave may be given to the prosecution if the further evidence:
(1) Relates to a purely formal matter.
(2) Relates to a matter arising out of the conduct of the defence the relevance of which could not reasonably have been foreseen.
(3) Was not available or admissible before the prosecution’s case was closed.
(4) Is required to be admitted in the interests of justice for any other reason.
What are five (5) types of “Unacceptable” questions?
(4) Needlessly repetitive,
(5) Expressed in a language that is too complicated for the witness to understand.
Define corroboration & list two (2) offences which corroboration is required by the prosecution?
Corroboration is not defined in the Act. It is Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.
(a) Perjury (Section 108 CA 1961)
(b) False oaths (Section 110 CA 1961)
(c) False statements or declarations (Section 111 CA 1961)
(d) Treason (Section 73 CA 1961)
Explain to an 11 year olds parents what the judge will expect of the 11 year old in relation to Oath & Affirmation. (Promise to tell the truth)
Witnesses under the age of 12 must –
(1) Be informed by the judge of the importance of telling the truth and not telling lies, and
(2) After being given that information, make a promise to tell the truth, before giving evidence.
Explain two (2) ways of GIVING EVIDENCE
ORDINARY WAY – either orally in a courtroom in the presence of a judge (or judge & jury) parties to the proceeding, counsel and members of the public allowed by the judge, or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution & defence consent, the statement is admissible, and it is the personal statement of the deponent or maker.
ALTERNATIVE WAY – In a courtroom but unable to see the defendant or other person, outside the courtroom, or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio visual link AVL) where some or all of them are not physically present at the place of hearing for all or part of the proceedings.
What is the purpose of cross examination?
(1) To elicit information supporting the case of the party conducting the cross-examination.
(2) To challenge the accuracy of the testimony given in evidence in chief.
If a witness has memory loss, citing legislation can they be called hostile?
A hostile witness means the witness (s4, EA 2006)
• Exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge, or
• Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
• Refuses to answer questions or deliberately withholds evidence.
Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding.
The fact that a witness suffers from memory loss does not, by itself justify finding the witness hostile.
What are the four (4) principles of admissibility?
(4) Public Interest
What was found in R v WANHALLA in relation to reasonable doubt?
A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence
Explain the term, “Facts that prove the charge”?
The facts must prove the elements of the charge and the evidence should be made up of facts that prove that charge. The actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.
What are four (4) of the six (6) exclusive rules of evidence?
(6) Improperly obtained evidence
DEFINE the following terms: ‘Facts in Issue’ and ‘Witness’?
Facts in issue are the facts which in law need to be proven to succeed with the case. In criminal cases the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.
Facts in issue are those which –
• The prosecution must prove to establish the elements of the offence
• The defendant must prove to succeed with a defence in respect of which he or she carries the burden of proof
Witness – This is a person who gives evidence and is able to be cross examined in a proceeding.
What did the case Woolmington v DPP establish in relation to the presumption of innocence?
Subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
Explain reasonable doubt / balance of probabilities – include the part in the module where it say ‘it means…’
The crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if at the end of the case, you are sure that the accused is guilty.
A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.
Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as required in a criminal case.
DEFINE ‘Hostile Witness’ s4, EA 2006?
In relation to a witness means the witness
• Exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
• Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness, or refuses to answer questions or deliberately withholds evidence
DEFINE ‘leading question’ and what the general rule in relation to leading questions?
• One that directly or indirectly suggests a particular answer to the question (s4) Eg: answer yes or no.
• The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89)
When are leading questions permitted?
S89(1), In any proceeding a leading question must not be put to a witness in examination in chief or re-examination unless –
(a) the question relates to introductory or undisputed matters, or
(b) the question is put with the consent of all other parties, or
(c) the judge, in exercise of the Judges discretion, allows the question
Explain a ‘voir dire’?
A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Facts determined at a voir dire are sometimes referred to as ‘preliminary facts’.
Explain privilege and list four (4) categories of privilege.
Is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
s54 – Communications with legal advisors
s55 – Solicitors trust accounts
s56 – Preparatory materials for proceedings
s57 – Settlement negotiations or mediation