Chapter 8: Selected issues in the Law of Evidence Flashcards
What is the Woolmington principal?
The fundamental principle in criminal law is the presumption of innocence known as the Woolmington Principle.
The principal establishes that, subject to specific Statutory exemptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence
The principle is regarded as a fundamental tenet of the criminal law.
What is the fundamental principle in criminal law
The presumption of innocence no one is the Woolmington principal
What is the evidential burden on the defence
Self defence cannot be left to the jury or considered by the judge unless it is been made a ‘live issue’ by the defence. However, once it has made a ‘live issue’, it is then up to the prosecution to destroy the evidence, as they retain the Burden of proof
What is always the ultimate question for the jury?
has the prosecution proved its case?
What are the exemptions to the Woolmington Principle
Defence of insanity.
And where there exists specific statutory exemptions.
Law has developed in such a way as to include offences where Woolmington does not apply.
These are known as public welfare regulatory offences.
What is the purpose of public welfare regulatory offences
The purpose is to regulate every day conduct having a tendency to endanger the public or sections of the public, Rather than to punish individuals for immoral or otherwise blameworthy conduct (examples maritime, and aviation safety)
In these cases the courts have developed a no-fault defence, with a burden of proof on the defendant.
Where a legal burden is on the prosecution they must prove the offence ‘beyond reasonable doubt’.
Any element which the defence bears the burden of proving need only be proved on the what?
Balance of probabilities
Beyond reasonable doubt means
At the end of the case, you are sure the accused is guilty
It is Not enough for the crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty
What is reasonable doubt
A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you’ve given careful and impartial consideration to all of the evidence.
What is balance of probabilities
Where the 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’
Can one witness testimony unsupported by any other evidence be sufficient proof case
Yes. Where a court is satisfied that it is reliable and accurate and provides proof to the required standard.
It does not always follow that the court will act upon the evidence of one witness, it simply means that it may do so when sufficiently satisfied as to its cogency.
What are two types of offences that must have corroboration evidence
Perjury and related offences, and treason
Does the judge have to warn Jury’s about relying on uncorroborated evidence.
There is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or direction relating to the absence of corroboration.
However, for perjury and treason the judge may warn the jury about unreliable evidence, if the judge is of the opinion that Inc evidence may be unreliable, he or she may warn the jury of the need for caution.
For some types of evidence, such as hearsay evidence the judge must consider whether to give such a warning at jury trials.
Section 125 prohibits a corroboration warning in cases involving child complainant‘s where the warning would not have been given had the complainant been an adult.
Why are there restrictions on both visual and voice identification evidence
These restrictions are a reflection of the inherent unreliability of both eye witness and ear witness identification. Our memories are prone to incompleteness, distortion and forgetfulness.
Visual identification evidence of a person alleged to have committed an offence, and a formal procedure has been followed or there is a good reason for not following a formal procedure is admissible unless
The defendant proves on the balance of probabilities that the evidence is unreliable
If a formal identification procedure is not followed and there is no good reason for not following the procedure, that evidence is inadmissible in a criminal proceedings unless the prosecution proves
Beyond reasonable doubt that the circumstances in which the identification was made has produced a reliable identification
What is a formal procedure for identification purposes
It is observed as soon as practicable after the alleged offence is reported to an officer, and the suspect is compared to no fewer than seven other persons who are similar in appearance to the suspect
What is a good reason for not following a formal identification procedure
A refusal of the suspect to take part in the procedure that is, by refusing to take part in the parade or other procedure, Or to prevent a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person.
The singular appearance of the suspect, being of a nature that cannot be disguised so that the person is similar in appearance to those with who the person is to be compared.
A substantial change in the appearance of the suspect after the alleged offence occurred and before it was practical to hold a formal procedure
No officer involved in the investigation all the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at trial
If identification of a person alleged have committed an offence has been made to an officer soon after the offence occurred in the course of that officers initial investigation
If identification of a person alleged to have committed an offence has been made to an officer of enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence
A visual identification process must be conducted by who
Officers of an enforcement agency, Which includes some agencies other than the police
What is the intention of section 45, admissibility of visual identification evidence
It is intended to prevent dock identification, where a witness identifies the defendant in the court room for the first time.
Dock Identification does not fulfil the requirements of a formal procedure. However, If there was a good reason why a formal procedure was not followed then dock identification could be admissible unless the defendant can prove that the identification is unreliable.
What is the focus of the act with regards to visual identification
The focus under the act is on whether or not a formal procedure was undertaken.
How the procedure is utilised is the key, not whether one method is better than another.
As identification evidence is inherently unreliable, care must be taken to
Illicit the most reliable evidence possible by means of fair and transparent procedures.
When should a formal procedure take place with regards to identification
The procedure should take place during the investigation or soon after an arrest. This may involve consideration of means and resources, but a lack of resources cannot be taken too far.
What is the purpose of section 43 with regards to visual identification.
The purpose is to ensure the visual identification evidence is as reliable as possible.
Who should conduct an identification parade
Any identification parade should be conducted by a staff member at the level of Sgt or senior Sergeant. The officer in charge of the case can be present, but must not take part in the proceedings
With regards to formal procedures the seven people chosen to compare against the defendant must be
Same race, similar age, height, general appearance and social grouping is the suspect, and not police members.
The guiding principle in arranging a procedure for visual identification is whether it will
Avoid any material risk of predisposing the witness to identify the defendant
What is the definition of voice identification evidence
Evidence that is an assertion by a person to the effect that a voice, whether hear first hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of the offence
Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves
On the balance of probabilities that the circumstances in which the identification was made has produced a reliable identification.
Evidence offered by the prosecution of a statement made by defendant is not admissible against the defendant if it is excluded under these sections
The reliability rule
The oppression rule, and
The improperly obtained evidence rule
What is a statement
A statement is a spoken or written assertion of any matter, or non-verbal conduct that is intended as an assertion of any matter.
Reliability relates to the accuracy and soundness of the statement - the focus of the courts appears to be on the circumstances and likely reliability, rather than an assessment of
Actual reliability.
What does oppression mean
Oppressive, violent, inhumane, or degrading conduct towards, or treatment of, the defendant or another person, or a threat of conduct or treatment of that kind
The oppression rule has been described by the court of appeal is the
Most serious ground of objection to the admissibility of a defendant statement.
