Entrance exam Flashcards

Question 1

Q

Corroboration

Answer

A

Originally, certain ‘unreliable evidence’ required corroboration. Now abolished.
Also, originally, the judge was required to warn juries of dangers of certain categories of uncorroborated evidence. Now abolished.
Trial judge retains general power/obligation to warn jury about dangers of uncorroborated evidence, including that it would be dangerous to convict.

Question 2

Q

List of unreliable evidence

Answer

A

Hearsay evidence
Admissions
Identification evidence
Evidence affected by age, ill health, injury
Evidence in criminal proceeding by witness who may have been criminally concerned
Prison informer
Oral evidence of unsigned questioning by investigating official
Evidence adduced by or on behalf of someone in a proceeding against the estate of a dead person (about which the dead person could themselves have given evidence if they were alive)
Any other evidence that “may be unreliable”

Question 3

Q

Good reason for not giving unreliable evidence warning

Answer

A

 undisputed
 Not important
 Unlikely to be unreliable
 Supports the defence
 Hearsay evidence of the accused and the accused has not testified in the trial
 Comes from the co-accused
 Lack of enthusiasm in the request for a warning and the absence of any request or reminder at the conclusion of the summing up when the direction had not been given

Question 4

Q

Process for unreliable evidence

Answer

A

Party makes application for warning or direction due to evidence being unreliable
Judge must give warning
Must contain
-may be unreliable
-reasons
-need for caution
Unless there is a good reason (burden is on person against giving the warning)

Question 5

Q

Children’s evidence

Answer

A

• Judge must not
o Warn that children are unreliable per se
o Warn about unreliability of child based on age
• Judge may still
o Warn jury about reliability of a particular child’s evidence and reasons why
o Party must request
o Party must satisfy the court that there are particular circumstances that affect reliability that warrant warning (or giving of information of circumstances)
• Content
o No requirement as to content unlike 165(2)

Question 6

Q

Delay in prosecution

Answer

A

• If court satisfied that defendant has suffered a significant forensic disadvantage (SFD) because of delay (CRITERIA)
o SFD not established by delay only
o Delay includes delay between alleged offence and its being reported.
• Court MUST inform jury of the nature of disadvantage and the need to take it into account when considering evidence (MANDATORY WARNING)
• Application by defendant (APPLICATION)
o No obligation on judge unless requested
o The possibility of miscarriage means judge should ask in appropriate circumstances whether a warning is requested.
• Court does not have to if there are good reasons not to. (PROVISO)
• Particular words not necessary (CONTENT)
• This section covers the field in respect of delay (COVERING THE FIELD)

Question 7

Q

Unfavourable witnesses

Answer

A

• With court’s leave, may switch to cross examination about
o Unfavourable evidence (does not permit cross exam generally)
o A matter which they should know about but aren’t making a genuine attempt to give
o Whether they have made a prior inconsistent statement
• With court’s leave, may question only about credibility
• This questioning is to happen before other party’s cross examine
• court may take into account whether party sought opportunity at earliest time to seek leave

Question 8

Q

Leading questions

Answer

A

• Must not in exam in chief unless
o Leave
o Introductory matter
o No objection is made and each other party is represented by a lawyer
o Relates to matter not in dispute
o For experts – the question’s purpose is to obtain opinion about a hypothetical statement of facts (being facts in respect of which evidence has been or is intended to be given)

Question 9

Q

Improper questions

Answer

A

• Court must disallow cross exam (or tell witness they don’t have to answer) if it thinks a question is
o Misleading or confusing
o Unduly annoying / harassing / intimidating / offensive / oppressive
o Tone that is belittling, insulting, inappropriate
o Has no basis other than a stereotype
• Not disallowable only because it
o Challenges witness’s honesty
o Requires discussion about something distasteful
• Failure of court to disallow does not affect admissibility of answer

Question 10

Q

Prior inconsistent statement

Answer

A

Witness can be cross examined about an alleged PIS made by the witness whether or not complete particulars of the statement have been given to the witness or a document containing a record of the statement has been shown to the witness. This rule only covers circumstances where the cross examiner wants to adduce evidence of the PIS otherwise than from the witness of a PIS that the witness refuses to acknowledge.
If witness doesn’t admit to PIS, cross examiner cannot adduce evidence of the statement otherwise than from the witness unless the cross examiner informs the witness of enough of the circumstances of the statement so that the witness can identify the statement or draws the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.

In documents:
• If a party cross examines a witness about a PIS that is recorded in a document or a previous representation made by another person that is recorded in a document, the court can order or the other party can request the document or such evidence of the contents of the document as is available.
• The court can examine the document, give directions as to its use, admit it even if it has not been tendered by a party (unless it’s inadmissible).
• A cross examiner doesn’t have to tender a document just because they produce it to a witness.

Question 11

Q

Previous representations of other persons

Answer

A

A cross examiner can’t question a witness about a previous representation made by another person.
Unless, evidence of the previous representation has been or will be admitted.
If not, but the representation is in a document, it can be used if:
The document is produced to the witness
If it’s a tape recording, the witness is given an opportunity to hear it without other persons present
Is asked whether they stand by the document
The cross examiner or witness must not identify or disclose contents of document.

