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Trial Flashcards

1
Q

7 reasons to raise character evidence

A

all parties agree
adduced by D or given in answer to Q asked by D in cross examination and intended to elicit it
important explanatory evidence
relevant to an important matter in issue between P and D
substantial probative value in relation to an important matter in issue between D and coD
evidence to correct a false impression given by D
D has made an attack on another person’s character

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2
Q

meaning of relevant to an important matter in issue between D and P

A
  • propensity to be untruthful (unless its not suggested Ds case is untruthful) shown by previous offence where D was untruthful or previous conviction where D pleaded NG, gave evidence and wasn’t believed.
  • propensity to commit crime of same description or category or significant factual similarities (categories are theft and sexual) (unless makes it no more likely D is guilty)
    unless too much time passed since past offence
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3
Q

when is character evidence contaminated

A

when witnesses collude to fabricate evidence

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4
Q

what happens if character evidence is contaminated

A

in CC judge can acquit or order retrial

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5
Q

procedure to rely on bad character evidence

A

serve notice of intention to use it on court and other parties and provide written record of previous convictions

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6
Q

how can D oppose the use of bad character evidence

A

apply to court for it to be excluded, send application to court and other parties

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7
Q

which bad character evidence gateways can only be used by P

A

important explanatory evidence
correct false impression given by D
D attacked anothers character

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8
Q

which bad character evidence gateway can only be used by D

A

matter in issue between D and Co-D

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9
Q

when can the court exclude bad character evidence

A

it would have such an adverse effect on fairness of procedings that it ought not to be included

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10
Q

order of trial at MC

A 
PS case: opening speech and witnesses 
poss no case to answer
Ds case and witness (d first witness)
Ps closing speech
Ds closing speech
verdict
sentencing
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11
Q

order of trial at CC

A 
poss preliminary hearing 
arraignment at PTPH
jury sworn in aka empannelled
Ps case: opening and witnesses
poss no case to answer
Ds case
Ps closing speech
Ds closing speech
Judge summing up
verdict
sentencing
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12
Q

if D gives evidence as a witness when should they be called in the order of witnesses

A

first

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13
Q

how can D change plea

A

apply in writing asap

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14
Q

what is included in judges summing up

A

law and evidence
law - burden and standard of proof, requirements of offence and other issues raised in case
evidence - facts to be determined, evidence and arguments raised, inferences from facts

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15
Q

can judge require jury to take longer than 2.10 hrs

A

yes

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16
Q

if found NG do you pay costs

A

no, if no legal aid then judge orders costs to be paid by state

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17
Q

what if jury cannot reach verdict in reasonable time

A

judge will discharge them and P will order retrial

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18
Q

examination in chief

A

cannot ask leading Qs, only open Qs

ask Qs to witness to repeat whats in witness statement - they tell their story

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19
Q

leading Q

A

suggestive of answer

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20
Q

cross examination

A

put case to witness and Ds defence or cannot rely on it later
undermine credibility
obtain favourable evidence
can use closed and leading questions

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21
Q

putting your case

A

suggest alternative version of events - must put Ds defence in cross examination or cannot rely on it in their own evidence

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22
Q

re-examination

A

party who called witness can ask more Qs re matters that arose in cross examination
only open non-leading questions

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23
Q

min age to give evidence at trial

A

any age - but under 14 give unsworn evidence
any age must be able to understand the seriousness or matter and responsibility to tell truth - assumed unless evidence to contrary

