[ 3.1 ] Exam questions Flashcards
What is the rule in Browne v Dunn?
PUT-ALLE-FAIR-BREACH-SECTION
- The rule in Browne v Dunne requires a cross-examiner to put to each of the opponent’s witnesses so much of his or her own case that as concerns that witness.
- This includes putting any allegations or imputations that counsel intends to make against the witness.
- This is a rule of fairness that allows witnesses to confront challenges to their evidence.
- If the rule is breached, the trial judge has a discretion to address the unfairness, for example by giving jury directions.
- Section 46 of EA permits a witness to be recalled where there has been a failure to cross-examine the witness in specified circumstances.
What is the rule in Jones v Dunkel?
- The rule in Jones v Dunkel permits an inference to be drawn from the unexplained failure of a party to call a witness that the witness’ evidence would have not have assisted the party’s case.
- However, the mode of reasoning in this rule ordinarily cannot be applied to an accused in a criminal trial because the accused is not bound to give evidence and it is for P to prove its case BRD.
- The JDA abolishes the common law on jury directions based on the rule: s 44.
- JDA, ss 41-43
For an expert report to satisfy s 79, the witness’ opinion must be:
(1) relevant
(2) based “wholly or substantially” on the witness’ specialised knowledge
(3) based on assumed or provable facts
(4) supported by a explanation of the reasoning.
(Makita, Wilson)
What must a charge-sheet do?
- A charge-sheet is one way a criminal proceeding may be commenced.
- A charge-sheet is filed with the Magistrates’ Court and must be in writing, signed by the informant and comply with Sch 1 of CPA.
- The charge described must state the offence alleged to have been committed and contain particulars necessary to give reasonable information as to the nature of the charge.
- This includes the date, place and nature of how the offence was committed.
What’s the difference between the criminal jurisdictions of the Supreme Court, County Court and Magistrates’ Court?
MAGISTRATES’ COURT
- Summary offences, indictable offences charged summarily, committal proceedings and recover of fines
- There are limits on the sentences that the Magistrates’ Court may order. Max imprisonment = 2 years. Max fine = 500 penalty units (about $80,000).
COUNTY COURT
- All indictable offences with limited exceptions such as treason, murder and attempted murder.
SUPREME COURT
- Superior Court of record that can hear any offence, although it is not required to exercise jurisdiction if jurisdiction is also given to another court.
What is the task of the sentencing court?
A sentencing judge is required to only determine a sentence after instinctively synthesising all the relevant factors as to sentence (Markarian; Brown), which includes the purposes in s 5(1) of SA and the mandatory considerations in 5(2).
Where relevant, the judge will also have to consider any sentencing discount for a guilty plea and any non-parole period.
What possible sentences could a judge choose from?
- Imprisonment
- Community correction orders
- Fines
- Compensation or restitution
What happens at a committal hearing?
- Purposes of committal hearing: s 97
- Types of hearings: s 100
- Determination of committal proceeding: s 141(3), or accused elects to stand trial: s 143.
Where a witness (W) can made a prior inconsistent statement, how can counsel adduce that statement to prove the truth of its contents?
- Apply for leave under s 32 for W to use prior statement to revive memory. Court will consider s 192 factors + s 32(2) factors.
- If W denies the contents of the prior statement, seek leave under s 38 to XXN W on basis that W made a prior inconsistent statement. This enables counsel to ask leading questions (ss 38(2), 42).
- If leave is granted, put the prior inconsistent statement to W for a credibility purpose in accordance with ss 43 and 103.
- If W still denies the content of the prior statement, adduce prior statement through another witness (s 106). Leave is not required: s 106(2)(c).
- Once prior statement is in for a credibility purpose under s 106, the prior statement may be used to prove the truth of its contents: s 60.
What’s the difference between the civil jurisdictions of the Supreme Court, County Court and Magistrates’ Court?
Magistrates’ Court - max claims $100,000
County and Supreme Court - unlimited
What is probative value?
- Probative value (PV) means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
- In assessing PV, the Court must take the evidence at its highest and assume its credibility and reliability: IMM, Bauer.
What is unfair prejudice?
Unfair prejudice will arise where there is a real risk that the evidence will be misused by the jury in some unfair way or otherwise invite the jury to engage in illegitimate form of reasoning: Papakosmas, Dickman
Explain the following sentencing principles: Parsimony, proportionality, parity, and totality.
parsimony – the sentence must be no more severe than is necessary to meet the purposes of sentencing
proportionality – the overall punishment must be proportionate to the gravity of the offending behaviour
parity – similar sentences should be imposed for similar offences committed by offenders in similar circumstances
totality – where an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behaviour.
Section 2B of the Crimes Act 1958 (Vic) and s 2A of the Wrongs Act 1958 (Vic)
Offences under this Act are, unless the contrary
intention appears, deemed to be indictable
offences.
What is the maximum fine that the Magistrates’ Court may aware in respect of an indictable offence tried summarily?
$82,610 (500 penalty units x $165.22)