Question 12

Q

Witness called in error

Answer

A

If a witness has been called in error and hasn’t been questioned by the other party, a party may not cross examine.
Rationale: a party should be free to withdraw a witness if they decide it was a mistake to call them. The other party can always call the witness.

Question 13

Q

Recalling witnesses

Answer

A

• If the witness had their say, and the second party adduces new evidence, and the witness didn’t have a chance to say anything about that evidence (because it’s new), the first party can recall the witness to have their say about that new evidence, i.e., if the new evidence contradicts something the witness said the first time round or if the witness could have given evidence about the matter in evidence in chief.

Question 14

Q

Hearsay rule

Answer

A

Evidence of a previous representation (i.e. outside proceedings) made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Question 15

Q

General list of hearsay exceptions (*6)

Answer

A

All hearsay

Non hearsay purpose
Other exceptions (e.g. business records)

1st hand hearsay

criminal - maker available
criminal - maker not available
civil - maker available
civil - maker not available
contemporaneous statements about health

Question 16

Q

Hearsay exception - non-hearsay purpose

Answer

A

• Prove basis of expert’s opinion
o Knowledge acquired by experts reading others experts
o The reported data of fellow experts relied upon by such persons as scientists and technical experts in giving expert opinion evidence
• Prove prior inconsistent (presented by cross examiner)
• Prove prior consistent statement (meet allegation of fabrication)
• Prove formation of agreement
Admissions

Question 17

Q

Hearsay exception - criminal - maker not available

Answer

A

• Person who perceived rep can give evidence if
o Representor was under a duty
 Derives from common law exception for people, now dead, who were under a duty to observe and record things
o Was made shortly after the asserted fact occurred and fabrication unlikely
 A statement made 24 hours after incident was open to trial judge to be shortly after – but this is stretching it
 Williams decision suggests that it should be spontaneous or under the proximate pressure (shortly after) of the incident
o Circumstances in which highly probably that rep is reliable
 Need to point to circumstances – not just to absence of circumstances
o Against the interests of the person and likely to be reliable
o Representation given in Australian or overseas proceedings (accused must have had opportunity to cross examiner the representor)
o If evidence of previous representation is adduced by defendant, HR doesn’t apply to evidence of another repsentation about the same matter that is adduced by another party and is given by a person who perceived the second representation being made.
 If the defence adduces evidence of a third party confession, the prosecution may adduce evidence from a person who heard the alleged confession that the third party also made other statements which qualified the confession in some way

Question 18

Q

Hearsay exception - criminal - maker available

Answer

A

• If the maker has been called to give evidence, HR doesn’t apply to evidence of the representation that is given by:
o The maker
o A person who perceived the rep
• …if the asserted fact was fresh in the memory of the maker

Question 19

Q

Hearsay exception - civil - maker not avaialble

Answer

A

Evidence of a rep given by a person who perceived the representation
Document or other document that is necessary to refer to understand

Question 20

Q

Hearsay exception - civil - maker available

Answer

A

• Evidence of a rep given by a person who perceived the representation
• Document or other document that is necessary to refer to to understand
..if it would cause undue expense/delay to call the person who made the representation.

• If the maker has been called to give evidence, HR doesn’t apply to evidence of the representation that is given by:
o The maker
o A person who perceived the rep

(note - same as criminal maker available exception except the asserted fact has to be fresh in the memory of the maker)

Question 21

Q

Hearsay exception - contemporaneous statements about a person’s health (first hand hearsay only)

Answer

A

Contemporaneous statements about a persons health- hearsay rule doesn’t apply to evidence of a rep made by a person if the representation was a contemporaneous statement about their health, feelings, sensations, intentions, knowledge or state of mind.

Question 22

Q

Other hearsay exceptions

Answer

A

Business records
Contents of tags, labels and writing
Electronic communications
Aboriginal and TSI traditional laws and customs
Reputation as to relationships and age
Reputation of public or general rights (Rights of a group of Aboriginals in respect of a particular piece of land)
Interlocutory proceedings

Question 23

Q

Jurisdiction - Magistrate Court

Answer

A

Summary offences
Indictable offences triable summarily (principally in Criminal Procedure Act s 28 and Sch 2)
Committal proceedings
Mention Court – uncontested matters triable summarily, encouraging resolution in potential plea negotiation cases, setting hearing dates for contested matters
Pre contest mention – general progress of case through court
Contest mention – evaluating cases which appear likely to be contested
Magistrates, judicial registrars, registrars, bail justices

Question 24

Q

Jurisdiction - Children’s Court

Answer

A

Summary offences
All indictable offences triable summarily except wrongful death cases (with permission of Court and accussed)
Wrongful death = murder, manslaughter, child homicide, defensive homicide, arson causing death, culpable driving causing death
(Murder can only be heard in the supreme court, the others can be heard in the County Court)
Child means person over 10 and under 18 and if the committed the offence when under 18 the proceedings may commence until they’re 19