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24
Q

what ages are competent

A

all ages are competent

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25
who is a compellable witness
any competent person
26
compellable
can be summoned and compelled to testify
27
impact of failing to attend or attending but refusing to answer Q
contempt of court
28
when is a person not competent to be a witness
unable to understand Qs and give answers that can be understood
29
what if person can satisfy competency test but have defective intellect
they can give unsworn evidence
30
who decides if a person has competence to be a witness
judge
31
are D and Co-D competent witnesses for P
no - some exceptions for co-D
32
when can Co-D be a witness for P
att-gen files notice to abandon P order made in separate trials CoD formally acquitted CoD pleads guilty
33
can co-D give evidence for D
competent but not compellable
34
can D give evidence in their own case
competent but not compellable
35
can spouse of D be compelled to give evidence
``` if spouse not coD for P - not unless special offence for D- compellable for coD - only special offences if spouse is coD never compelled to give evidence ```
36
what are special offences for spouse to be a witness
assult, injury, threat of injury to spouse or under 16, sexual offences, attempted or aiding/abetting where victim is under 16
37
can D use special measures as a witness
no unless mental disorder that would impair their effectiveness as a witness
38
when can a witness apply for special measures
fear, sexual offences, gun/knife crime, under 18, mental or physical disorder
39
when does a witness automatically qualify for special measures
sexual offence - otherwise court decides
40
what must judge warn jury when special measures are used
warn them that special measures have been used ut cannot suggest anything prejudicial about D giving rise to need for measures
41
how to sentence
``` determine category based on harm and culpability determine starting point and range based on aggravating and mitigating factors factors to reduce sentence guilty plea dangerous offender totality principle compensation and ancilliary orders reasons ```
42
guilty plea reductions
1/3 at MC before sent to CC 1/4 after PTPH 1/10 first day of trial can be reduced to zero during trial
43
how is second half of sentence usually served when sentence over 2 years
on license unless offender of particular concern
44
how do offenders of particular concern seek license for second half of offence
don't get it automatically but can apply for parol then may be released any time from half way point to end of sentence. then released on license
45
how long does a sentence have to be to be eligible for suspension
14 days to 2 years
46
how long can a sentence be suspended for
6m - 2 years
47
max fine that can be imposed if suspended sentence is breached but court doesn't give effect to custodial sentence
2500
48
what is the operational period
period for which a sentence is suspended
49
what is the supervision period
period during which conditions must be met during a suspended sentence
50
how long can supervision period be
must end no later than operational period
51
when does a suspended sentence take effect
conditions are broken or another offence is commited
52
what must a court do when a suspended sentence is breached
order sentence to take effect either for original length or shorter length if that would be unjust then add conditions or change operation period or suspension period
53
what if D breaches community sentence
if without reasonable excuse D gets warning
54
what if D breaches community sentence several times in 12 months
back to court: more onerous community order or resentence and can get custodial sentence even if original offence wasn't custodial
55
what if further offence committed during community sentence
leave community order in place or revoke if new offence requires custody or resentence
56
do spouse compellability rules apply when divorced
no if divorced at date of trial it is like they were never married
57
what sentencing powers do CC have on appeal
can impose any sentence that MC could have imposed
58
process for appealing to HC by way of case statement
apply to MC within 21 days of decision application identifies Qs of law MC then state a case for HC which means clerk will prepare draft statement f case to set out issues prepared with magistrate or judge who heard case then sent to P and D for amendments final version sent to appealing party to lodge with HC give notice to other party that it is done
59
what power does CofA have is att-Gen appeals to it on basis that sentence is unduly lenient
CofA has power to increase sentence but it must be a sentence that CC could have passed
60
when can att-gen appeal to C of A on basis that sentence is unduly lenient
must be indictable, specified either way or CofA gave permission
61
can the prosecution appeal against an acquittal
no but can appeal against a ruing during the trial that effectively ended the trial or significantly weakened the prosecutions case
62
when does the rule of double jeopardy not apply
``` murder attempted murder manslaughter kindnapping sexual offences drugs aggravated arson ```
63
what is the rule of double jeopardy
cannot try D for same offence twice
64
when will CofA qush a conviction and order a retrial
new and comeplling evidence and interests of justice
65
when can a MC decision be challenged by JR
makes order they had no power to make (ultra vires) or MC breaches rules of natural justice (fair hearing or bias)
66
when is a conviction not unsafe despite a mistake having been made
guilty verdict would have still resulted
67
how long do you have to appeal a conviction to C of A
28 days of conviction at CC not sentence
68
how to appeal conviction to C of A from CC
D has 28 days to serve appeal notice with draft grounds of appeal serve on registrar at criminal appeal c of a set out grounds on which it is unsafe on receipt of docs registrar gets transcript of evidence from trial and judges summing up given to judge who decides if permission to appeal and public funding is granted
69
effect of making an appeal that is completely without merit
judge may dismiss appeal and make a direction as to loss of time
70
what is a direction as to loss of time
time in custody waiting for outcome of appeal doesn't count to time D must serve for their sentence as it normally would
71
when must C of A order retrial
if appeal against conviction is allowed and interests of justice require it if court satisfied that D would have been acquitted then no retrial necessary otherwise order retrial unless unfair to D or somehow inappropriate

Criminal litigation (6 decks)

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