8 Law Of Evidence Flashcards
What is the Burden of Proof?
Where does it lie?
The presumption of innocence (Woolmington’s Principle)
With the prosecution
What is the “Evidential Burden” on the defence?
Defence obligation to prove an explanation without which the prosecution has proved its case. “The obligation to raise an issue at trial”
Are there exceptions to Woolmingtons Principle?
Yes. Insanity, suicide pacts, Identification evidence s45(1), Maritime and Aviation safety are examples of the reverse burden of proof.
What is the “Standard of Proof”?
The standard required to discharge:
Prosecution - beyond reasonable doubt
Defence - balance of probabilities
Describe “beyond reasonable doubt”
“A very high standard of proof” met if the jury is sure the defendant is guilty.
What is the balance of probabilities?
“That it was more probable than not”
Is one persons testimony unsupported by other evidence sufficient to prove a case?
Exceptions (2)
Yes. There are exceptions: Perjury and Treason.
What is the definition of Identification Evidence as it pertains to s45 Evidence Act? (4)
- Saw or heard
- Person alleged to have committed offence
- At or near place
- Commission of offence (or written or oral account of above)
s45(2) Is an informal identification process admissible?
Only if there is a GOOD REASON (s45(4)) for not following a formal procedure. Otherwise if no good reason, prosecution must prove beyond reasonable doubt circumstances in which it was made produced reliable identification.
How many images in a formal ID?
8
s45(4) What good reasons are there for NOT following formal ID? (6)
What is admissibility of identification evidence if a good reason is obtained?
- Suspect refuses and no photo available.
- Singular appearance
- Substantial changes in appearance (in offence)
- ID was not (reasonably expected to be) in question
- ID made shortly after offence (ie to Police during initial investigation)
- Identification by chance
If prosecution can find good reason then evidence admissible under s45(1). Otherwise needs to prove beyond reasonable doubt that the ID evidence is reliable.
Who can conduct an ID procedure?
“Officers of an enforcement agency” (Customs, MPI…)
Sgt or above. O/C case can be present but not take part in proceedings
Who can be the subject/target of identification evidence pursuant to s45?
Only to a person alleged to have committed an offence.
What is the purpose of s45 (what is it intended to prevent)?
To prevent dock identification as the first time identified. (Unreliable)
What constitutes a formal ID procedure (8)
- ASAP after offence
- Eight people, similar appearance
- Police staff not to be used
- No coaching witness. Witness not to see suspect before placed into parade
- Written record of procedure followed sworn for Judge/Defendant (not jury) by officer conducting
- Copy of pictorial record certified for Judge/Defendant (not jury)
- Different participants for different parades
- Suspect MUST be advised: Not compulsory; can have lawyer present