Chapter 5.2 - Evidence Act And Practice Notes

Question 1

Section 28 evidence act 2006

Answer 1

Exclusion of unreliable statements

This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if

The defendant against whom the statement is offered raises on the basis of an evidential foundation the issue of the reliability of the statement and raises the issue with a judge or prosecutions or

The judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue

Question 2

Exception to reliability rule section 28(3) evidence act 2006

Answer 2

Where the prosecution wishes to use the statement as evidence of the defendants physical mental or psychological condition

Where the prosecution offers the defendants statement only as evidence of whether the statement was made

Question 3

Assessment of reliability section 28(4) evidence act 2006

Factors which must be taken into account by a judge when deciding whether the prosecution has shown the circumstances in which the statement was taken has not affected its reliability

Answer 3

Any pertinent physical, mental, psychological condition of the defendant

Any pertinent characteristics of the defendant including mental, intellectual or physical disability

The nature of any questions put to the defendant and the manner and circumstances in which they were put.

The nature of any threat promise or representation made to the defendant or any other person

Question 4

Section 29 evidence act 2006

Answer 4

The oppression rule

Exclusion of statement influenced by oppression

The defendant against whom the statement is offered raises on the basis of an evidential foundation the issue of whether the statement was influenced by oppression and informs the judge of the grounds for raising the issue

The judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue

Question 5

Section 29(4) evidence act 2006

Factors judge may need to take into account

Answer 5

Any pertinent physical, mental or psychological condition of the defendant when the statement was made

Any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject to.

The nature of any questions put to the defendant and the manner and circumstances in which they were put.

Question 6

Definition of oppressive

Answer 6

Oppressive, violent, inhuman or degrading conduct towards the defendant or another person

A threat of conduct or treatment of that kind

Question 7

Section 30 evidence act 2006

Answer 7

Improperly obtained evidence

This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if

The defendant raises the issue of whether evidence was I improperly obtained or

The judge raises the issue of whether evidence was improperly obtained

The judge must
Find on the balance of probabilities whether or not evidence was improperly obtained
If the judge finds that evidence has been improperly obtained determine whether or not the exclusion of the evidence is proportionate to the offence

Question 8

Practice note 1

Answer 8

A member of the police may ask anyone any question from whom it is thought useful info may be obtained but must not suggest that it is compulsory to answer

Police may ask questions of anyone but must suggest that it is not compulsory to answer

Question 9

Practice note 2

Answer 9

When a member of police has sufficient evidence to charge a person with an offence or if they seek to question a person in custody the person must be cautioned before being invited to make a statement

Question 10

Practice note 3

Answer 10

Questions of a person in Custody must not amount to cross examination

Question 11

Practice note 4

Answer 11

Whenever a person questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained

Question 12

Practice note 5

Answer 12

Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video unless it is impracticable

If not videoed must be taped, written
Must be given opportunity to review the tape
If written must be asked if they want to sign