Chapter 8 - Evidence Flashcards
What is the Woolmington principle?
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
What is evidential burden?
Evidential burden is the obligation to produce evidence to properly raise an issue at trial, called a “live issue”. Failure to satisfy the evidential burden means that an issue cannot be raised at a court of law.
What are some exceptions to the Woolmington principle?
- Defence of insanity.
- Specific statutory requirements.
- Evidence Act - regarding identification evidence.
4.public welfare regulatory offences - The purpose of such offences is to regulate everyday conduct having a
tendency to endanger the public or sections of the public, rather than to
punish individuals for immoral or otherwise blameworthy conduct (e.g.
offences related to maritime and aviation safety). In these cases the courts
have developed a no-fault defence, with the burden of proof on the
defendant.
What are the standards of proof?
- Beyond Reasonable Doubt - Prosecution - very high standard of the proof which the Crown will have met only if, at the end of the case, you are sure the accused is guilty.
- Balance of Probabilities -
Defence - is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.
What is Corroboration evidence and the conditions around it for the judge?
In general, one witness’s testimony, unsupported by any other evidence,
will suffice to prove a case where the court is satisfied that it is reliable and
accurate and provides proof to the required standard.
Conditions - Judge must give a warning to jury where there is hearsay, uncorroborated evidence, unreliable evidence.
In cases of perjury and treason, uncorroborated accounts is insufficient to support a conviction.
When should a formal ID procedure not be conducted?
(a) a refusal of the suspect to take part in the procedure.
(b) the singular appearance of the suspect.
(c) a substantial change in the appearance of the suspect after the alleged
offence.
d) Couldn’t reasonably anticipate that identification would bean issue at the trial of the defendant.
e)ID made to an officer soon after the offence and in course of initial investigation.
f)Chance meeting.
What is obscure about admissibility of voice identification evidence?
The burden of proof imposed on the prosecution under s 46 is proof of reliability on the balance of probabilities. Therefore, the prosecution only have to prove that the voice identification evidence is probably reliable. This
is rather strange, given that despite the concern that voice identification is
less reliable than visual identification, the standard under s 45(2) is proof
beyond reasonable doubt, a significantly higher standard than under s 46.
What are the guidelines around Defendant statements?
Evidence offered by the prosecution of a statement made by a defendant is
not admissible against a co-defendant. A “statement” is a spoken or written
assertion of any matter, or non-verbal conduct that is intended as an
assertion of any matter (s 4 of the Evidence Act 2006).
Evidence offered by the prosecution of a statement made by a defendant is
not admissible against that defendant if it is excluded under:
-the reliability rule (s 28)
- the oppression rule (s 29),
- the improperly obtained evidence rule (s 30)
What is the reliability rule (S.28)?
Exclusion of unreliable statements:
Judge to determine if statement is reliable and outline issues. Balance of probabilities may exclude statement. Does not have effect to exclude a statement made by a
defendant if the statement is offered only as evidence of the physical, mental, or
psychological condition of the defendant at the time.
What are some of the reasons a statement is unreliable?
(a) any pertinent physical, mental, or psychological condition of the defendant
when the statement was made (whether apparent or not):
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject
(whether apparent or not):
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d) the nature of any threat, promise, or representation made to the defendant
or any other person.
What are the exceptions to the reliability rule?
A)Where the prosecution wishes to use the statement as evidence of the
defendant’s “physical, mental, or psychological condition … at the time
the statement was made”, for example where the prosecution attempt to
prove that the defendant was suffering from psychosis and the statement
describes to the police aliens said by the defendant to be present in the
police station interview room.
B)Where the prosecution offers the defendant’s statement “only … as
evidence of whether the statement was made”.
What is the oppression rule?
The oppression rule: s 29
Exclusion of statements influenced by oppression.
Can be raised by the Defendant or the judge.
The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
In this section, oppression means—
(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of,
the defendant or another person; or
(b) a threat of conduct or treatment of that kind.
Oppression is to be judged from the perspective of the defendant. The state
of mind of the alleged oppressor is irrelevant.
What is improperly obtained evidence?
criminal proceeding in which the prosecution offers or proposes to offer evidence.
The Defendant can raise issues whether that evidence was properly obtained. The judge can also raise issue.
The Judge must exclude any improperly obtained evidence if the Judge determines that its exclusion is proportionate to the
impropriety.
What must a judge do if evidence is suggested to be improperly obtained?
(a) find, on the balance of probabilities, whether or not the evidence was
improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to
the impropriety and takes proper account of the need for an effective and
credible system of justice.
What considerations does a judge take into account surrounding improperly obtained evidence?
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless,
or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
