Chapter 8 Selected Issues in the Law of Evidence Flashcards
What are somethings the Judge will consider when deciding whether a statement is to be excluded?
- Physical, mental, phycological condition at the time the statement was made.
- Mental, Physical, Intellectual disability
- Nature of questions
- Threat, promise, Representation
What will the court weigh up when deciding if evidence had been improperly obtained?
- 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
What is visual ID evidence?
- 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
When would a statement be improperly obtained?
- Breach of BOR
- Obtained unfairly
3 rules broken
Improperly
Oppression
Reliability Rule
What is resemblance evidence?
Evidence where a witness shares features/attributes of a defendant rather than actual evidence
s45 allows the defence to challenge what type of prosecution evidence?
The reliability of the visual ID evidence
When should a formal ID be completed?
During an investigation or soon after arrest
What is the burden of proof, if a judge deems a statement was gained unreliably?
Balance of Probabilities
If a judge deems the statement as unreliable, when can a statement still be offered as evidence?
When it only pertains to the defendant physical, mental + phycological condition
If BOR have been given before K9 or taking a statement. What must happen after a person is K9’d?
BOR given again
What does oppression mean in this place?
Oppressive, violent, inhuman, degrading conduct.
Threat of conduct or treatment of the kind
Where there has been no formal I.D completed (no good reason) the evidence will be inadmissible unless the prosecution proves what?
Beyond reasonable doubt that the circumstances in which the I.D was made have produced a reliable I.D
What are 3 rule that make a defendants statement inadmissible?
- 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.
Generally, there are 2 burdens of proof, What are they and who do they relate to.
Beyond reasonable doubt - Prosecution
Balance of probabilities - Defendant
When is the burden of Proof placed on the defendant?
- For defences of insanity
- Specific statutory exceptions
- Regarding I.D evidence
How would you describe:
‘Beyond reasonable doubt’
and
‘on the balance of probabilities’
- A very high standard of proof where by the end of the trial you are sure they are guilty.
- More probable than not
There are 2 types of offences where the evidence of one witness is not enough.
What are they?
Perjury related offences
and
Treason
s125(1)
Prohibits a corroboration warning in cases involving ____________ complainants
Child
According to s45(3) what are the some instructions for formal I.D? (Parade)
- 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
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?
On the balance of probabilities the circumstances in which the ID was made was reliable.
What happens to evidence gained from an improperly obtained statement?
New evidence is deemed inadmissible also
What are some good reasons for not following a formal ID procedure
- 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
s45
When will a formal ID be unreliable?
- balance of probabilities defence proves it unreliable
- if no formal ID has been followed without good reason
