5 CH 8 - Law Of Evidence

Question 1

What is the ‘Woolmingham Principle?’ (2)

Answer 1

• The presumption of innocence
• Burden of proof lies with the prosecution

Question 2

With regard to the Woolmington Principle and the burden of proof, what is the ultimate question for the jury?

Answer 2

“Has the prosecution proved their case?”

Question 3

What are the offences called where the Woolmington Principle is seen simply to not apply?

Answer 3

• Public Reglatory Welfare Offences
• to regulate everyday conduct having a tendency to endanger the public rather rather than to punish individuals- speeding tickets/parking tickets
• prosecution does not have to prove mens rea just the actus reus
• Defendant has an onus on balance of probabailities that he had no fault

Question 4

What is the standard of proof on a defendant where the burden lies with them?

eg Insanity defence

Answer 4

On the balance of probablilities (More probable that not)

Question 5

What is ‘Reasonable Doubt? HUG CA

R v Peato

Answer 5

• An honest and reasonable
• uncertainty
• left in your mind about the guilt of an accused
• after careful and impartial consideration of
• all the evidence

Question 6

What did the decision say about the standard of proof of ‘Beyond reasonable doubt’ in the R v Wanhalla direction?

Answer 6

“…at the end of the case you are sure the accused is guilty.”

Question 7

Can the court accept the testimony of one witness without corroborating evidence?

Answer 7

Yes if sufficiently satisfied with its cogency

Question 8

What two types of offences require corroborating evidence and more than just the testimony of one witness?

PT

Answer 8

• Perjury and related offences
• Treason (some other independent evidence is required)

Question 9

When it comes to reliability of eyewitness evidence what are our memories prone to? I,D,F

Answer 9

• Incomplete
• Distort
• Forget

Question 10

s.45 Admissibility of visual ID EvidenceAccording to s.45(4)

What are “good reasons” for not following formal proceedure for gathering ID evidence?

RSCNIC

Answer 10

• Refusal by subject to take part in ID proceedure
• Singular appearance of person
• Substantial change in appearance
• Did Not anticipate ID would be an issue at trial
• ID made to officer immediately after event
• Chance meeting ID

Question 11

s.45 Admissibility of visual ID Evidences.45(3) outlines what is ‘formal procedure’ for obtaining visual identification evidence.

What are the seven points? (7) ACNIWSC

Answer 11

• ASAP after offence
• Compare to 7 or more persons
• No indication to be given to witness
• Inform witness that person may or may not be in montage
• Written record
• Procedure (sworn true) pictorial record of montage (certified true)
• Comply with further requirements of s.201

Question 12

What was said in relation to ‘Recognition ID Evidence’ in Harney v R?

Answer 12

Witness recognising a person is not necessarily good reason to not do formal ID procedure. Unless person was significantly known to person prior to alleged offending. Formal procedure may assist defence in highlighting element of unreliable ID Each case need to be gauged

Question 13

s.46 EA2006 relates to admissibility of voice identification evidence.

What is the standard of proof required for this type of evidence to be admissable?

Answer 13

Balance of probabilities (probably reliable)

Question 14

What three sections in the Evidence Act 2006 can exclude a defendants statment

Clue: ROI 28

Answer 14

• Reliability Rule (s.28)
• Oppression Rule (s.29)
• Improperly Obtained Evidence Rule (s.30)

Question 15

The Reliability Rule What are the two exceptions to the reliability rule that allow statements to be admitted?

SA

Answer 15

• Producing statement to show physical, mental and psychological condition of defendant.
• Offers to show only that statement was actually made

Question 16

The Reliability & Oppression Rules.28(4)

What four factors must the judge consider / be satisfied when considering to apply the exception to the reliability rule or the Oppression rule?

and to what standard of proof? PCQT B

Answer 16

• Physical, mental, psychological state of defendant at time statement taken
• Characteristics of defendant (mental, intellectual, physical disabilities)
• Nature of question/manner they were put to defendant nature of any
• threat, promise, representation
• “Balance of Probabilities”

Question 17

Under s.29(5) what does the term ‘Oppression’ mean.

ODT

Answer 17

• Opressive, violent, inhuman OR
• Degrading conduct towards or treatment of the defendant or another person
• A threat of the same

Question 18

From whose perspective is ‘Oppression’ to be judged when considering the factors in s.29?

Answer 18

From the perspective of the defendant. (The state of mind of the oppressor is irrelevant, they may be unaware, therefore oppression does not have to be calculated)

Question 19

S.30(5) What is the definition of ‘Improperly Obtained?’

B U S

Answer 19

Evidence obtained:

• Breach of s3 BORA 1990 or
• in the case of a statement made by defendant that would be inadmissable unfairly obtained if it was offered by prosecution or
• unfairly

Question 20

Improperly Obtained Evidence

What was stated about Improperly Obtained evidence in

R v Te Kira? L V OE

Answer 20

“…That there must be a real and substantive link between the violation and the obtaining of evidence.”

Question 21

s.45 Admissibility of visual ID Evidences. 45(3) ID Procedure

What is required to establish a true record for the procedure:- SC

Answer 21

• Procedure (sworn true)
• pictorial record of montage (certified true)