ACA Exam Flashcards
The rule in Brown v Dunn
cannot rely on evidence without first putting it to the witness
Character evidence (accused)
- character evidence must be related to a key element of the crown’s theory
- handy test - probative value must outweigh the prejudicial effect
- cannot be used to determine guilt simply on basis the A is they “type” to commit crime
character evidence (witness)
may be XE on unrelated misconduct which has resulted or not resulted in conviction
must be used to show motive to seek favour with prosecution - motive to fabricate
previous inconsistent statement - adverse witness
- adverse is assuming a position opposite to the party that called them, not hostile
- conduct a voir dire to satisfy that the previous inconsistent statement, consider relevance, if it is substantially inconsistent, look to surrounding circmstances
- oral statements 9(1)
- conduct 9(1) voir dire
hostile witness
demonstrates an antagonistic attitude or hostile mind toward a party caling them
- common law right to corss-examine your own witness at large with leave of TJ
- PICS is reevant, admissible and cogent evidence of hostility
- inconsistency must be on vital matter and/or demeanour demonstrates hostility
leadinginconsistencies n chief
crown can raise PICS in chief, not oath helping
leading Q’s in chief
asking Q’s that do not suggest answer but are more direct can be appropriate, as in child witnesses
crown has discretin to relax it whenever considered necessary in the interestes of justice
refreshing memory in chief
- establish that there was a past reliable record - prepared personally or reviewed after
- establish that the record was made when the event was fresh in the witnesses mind
- that they did not recall at present
- vouch for accuracy in the present - must say they were being truthful at time of the record
9(2) prior inconsistent statement - Milgard
- past inconsistent video/audio/written statement
1. counsel advises judge of 9(2) application
2. jury leaves
3. counsel shows judge the inconsistency
4. if judge agrees, invides counsel to prove statement
5. witness is asked if he made the statement - yes, proven, no, more evidence needed
6. opposing counsel may cross about circumstances of previous statement - would it be impropoer for trial
7. jusge will decide whether statement was made and whether jusice is best attained by XE, jury recalled
permitted areas of 9(2) cross
- why the inconsistency
- KGB application or declaration of hostility
why trial testimony differs
circumstances in whicy the witness changed their earlier version
pretecting accused?
credibility
assess according to criteria appropriate to the witnesses mental development, understanding and ability to communicate
collateral facts rule
where new info emerges on cross of the accused which the crown could not have known about prior, and matter concerned with the merits of the case, the crown may call evidence in rebuttal
- not deteminiative, can’t be used
collateral facts bias exception
bias of a witness is always relevant and is not collateral
good faith cross
questions must be consistent with lawyer’s role as an officer of the court- suggestions counsel genuinely thinks possible
judicial notiice
- so notorious or genrally accepted as not to be the the subject of debate among reasonable people
- capable of immediate and accurate demonstration of accuracy
prior consistent statements
generally inadmissible and redundant
prior consistent statements of the accused
- can be used of evidence of reaction of the accused, relevant to credibility, can call IO that took statement
prior consistent statements (narrative)
excetion - can be used to advance the story fro offence to prosecution, can provide important background, relevant an d essential facts which describe the experience as victims of crime
prior consistent statement, recent fabrication
- if this is alleged, bring up prior consistent statements
re-examniation
explain and clarify testimony
- no new facts, confirmed to cross
- previous consistent statements can be used
twin myths
that someone who engaged in sexual activity before is more likely to engage in sexual activity alleged, or they are less worthy of belief
R v Brown
s.33.1 is unconstitution, no force and effect, violates s.7 and 11(d)
test for CSO
the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2
- sentence < 2 years
- no minimum jail time
- no serious personal injury, terrorism, crim organization by way of indictment > 10 years
NCR Test
- the person did commit the act AND
- was suffering from a mental disorder AND
- the person was unable to appreciate the nature and quality of the act OR
- did not know it was wrong
16(1) - IF THE accused has the capacity to rationally decide whether the act is wrong or not and the rational choice about whether to do it or not
276 TEST
- for previous sexualactivity
- written application
- heard in voie dire
278 production application
- production of records in possession of a third party
- made to TJcannot be disclosed unless their is a waiver frmo the C
- 60 days notice required
- produce to judge, then accused
- V has standing and can make submissions
- TJ decides on interests in justice baanced against competing factors
BILL C-51 CHANGES
- records includes records in defence ossession - any record for which there is a reasonable expectation of priavcy
cannot promote tewin myth purpose - sexua activity ncludes any communications made for a sexual purpose
- judge must view first and probative vaue must otweigh prejudicial effect AND relevant to issue at trial
factors under 278.92(3)
- interestes f justice and A right to full answer and defence
society’s interest in encouraging reporting of sexual offences
reasonable prospect the vidence will assist in a determination
need to remove discriminatory beliefs and bias
risk of prejudice,sympathy, hsotility of jury
C’s perosnal dignity and privacy
278.93 process
- application - in writing wih detailed particuars, at least 7days n advance or shorter if necessistated by the interests in trial
- if conditions met trial judge will hold a hearing
- in camera hearing, C has stadning
- TJ will decide if all or part of eveidence is admissible
- reasons must be on record or in writing and refer to 278.93 factors