Question 25

Q

Jurisdiction - County Court

Answer

A

Judge and jury can hear all indictable offences except those mentioned in (County Court Act 1958, s 36A(1)) including treason murder and attempted murder
Appeal – single judge – rehearing - sentences imposed by Magistrates Court or Children’s Court

Question 26

Q

Jurisdiction - Supreme Court

Answer

A

Unlimited
General supervisory power of inferior courts with prerogative writs
All appeals from trial division
All application for new trials
Court of appeal can hear appeal from final order of Magistrates Court of Children’s Court
Court of appeal can hear appeal against conviction or sentence from County Court of Supreme court trial
Court of appeal can hear question of law in case stated

Question 27

Q

Bail - general presumption

Answer

A

Must be granted bail if
• Not practical to bring before MC or BJ within 24 hours
• Whilst awaiting or during postponement of trial or hearing (of charge)
• During adjournment (unless not desirable in the public interest)
o for enquiries
o waiting for report
o pending sentence

Question 28

Q

Bail - exception to general presumption (1)

Answer

A

Scenario 1: Must be refused if
• treason or murder (except Supreme Court can grant bail if exceptional circumstances, and for murder, committing magistrate if exceptional circumstances)
• serious drug offences (unless exceptional circumstances)
• already in custody
• unacceptable risk of (or insufficient time to obtain info to determine if unnecessary risk)
o abscond
o new offences
o endanger public
o interfere with witnesses
o otherwise obstruct court process

Question 29

Q

Bail - exception to general presumption (2)

Answer

A

…

unless the accused can show cause

Question 30

Q

“Show cause”

Question 31

Q

Children and bail

Answer

A

max remand is 21 days

Question 32

Q

Arrest without warrant

Answer

A

• Any person
o Finds committing any offence and believes on reasonable grounds that the apprehension is necessary for one of following
 to ensure attendance of the offender before a competent court
 to preserve public order
 to prevent the continuation of repetition of the offence or the commission of a further offence
 safety of public
o when instructed by police (who have power under the Act)
o reasonable grounds to believe person is escaping from legal custody or avoiding apprehension
• Police
o RG to believe indicated offence in Victoria (or would be indictable if committed in Vic)
• May use force not disproportionate to the objective

Question 33

Q

Arrest warrants - what power do they confer?

Question 34

Q

Who can issue arrest warrants?

Question 35

Q

Executing an arrest

Answer

A

Words or conduct must convey to the person that they are under arrest
Person is entitled to know on what charge or on what suspicion of crime he is being arrested (but cannot complain if they make it impossible to know)
Reasonable force may be used – it must be proportionate to the objective sought
If an arrest is unlawful it can be resisted with all necessary and reasonable force
A person who resists under genuine mistake based on a reasonable belief that the person is not a police officer is not guilty of an offence

Question 36

Q

Questioning

Question 37

Q

Questioning - organised crime offence

Answer

A

Where suspicion of OCO, any Vic police can apply to SC with permission of Chief Commissioner of Police for a coercive powers order

Failure to answer questions is an indictable offence punishable by imprisonment and the witness cannot rely on a right to silence or the privilege against self incrimination

Question 38

Q

Questioning - organised crime offence - examples

Question 39

Q

Identification

Answer

A

Person must give name and address if police believe they have or will commit and summary or indictable offence or can assist with an investigation
Police can at CL require a person to submit to a photograph if suspected of crime or charged with an offence
Photographing prisoners on their reception into a prison or community corrections centre is authorised

Question 40

Q

Finger prints

Answer

A

Charged/summonsed/belief on reasonable grounds of indicable offence or summary offence listed in Schedule 7 (Crimes Act)
Must be told why they are required
That force may be used
Fingerprints may be used in evidence
Will be destroyed if not charged within 6 months

Question 41

Q

Finger prints - under 10 yo

Answer

A

cannot be taken

Question 42

Q

Finger prints - between 10 and 14

Answer

A

If between 10 and 14
Consent of parent or guardian (otherwise, on order from Children’s Court)
If application to Children’s court – evidence must be given on oath or by affidavit – court must consider age, degree of participation, seriousness of circumstances
Must be informed of child’s rights and procedure must be recorded

Question 43

Q

Finger prints - effect of contravention of procedure

Answer

A

If procedure contravened, fingerprints not admissible unless exceptional circumstances or accused consents

Question 44

Q

Identification parade

Answer

A

No compulsion under state law

Question 45

Q

Forensic procedures

Answer

A

• Intimate and non-intimate body samples
• Procedure on or physical examination of the body
• Requirements for compulsion
• Person must be charged, summonsed on a chage, believed on reasonable grounds to have committed an indictable offence
• Reasonable grounds for believing that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence
• Adults
o Consent
o Order by magistrates court
• Children
o Under 10
 Prohibited
o 10-17
 Children’s court may order – application must be serviced upon parent/guardian
 parent/guardian or independent person (of same gender) must be present
• copy of forensic report must be supplied to the suspect
• breach of procedures renders inadmissible unless court orders otherwise (Crimes Act 464ZE)

