Chapter 8 Selected Issues in the Law of Evidence

Question 1

What are somethings the Judge will consider when deciding whether a statement is to be excluded?

Answer 1

• Physical, mental, phycological condition at the time the statement was made.
• Mental, Physical, Intellectual disability
• Nature of questions
• Threat, promise, Representation

Question 2

What will the court weigh up when deciding if evidence had been improperly obtained?

Answer 2

• Importance of any right breached
• nature of impropriety
• nature + quality of improperly gained evidence.
• the seriousness of the offence.
• any other investigatory techniques available but not used
• alternative remedies?
• impropriety was necessary to avoid apprehension physical danger
• the urgency in obtaining the improperly gained evidence

Question 3

What is visual ID evidence?

Answer 3

• An assertion based on what a person saw, to the effect the defendant was present or near a place where an offence occured
• An account (oral, written) of an account regarding the above

Question 4

When would a statement be improperly obtained?

Answer 4

• Breach of BOR
• Obtained unfairly

3 rules broken
Improperly
Oppression
Reliability Rule

Question 5

What is resemblance evidence?

Answer 5

Evidence where a witness shares features/attributes of a defendant rather than actual evidence

Question 6

s45 allows the defence to challenge what type of prosecution evidence?

Answer 6

The reliability of the visual ID evidence

Question 7

When should a formal ID be completed?

Answer 7

During an investigation or soon after arrest

Question 8

What is the burden of proof, if a judge deems a statement was gained unreliably?

Answer 8

Balance of Probabilities

Question 9

If a judge deems the statement as unreliable, when can a statement still be offered as evidence?

Answer 9

When it only pertains to the defendant physical, mental + phycological condition

Question 10

If BOR have been given before K9 or taking a statement. What must happen after a person is K9’d?

Answer 10

BOR given again

Question 11

What does oppression mean in this place?

Answer 11

Oppressive, violent, inhuman, degrading conduct.

Threat of conduct or treatment of the kind

Question 12

Where there has been no formal I.D completed (no good reason) the evidence will be inadmissible unless the prosecution proves what?

Answer 12

Beyond reasonable doubt that the circumstances in which the I.D was made have produced a reliable I.D

Question 13

What are 3 rule that make a defendants statement inadmissible?

Answer 13

• RELIABILITY RULE
  balance of probabilities the statement was not taken in a way to affect reliability.
• OPRESSION RULE
  whether a statement was influenced by oppression and informs (beyond reasonable doubt)
• IMPROPERLY OBTAINED EVIDENCE RULE
  whether evidence was improperly obtained on the balance of probabilities.

Question 14

Generally, there are 2 burdens of proof, What are they and who do they relate to.

Answer 14

Beyond reasonable doubt - Prosecution

Balance of probabilities - Defendant

Question 15

When is the burden of Proof placed on the defendant?

Answer 15

• For defences of insanity
• Specific statutory exceptions
• Regarding I.D evidence

Question 16

How would you describe:

‘Beyond reasonable doubt’
and
‘on the balance of probabilities’

Answer 16

• A very high standard of proof where by the end of the trial you are sure they are guilty.
• More probable than not

Question 17

There are 2 types of offences where the evidence of one witness is not enough.

What are they?

Answer 17

Perjury related offences
and
Treason

Question 18

s125(1)

Prohibits a corroboration warning in cases involving ____________ complainants

Answer 18

Child

Question 19

According to s45(3) what are the some instructions for formal I.D? (Parade)

Answer 19

• Sgt or above
• O/C case not present
• 7 people similar age, race, appearance etc
• Not Police
• Suspects should be told right to refuse to participate.
• Witness cant see suspect before
• witness not to be rushed Q’s
• Tell witness suspect may or may not be present

Question 20

Voice ID is the assertion of a voice heard eg: recording on phone etc is the defendant. The prosecution has to prove what in order for it to be reliable evidence?

Answer 20

On the balance of probabilities the circumstances in which the ID was made was reliable.

Question 21

What happens to evidence gained from an improperly obtained statement?

Answer 21

New evidence is deemed inadmissible also

Question 22

What are some good reasons for not following a formal ID procedure

Answer 22

• refusal of suspect to take part and doesnt have a photo
• singular appearance of suspect cannot be disguised.
• substantial change in appearance
• could not reasonably anticipate ID an issue.
• ID pointed out to officer at scene.
• after chance meeting of suspect and witness

Question 23

s45

When will a formal ID be unreliable?

Answer 23

• balance of probabilities defence proves it unreliable

- if no formal ID has been followed without good reason