Crim test summarised Flashcards
What are the factors mags might consider when deciding whether to retain jurisdiction or not?
Mags:
-Few factual and legal complications
-few procedural complications
-mags may try a case and still commit to CC for sentencing
CC:
-Outcome would be in excess of court’s powers for offence(s) concerned
-Unusual legal, procedural or factual complexity requires CC trial
What is the test to exclude identification evidence?
s78
has there been a significant prejudice to the accused?
If so would the admission be so adverse to the fairness of the proceedings that the court ought not to admit it?
What is test to exclude confession evidence?
s76
‘Oppression’ or
Anything said or done which is likely to render unreliable any confession
Oppression = torture, inhuman or degrading treatment, use or threat of violence
‘Unreliable’ = cannot be relied upon as being the truth
Test to stay proceedings (abuse of process)
1.Impossible to give accused a fair trial; and
2. where it offends court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case or will undermine public confidence in the criminal justice system and bring it into disrepute
Application for dismissal? When can it be made?
Can only be made:
-MC send case to CC
-D has been served with evidence relating to offence, and
- before D has been arraigned
Judge should stop the case:
-where there is no evidence the crime has been committed by D, or
-P evidence, taken at highest, is such that properly directed jury could not convict
Excluding a doc brought under s117 (hearsay created or received in trade, business, profession, employment)?
Can exclude a doc in line with s78 if statement’s reliability is doubtful in view of:
a) it contents
b) Source of info contained in it
c) way in which or circumstances in which information was supplied or received; or
d) way in which or circumstances doc concerned was created or received
What factors are considered in allowing admission of hearsay under interests of justice?
Probative value of statement
Other evidence on matter
Importance
Circumstances evidence made
Reliability of maker and evidence
Difficulty in challenging statement
When is notice required to introduce hearsay?
Procedure?
Time limits?
Opposing intro of evidence?
Where introducing hearsay under:
-Interests of justice
-Witness unavailable
-doc prepared in contemplation of criminal proceedings
-multiple hearsay
Served on court and every other party. Must:
-identify hearsay evidence
-set out facts relied that make evidence admissible
-Explain how facts proved if disputed
-explain why evidence admissible
P must serve notice not more than:
a) 20 business days after NG plea in MC
b) 10 business days after NG plea in CC
D must serve notice ASAP
Opposing:
serve app on court and every other party ASAP and not more than 10 business days after either:
-service of notice to introduce evidence
-service of evidence objected to
-D pleads NG
App must explain:
-which facts (if any) party disputes
-Why evidence is not admissible
-any other objection
Submission of no case to answer?
1) no evidence that crime alleged has been committed by D
2) some evidence but of tenuous character (weak, vague, inconsistent with other evidence)
Judge consider whether P evidence, taken as its highest, is such that a jury could not properly convict
Bad character gateways for D?
Agreement (leave of court not required)
Blurts it out (not required)
Context (required)
Done it before (propensity - required)
E done it (required)
False impression (required)
Gets at a witness (required)
Does d’s history establish propensity?
Does propensity make it more likely D committed offence charged?
Where previous offences are of same description or category, would it be unjust to rely on them?
In any event, would proceedings be unfair if evidence were to be admitted?
Non-defendant bad character?
a) important explanatory evidence
b) has substantial probative value in relation to matter which is in issue in proceedings and is of substantial importance in case as a whole, or
c) if all parties agree to evidence being admissible
Bad character
What are 3 questions asked regarding gateway d?
What can be considered alongside?
1) Does d’s history establish propensity to commit offences of the kind charged?
2) Does propensity make it more likely D committed offence charged?
3) Where previous offences are of same description or category, would it be unjust to rely on them? and;
In any event, would proceedings be unfair if evidence were to be admitted?
s101(3) - ‘must exclude’ see another flashcard
s78 - ‘may exclude’
Bad character:
What gateways does s101(3) apply to? What is it?
d and g
The court MUST NOT admit evidence under subsection d and g, if it appears that the admission of the evidence would have such an adverse effect ob the fairness of the proceedings that the court ought not to admit it
Bad character:
What are requirements of gateway c?
Important explanatory evidence if
a) without it, the court or jury would find it impossible or difficult property to understand other evidence in case, and
(b) it value for understanding case as a whole is substantial
Bad character:
What are the requirements of gateway e?
What does not apply to this gateway?
Substantial probative value in relation to important matter between defendant and co-defendant
Evidence which is admissible only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence
Only evidence -
a) which is to be (or has been) adduced by the co-defendant, or
b) which a witness is invited to give (or has given) in cross-examination by the co-defendant, is admissible under e
s78 (not p evidence)