Question 46

Q

DNA

Answer

A

If person found guilty of ‘forensic sample offence’, court may order upon application for person to supply a forensic sampl and the the sample is retained on a database

Question 47

Q

Search - without warrant

Answer

A

For persons who have committed serious indictable offence or who have escaped from legal custody
Search persons, vehicles and animals in related to state drug offences (and seizure of relevant material)

Question 48

Q

Search - with warrant

Answer

A

• Incidental to a warrant to arrest
• Separate
o Generally
 Disclose the suspect offence
 Define the premises and delimit the thing the search and seizure of which is authorised
• Automatically includes authority to break, enter and search any place in which the person name or described in the warrant is suspect to be found
• Reasonable force may be used
• No general power to conduct full or strip search in public or private
• Disparate acts that allow for warrants
o Crimines act 465 – indictable offences
o Drugs, posions and controlled substances act s 81 – state drug offences
o Graffiti prevention act, s 14 – persons under 18
o Crimes act 341 – extra territorial offences
• Application must be supported by evidence on oath or by affidavit
o What does it need to show?
• May be executed by any member of police
• Things seized are not automatically available to police – they must be taken to magistrate
• If warrant is to search for something other than person, there is authority not only to break enter and search but also to arrest any person apparently having possession, custody or control of the item (if possession itself is an offence)

Question 49

Q

Search - privileges and immunities

Answer

A

Documents are protected by LPP and may not be inspected
Seizure by police of a accused’s own document prepared for his or her own defence is improper
Crown may claim public interest immunity from search and seizure of certain documents on grounds that it’s in public interest that confidentiality be maintained

Question 50

Q

Seizure

Answer

A

When authorised to arrest a person for indictable offence, police may seize all documents and articles found on arrested person that they have reasonable grounds for believing are material evidence to prove the commission of a crime
May take possession of goods or money alleged to be stolen if they are able to do so without force or violence
Entitled to retain it in order to preserve it and produce as evidence in court
Cannot hold longer than required for trial / subsequent appeal
Police cannot permanently retain money or other object unless there is a statute which indicates that such money or objects are to be forfeited
If property has been taken from a person charged with an offence and prior to trial or hearing, magistrate’s court may opine that it is in the consistent with interests of justice to return the property
The need to preserve evidence material for criminal proceedings may defeat a civil claim for the return of property

Question 51

Q

Charge Sheet

Answer

A

• Starting point, allegation of crime brought before MC
• Must describe offence
• Specify the provision
• Can describe a person as “a person unknown”
• Can contain more than one charge if related offences (same faces, or serious of ofefnces, or of similar character)
• After signing charge sheet, police can issue a summons for summary offences
• Filed with registrar (within 7 days)
o No fee
o Registrar must issue a summons or a warrant of arrest (unless a notice to appear has been served on accused – by police for summary offences of indictable offence triable summarily)
• All new cases are screened
o Mention hearing – summary offences and IOTS
o Filing hearing – indictable offences not triable summarily
• For summary offences
o Preliminary brief must be served within 7 days
o A full brief may be served later
• For indictable offences
o
• If accused fails to attend court or fails the conditions of bail, the court may issue a warrant for their arrest
• For summary offences, the court can hear the charge or adjourn the matter

Question 52

Q

Major examples of indictable offences triable summarily

Answer

A

o Criminal Procedure Act Schedule 2 – generally less serious
o Criminal Procedure Act s 28
o Schedule 4 – amalgamation of IOTS from 25 other Act?
o And other statutes…

Question 53

Q

Test for committal proceedings

Answer

A

• Test – whether the evidence is of sufficient weight to support a conviction

Question 54

Q

Stages in committal proceedings

Answer

A

• Filing hearing – venue, date, time etc is decided, important of legal rep is stressed and nature of committal proceeding is explained - signifies commencement of committal proceeding - within 7 working days of charge sheet being filed (if arrested and bailed/remanded) or 28 days if initiated by summons
• Case direction notice – specifies how case should proceed – what items listed in the hand up brief still need to be inspected by the accused before committal mention hearing and which witnesses the accused wishes to have called for cross exam – must be jointly filed by accused and DPP no later than 7 days before committal mention date
• Special mention hearing – for additional orders or provide further directions – not mandatory
• Compulsory examination procedure – supplementary investigative power to compel reluctant witnesses – on application of the informant before the committal hearing commences – magistrate must be satisfied it is in the interests of justice
• Committal mention hearing – the preliminary brief of hand up brief is served and any relevant witnesses are examined and cross examined – must be held within 3 months for sexual offence cases, otherwise 6 months
• Committal case conference -
• Committal hearing -
• If sufficient evidence – committal caution, alibi caution, and then magistrate commits the accused for trial
o Committal caution – you may plead guilty or not guilty, if you plead guilty, the sentencing judge may take this into account, are you guilty or not guilty (accused can no longer reserve plea but cannot be compelled to plea either, so a failure to plea is treated as a plea of not guilty)
o Alibi caution – your right to call evidence at trial in support of an alibi is restricted – written notice must be given to the court now or to the DPP no later than 14 days after the end of this committal hearing
• If not sufficient evidence – magistrate discharges the accused

