Emily Flashcards
What is the definition of direct evidence
This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced, eg: an eyewitness who states that she saw the defendant stab the complainant with a knife
What is the definition of Circumstantial Evidence?
This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn. Eg: the defendant was seen in the vicinity of the scene of the crime
Define Corroboration
It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.
What actions need to be taken where a police witness wants to refer to their notebooks
- ask the courts permission
- introduce the material properly
- seal off other entries
- refresh only, you cannot read the whole entry unless you have permission to read the notes of the interview
What does it mean by the term of hearing in chambers?
Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. It’s where a jury will be excluded from the courtroom for the duration of the hearing
What are the four key things an officer must check prior to serving a witness summons?
- whether they are allowed to give evidence
- whether they are required to give evidence
- whether they can refuse to give evidence and
- what type of witness they will be
How can evidence be given?
- in the ordinary way, orally and present in the courtroom
- in an alternate way, such as a video link
- in any other way provided for by the evidence act or any other relevant enactment
List 3 reasons why leading questions are not permitted
- there is a natural tendency for people to agree with suggestions put to them by saying yes, even if those suggestions do not precisely accord with their own view of what happened.
- counsel asking leading questions of their own witnesses can more easily elicit answers which they want to receive
- there is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise between counsel and the witness
Define standard of proof
In general, where the legal burden is on the prosecution it must be discharged Beyond reasonable doubt.
Any element which the defence bears burden of proof need only be proved on the balance of probabilities
Evidential burden on the defence
Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence.
and once it is made a live issue then the prosecution must destroy the defence, because the burden of proof lies with the prosecution.
State 2 of 3 examples from S35(2) where a previous consistent statement is admissible
(a) is necessary to respond to a challenge to the witness’s veracity or accuracy.
(b) integral to the matters before the court
(c) the mere fact that a complaint was made
Section 25 governs the admissibility of expert opinion evidence
In order to comply with section 25 the opinion must (3 points)
- be that of an expert
- comprise expert evidence and
- offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding
Section 16(1) circumstances, in relation to a statement made by a person who is not a witness include
- the nature of the statement and
- the contents of the statement and
- the circumstances that relate to the making of the statement and
- any circumstances that relate to the veracity of the person and
- any circumstances that relate to the accuracy of the observation of the person
Four occasions where evidence in rebuttal is allowed to be used by the Prosecution
- relates to a purely formal matter
- relates to a matter arising out of the conduct of the defence, the relevance of which could not have reasonably been foreseen
- was not available or admissible before the prosecution case was closed or
- is required to be admitted in the interests of justice for any other reason
What are the conditions and limitations for the prosecutor in re examination
After Cross examination, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross examination, but may not be questioned on any other matter, except with permission of the judge.
In order to be admissible under S24, the statement of opinion must fulfil two basic criteria
- the opinion must be the only way in which to effectively communicate the information to the fact finder
- the witness must be stating an opinion from something personally perceived
Judicial direction section 122(2) (may be unreliable)
A judge must give a warning to the jury whenever the following evidence is given
(a) hearsay evidence
(b) statement by the defendant, if it is the only evidence implicating the defendant
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant
(d) statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station or another place of detention
(e) evidence about the conduct of the defendant if that conducted is alleged to have occurred more than 10 years previously
Who can comment on the defendants right to silence at trial
The judge
The defendant or
The defendant’s counsel
Define weight of evidence
The weight of evidence is it’s value in relation to the facts in issue. The value will depend on a wide range of factors, such as:
- the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
- the extent to which it is supported or contradicted by other evidence produced
- the veracity of the witness
The weight is the degree of probative force that can be accorded to the evidence
Define relevance
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
S7 - Examples of relevant evidence that may not be admissible
The fact that evidence is relevant does not necessarily mean that it will be admitted into evidence.
It may be inadmissible or excluded under this act or any other act.
Inadmissibility or exclusion will usually be due to lack of reliability, fairness, public interest
Propensity evidence done not include as outlined in S40(1)(b)
- evidence of an act or omission that is one of the elements of the offence for which the person is being tried
- evidence that is solely or mainly about veracity
What was held in R v WANHALLA regarding reasonable doubt and what should the jury by told
Reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence
What are the conditions that are required when you seek like to refresh you memory?
- the leave from the judge must be obtained
- the document must be shown to every other party in the proceeding
- section 90(5) requires that the document to have been made or adopted by a witness at a time when his or her memory was fresh.
