Chapter 8: Selected Issues in the Law of Evidence Flashcards
What is the burden of proof ?
Fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington Principle”.
Who does the burden of proof lie with?
Clearly lies with prosecution in relation to all elements of the offence.
Prosecution must prove the case beyond reasonable doubt
The ultimate question for a jury is?
Has the prosecution proved its case?
Beyond Reasonable Doubt?
Proof beyond reasonable doubt is a very high standard of proof which the crown will have met only if at the end of the case you are sure the accused is guilty.
Reasonable Doubt?
A honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence
Balance of probabilities?
Defence is required to prove a particular element, such as insanity, on the balance of probability, it must simply show that it is more probable than not.
Corroboration
In general, one witness 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.
However two types of offence Perjury and related offences and Treason in which unsupported evidence of one witness is insufficient to support a conviction.
In these instances corroboration is required as a matter of law.
Visual Identification evidence is defined in the 06 Act as?
Assertion by a person based wholly or partly on what the person saw, to the effect that a defendant was present at or near a place where an offence was committed at or near a place An account (oral or written) of whats described above
S45 Admissibility of visual identification evidence
Formal Procedure for obtaining visual identification evidence -
a) Observed ASAP after the alleged offence
b) in which the suspect is compared to no fewer than 7 other persons in similar appearance
c) no indication is given to the person making the ID as to who among the persons is the suspect
d) person who is making the ID informed that the suspect may or may not be among the persons in the procedure
e) Written record of procedure is sworn to be true and complete by the officer who conducted the procedure
f) subject of pictorial record of what the witness looked at is prepared and certified to be true and complete
g) complies with any further requirements under S201
S45 continued - Circumstances are good reasons for NOT following a formal procedure?
a) a refusal of suspect to take part in the procedure
b) singular appearance of the suspect (that cannot be disguised)
c) a substantial change in appearance of suspect after alleged offence occurred
d) No officer involved in the investigation could reasonably anticipate that ID would be an issue.
e) ID of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officers initial investigation.
f) ID of person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the ID and the person alleged to have committed the offence.
S46 Admissibility of Voice ID Evidence
Voice ID offered by prosecution in a criminal proceeding is inadmissible unless the prosecution proves on a balance of probabilities that the circumstances in which the ID was made produced a reliable ID.
Evidence offered by the prosecution of a statement made by a defendant is not admissible against the defendant if it is excluded under S28, 29 or 30 These sections are?
S28 - Reliability Rule
S29 - Oppression rule
S30 - Improperly obtained evidence rule
S28 Exclusion of unreliable statements
The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was obtained was made were not likely to have adversely affected its reliability.
Judge to take into account:
Any pertinent physical, mental conditions when statement was made
Any pertinent characteristics of the defendant including any mental intellectual or physical disability to which the defendant is subject
Nature of the questions put to the defendant and the manner of the circumstances in which they were put.
Nature of any threat, promis or representation made to defendant
True or False ? Evidence offered by the prosecution of a statement made by a defendant is not admissible against a co-defendant ?
True.
Exception to the Reliability Rule?
Where prosecution wishes to use the statement as evidence of the defendants physical / mental condition at the time the statement was made.
Where the prosecution offers the defendants statement only as evidence of whether a statement was made.