Question 55

Q

Post committal proceedings

Answer

A

Magistrate commits the accused to stand trial
Deposition statements in hand up brief are sent to DPP
DPP solicitors review material and assess case
Legal officer/crown prosecutor recommends to DPP continuation/cessation of case
If accepted, it may be announced in court or made by way of written notice and served on accused (see s 177 Criminal Procedure Act)
A prosecution may be discontinued at any time whether or not an indictment has yet been filed, except during the trial

Question 56

Q

Opinion rule

Answer

A

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed

Question 57

Q

Examples of breach of opinion rule

Answer

A

Lay person saying doctor performed operation negligently
Opinion evidence involves drawing an inference
Where there is hearsay evidence of an opinion – both tests must be passed to be admissible (e.g. victim told mother “a man tried to rape me”. The opinion was that there was intention. Note – it would be hearsay whether the victim gave evidence of the representation or the mother)

Question 58

Q

Experience is not an opinion

Answer

A

Description of events – I saw this, I heard that
Giving evidence of someone’s state of mind is a fact
Police saying that they identified an accused on a video (if fuzzy, it might be an opinion –risk of misidentification)
No risk of misidentification – “that is my brother”

Question 59

Q

Expert evidence is not opinion, it is fact

Answer

A

Evidence by experts communicating data or observations of an attempted reconstruction of an accident is not opinion evidence
What professionals generally do in particular circumstances may be no more than fact about professional practices
An experienced witness giving evidence of a vehicle behaves in a particular instance

Question 60

Q

Exceptions to opinion rule

Answer

A

Summary of voluminous or complex documents
Evidence relevant for purpose other than as opinion evidence (e.g. “a man tried to rape me” prior consistent statement)
Lay opinion - opinion based on what someone saw and necessary to obtain an understanding of the person’s perception (in the absence of primary facts)
Evidence by an aboriginal or tsi about laws or customs
specialised knowledge (based on training study or experience - knowledge not generally held)
Admission - OR doesn’t apply to evidence of a previous representation made in relation to an admission (reasonably necessary to refer to understand the admission)
Evidence of judgments and convictions
Character evidence
Discretionary exclusion - probative value substantially outweighed by potential for unfair prejudice, misleading or confusing, waste of time
Mandatory exclusion - criminal proceedings - PV outweighed by unfair prejudice
Mandatory exclusion - improperly obtained evidence - must exclude unless desirability of admitting evidence outweighs undesirability

Question 61

Q

Tendency and coincidence

Answer

A

Relevant for different purpose (e.g. justify physical force used against person on the basis that they had violent tendencies)
Notice and significant probative value
Relates only to credibility
Bail / sentencing
Character, reputation, conduct or tendency is fact in issue (e.g. defamatory statement about tendency, case were person seeking parole is “dangerous”, case where issue was whether someone was of “good repute”)
section 100 court direction
adduced to explain/contradict COT evidence adduced by another party
mandatory and discretionary exclusions

Question 62

Q

Privileges - generally

Answer

A

LPP / Litigation / Unrepresented parties
Professional confidential relationship privilege
Privilege in respect of self incrimination in other proceeding
Privilege in respect of self incrimination
Sexual assault communications privilege - not in VIC
Religious confession

Question 63

Q

Corroboration

Answer

A

Originally, certain ‘unreliable evidence’ required corroboration. Now abolished.
Also, originally, the judge was required to warn juries of dangers of certain categories of uncorroborated evidence. Now abolished.
Trial judge retains general power/obligation to warn jury about dangers of uncorroborated evidence, including that it would be dangerous to convict.

Question 64

Q

List of unreliable evidence

Answer

A

Hearsay evidence
Admissions
Identification evidence
Evidence affected by age, ill health, injury
Evidence in criminal proceeding by witness who may have been criminally concerned
Prison informer
Oral evidence of unsigned questioning by investigating official
Evidence adduced by or on behalf of someone in a proceeding against the estate of a dead person (about which the dead person could themselves have given evidence if they were alive)
Any other evidence that “may be unreliable”

Answer 60

A

 undisputed
 Not important
 Unlikely to be unreliable
 Supports the defence
 Hearsay evidence of the accused and the accused has not testified in the trial
 Comes from the co-accused
 Lack of enthusiasm in the request for a warning and the absence of any request or reminder at the conclusion of the summing up when the direction had not been given

Answer 61

A

Party makes application for warning or direction due to evidence being unreliable
Judge must give warning
Must contain
-may be unreliable
-reasons
-need for caution
Unless there is a good reason (burden is on person against giving the warning)

Answer 62

A

• Judge must not
o Warn that children are unreliable per se
o Warn about unreliability of child based on age
• Judge may still
o Warn jury about reliability of a particular child’s evidence and reasons why
o Party must request
o Party must satisfy the court that there are particular circumstances that affect reliability that warrant warning (or giving of information of circumstances)
• Content
o No requirement as to content unlike 165(2)

Answer 63

A

• If court satisfied that defendant has suffered a significant forensic disadvantage (SFD) because of delay (CRITERIA)
o SFD not established by delay only
o Delay includes delay between alleged offence and its being reported.
• Court MUST inform jury of the nature of disadvantage and the need to take it into account when considering evidence (MANDATORY WARNING)
• Application by defendant (APPLICATION)
o No obligation on judge unless requested
o The possibility of miscarriage means judge should ask in appropriate circumstances whether a warning is requested.
• Court does not have to if there are good reasons not to. (PROVISO)
• Particular words not necessary (CONTENT)
• This section covers the field in respect of delay (COVERING THE FIELD)

Answer 64

A

• With court’s leave, may switch to cross examination about
o Unfavourable evidence (does not permit cross exam generally)
o A matter which they should know about but aren’t making a genuine attempt to give
o Whether they have made a prior inconsistent statement
• With court’s leave, may question only about credibility
• This questioning is to happen before other party’s cross examine
• court may take into account whether party sought opportunity at earliest time to seek leave

Answer 65

A

• Must not in exam in chief unless
o Leave
o Introductory matter
o No objection is made and each other party is represented by a lawyer
o Relates to matter not in dispute
o For experts – the question’s purpose is to obtain opinion about a hypothetical statement of facts (being facts in respect of which evidence has been or is intended to be given)

Answer 66

A

• Court must disallow cross exam (or tell witness they don’t have to answer) if it thinks a question is
o Misleading or confusing
o Unduly annoying / harassing / intimidating / offensive / oppressive
o Tone that is belittling, insulting, inappropriate
o Has no basis other than a stereotype
• Not disallowable only because it
o Challenges witness’s honesty
o Requires discussion about something distasteful
• Failure of court to disallow does not affect admissibility of answer

Answer 67

A

Witness can be cross examined about an alleged PIS made by the witness whether or not complete particulars of the statement have been given to the witness or a document containing a record of the statement has been shown to the witness. This rule only covers circumstances where the cross examiner wants to adduce evidence of the PIS otherwise than from the witness of a PIS that the witness refuses to acknowledge.
If witness doesn’t admit to PIS, cross examiner cannot adduce evidence of the statement otherwise than from the witness unless the cross examiner informs the witness of enough of the circumstances of the statement so that the witness can identify the statement or draws the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.

In documents:
• If a party cross examines a witness about a PIS that is recorded in a document or a previous representation made by another person that is recorded in a document, the court can order or the other party can request the document or such evidence of the contents of the document as is available.
• The court can examine the document, give directions as to its use, admit it even if it has not been tendered by a party (unless it’s inadmissible).
• A cross examiner doesn’t have to tender a document just because they produce it to a witness.

Answer 68

A

A cross examiner can’t question a witness about a previous representation made by another person.
Unless, evidence of the previous representation has been or will be admitted.
If not, but the representation is in a document, it can be used if:
The document is produced to the witness
If it’s a tape recording, the witness is given an opportunity to hear it without other persons present
Is asked whether they stand by the document
The cross examiner or witness must not identify or disclose contents of document.

Answer 69

A

If a witness has been called in error and hasn’t been questioned by the other party, a party may not cross examine.
Rationale: a party should be free to withdraw a witness if they decide it was a mistake to call them. The other party can always call the witness.

Answer 70

A

• If the witness had their say, and the second party adduces new evidence, and the witness didn’t have a chance to say anything about that evidence (because it’s new), the first party can recall the witness to have their say about that new evidence, i.e., if the new evidence contradicts something the witness said the first time round or if the witness could have given evidence about the matter in evidence in chief.

Answer 71

A

Evidence of a previous representation (i.e. outside proceedings) made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Answer 72

A

All hearsay

Non hearsay purpose
Other exceptions (e.g. business records)

1st hand hearsay

criminal - maker available
criminal - maker not available
civil - maker available
civil - maker not available
contemporaneous statements about health

Answer 73

A

• Prove basis of expert’s opinion
o Knowledge acquired by experts reading others experts
o The reported data of fellow experts relied upon by such persons as scientists and technical experts in giving expert opinion evidence
• Prove prior inconsistent (presented by cross examiner)
• Prove prior consistent statement (meet allegation of fabrication)
• Prove formation of agreement
Admissions

Answer 74

A

• Person who perceived rep can give evidence if
o Representor was under a duty
 Derives from common law exception for people, now dead, who were under a duty to observe and record things
o Was made shortly after the asserted fact occurred and fabrication unlikely
 A statement made 24 hours after incident was open to trial judge to be shortly after – but this is stretching it
 Williams decision suggests that it should be spontaneous or under the proximate pressure (shortly after) of the incident
o Circumstances in which highly probably that rep is reliable
 Need to point to circumstances – not just to absence of circumstances
o Against the interests of the person and likely to be reliable
o Representation given in Australian or overseas proceedings (accused must have had opportunity to cross examiner the representor)
o If evidence of previous representation is adduced by defendant, HR doesn’t apply to evidence of another repsentation about the same matter that is adduced by another party and is given by a person who perceived the second representation being made.
 If the defence adduces evidence of a third party confession, the prosecution may adduce evidence from a person who heard the alleged confession that the third party also made other statements which qualified the confession in some way

Answer 75

A

• If the maker has been called to give evidence, HR doesn’t apply to evidence of the representation that is given by:
o The maker
o A person who perceived the rep
• …if the asserted fact was fresh in the memory of the maker

Answer 76

A

Evidence of a rep given by a person who perceived the representation
Document or other document that is necessary to refer to understand

Answer 77

A

• Evidence of a rep given by a person who perceived the representation
• Document or other document that is necessary to refer to to understand
..if it would cause undue expense/delay to call the person who made the representation.

• If the maker has been called to give evidence, HR doesn’t apply to evidence of the representation that is given by:
o The maker
o A person who perceived the rep

(note - same as criminal maker available exception except the asserted fact has to be fresh in the memory of the maker)

Answer 78

A

Contemporaneous statements about a persons health- hearsay rule doesn’t apply to evidence of a rep made by a person if the representation was a contemporaneous statement about their health, feelings, sensations, intentions, knowledge or state of mind.

Answer 79

A

Business records
Contents of tags, labels and writing
Electronic communications
Aboriginal and TSI traditional laws and customs
Reputation as to relationships and age
Reputation of public or general rights (Rights of a group of Aboriginals in respect of a particular piece of land)
Interlocutory proceedings

Answer 80

A

Summary offences
Indictable offences triable summarily (principally in Criminal Procedure Act s 28 and Sch 2)
Committal proceedings
Mention Court – uncontested matters triable summarily, encouraging resolution in potential plea negotiation cases, setting hearing dates for contested matters
Pre contest mention – general progress of case through court
Contest mention – evaluating cases which appear likely to be contested
Magistrates, judicial registrars, registrars, bail justices

Answer 81

A

Summary offences
All indictable offences triable summarily except wrongful death cases (with permission of Court and accussed)
Wrongful death = murder, manslaughter, child homicide, defensive homicide, arson causing death, culpable driving causing death
(Murder can only be heard in the supreme court, the others can be heard in the County Court)
Child means person over 10 and under 18 and if the committed the offence when under 18 the proceedings may commence until they’re 19

Answer 82

A

Judge and jury can hear all indictable offences except those mentioned in (County Court Act 1958, s 36A(1)) including treason murder and attempted murder
Appeal – single judge – rehearing - sentences imposed by Magistrates Court or Children’s Court

Answer 83

A

Unlimited
General supervisory power of inferior courts with prerogative writs
All appeals from trial division
All application for new trials
Court of appeal can hear appeal from final order of Magistrates Court of Children’s Court
Court of appeal can hear appeal against conviction or sentence from County Court of Supreme court trial
Court of appeal can hear question of law in case stated

Answer 84

A

Must be granted bail if
• Not practical to bring before MC or BJ within 24 hours
• Whilst awaiting or during postponement of trial or hearing (of charge)
• During adjournment (unless not desirable in the public interest)
o for enquiries
o waiting for report
o pending sentence

Answer 85

A

Scenario 1: Must be refused if
• treason or murder (except Supreme Court can grant bail if exceptional circumstances, and for murder, committing magistrate if exceptional circumstances)
• serious drug offences (unless exceptional circumstances)
• already in custody
• unacceptable risk of (or insufficient time to obtain info to determine if unnecessary risk)
o abscond
o new offences
o endanger public
o interfere with witnesses
o otherwise obstruct court process

Answer 86

A

…

unless the accused can show cause

Answer 87

A

max remand is 21 days

Answer 88

A

• Any person
o Finds committing any offence and believes on reasonable grounds that the apprehension is necessary for one of following
 to ensure attendance of the offender before a competent court
 to preserve public order
 to prevent the continuation of repetition of the offence or the commission of a further offence
 safety of public
o when instructed by police (who have power under the Act)
o reasonable grounds to believe person is escaping from legal custody or avoiding apprehension
• Police
o RG to believe indicated offence in Victoria (or would be indictable if committed in Vic)
• May use force not disproportionate to the objective

Answer 89

A

Words or conduct must convey to the person that they are under arrest
Person is entitled to know on what charge or on what suspicion of crime he is being arrested (but cannot complain if they make it impossible to know)
Reasonable force may be used – it must be proportionate to the objective sought
If an arrest is unlawful it can be resisted with all necessary and reasonable force
A person who resists under genuine mistake based on a reasonable belief that the person is not a police officer is not guilty of an offence

Answer 90

A

Where suspicion of OCO, any Vic police can apply to SC with permission of Chief Commissioner of Police for a coercive powers order

Failure to answer questions is an indictable offence punishable by imprisonment and the witness cannot rely on a right to silence or the privilege against self incrimination

Answer 91

A

Person must give name and address if police believe they have or will commit and summary or indictable offence or can assist with an investigation
Police can at CL require a person to submit to a photograph if suspected of crime or charged with an offence
Photographing prisoners on their reception into a prison or community corrections centre is authorised

Answer 92

A

Charged/summonsed/belief on reasonable grounds of indicable offence or summary offence listed in Schedule 7 (Crimes Act)
Must be told why they are required
That force may be used
Fingerprints may be used in evidence
Will be destroyed if not charged within 6 months

Answer 93

A

cannot be taken

Answer 94

A

If between 10 and 14
Consent of parent or guardian (otherwise, on order from Children’s Court)
If application to Children’s court – evidence must be given on oath or by affidavit – court must consider age, degree of participation, seriousness of circumstances
Must be informed of child’s rights and procedure must be recorded

Answer 95

A

If procedure contravened, fingerprints not admissible unless exceptional circumstances or accused consents

Answer 96

A

No compulsion under state law

Answer 97

A

• Intimate and non-intimate body samples
• Procedure on or physical examination of the body
• Requirements for compulsion
• Person must be charged, summonsed on a chage, believed on reasonable grounds to have committed an indictable offence
• Reasonable grounds for believing that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence
• Adults
o Consent
o Order by magistrates court
• Children
o Under 10
 Prohibited
o 10-17
 Children’s court may order – application must be serviced upon parent/guardian
 parent/guardian or independent person (of same gender) must be present
• copy of forensic report must be supplied to the suspect
• breach of procedures renders inadmissible unless court orders otherwise (Crimes Act 464ZE)

Answer 98

A

If person found guilty of ‘forensic sample offence’, court may order upon application for person to supply a forensic sampl and the the sample is retained on a database

Answer 99

A

For persons who have committed serious indictable offence or who have escaped from legal custody
Search persons, vehicles and animals in related to state drug offences (and seizure of relevant material)

Answer 100

A

• Incidental to a warrant to arrest
• Separate
o Generally
 Disclose the suspect offence
 Define the premises and delimit the thing the search and seizure of which is authorised
• Automatically includes authority to break, enter and search any place in which the person name or described in the warrant is suspect to be found
• Reasonable force may be used
• No general power to conduct full or strip search in public or private
• Disparate acts that allow for warrants
o Crimines act 465 – indictable offences
o Drugs, posions and controlled substances act s 81 – state drug offences
o Graffiti prevention act, s 14 – persons under 18
o Crimes act 341 – extra territorial offences
• Application must be supported by evidence on oath or by affidavit
o What does it need to show?
• May be executed by any member of police
• Things seized are not automatically available to police – they must be taken to magistrate
• If warrant is to search for something other than person, there is authority not only to break enter and search but also to arrest any person apparently having possession, custody or control of the item (if possession itself is an offence)

Answer 101

A

Documents are protected by LPP and may not be inspected
Seizure by police of a accused’s own document prepared for his or her own defence is improper
Crown may claim public interest immunity from search and seizure of certain documents on grounds that it’s in public interest that confidentiality be maintained

Answer 102

A

When authorised to arrest a person for indictable offence, police may seize all documents and articles found on arrested person that they have reasonable grounds for believing are material evidence to prove the commission of a crime
May take possession of goods or money alleged to be stolen if they are able to do so without force or violence
Entitled to retain it in order to preserve it and produce as evidence in court
Cannot hold longer than required for trial / subsequent appeal
Police cannot permanently retain money or other object unless there is a statute which indicates that such money or objects are to be forfeited
If property has been taken from a person charged with an offence and prior to trial or hearing, magistrate’s court may opine that it is in the consistent with interests of justice to return the property
The need to preserve evidence material for criminal proceedings may defeat a civil claim for the return of property

Answer 103

A

• Starting point, allegation of crime brought before MC
• Must describe offence
• Specify the provision
• Can describe a person as “a person unknown”
• Can contain more than one charge if related offences (same faces, or serious of ofefnces, or of similar character)
• After signing charge sheet, police can issue a summons for summary offences
• Filed with registrar (within 7 days)
o No fee
o Registrar must issue a summons or a warrant of arrest (unless a notice to appear has been served on accused – by police for summary offences of indictable offence triable summarily)
• All new cases are screened
o Mention hearing – summary offences and IOTS
o Filing hearing – indictable offences not triable summarily
• For summary offences
o Preliminary brief must be served within 7 days
o A full brief may be served later
• For indictable offences
o
• If accused fails to attend court or fails the conditions of bail, the court may issue a warrant for their arrest
• For summary offences, the court can hear the charge or adjourn the matter

Answer 104

A

o Criminal Procedure Act Schedule 2 – generally less serious
o Criminal Procedure Act s 28
o Schedule 4 – amalgamation of IOTS from 25 other Act?
o And other statutes…

Answer 105

A

• Test – whether the evidence is of sufficient weight to support a conviction

Answer 106

A

• Filing hearing – venue, date, time etc is decided, important of legal rep is stressed and nature of committal proceeding is explained - signifies commencement of committal proceeding - within 7 working days of charge sheet being filed (if arrested and bailed/remanded) or 28 days if initiated by summons
• Case direction notice – specifies how case should proceed – what items listed in the hand up brief still need to be inspected by the accused before committal mention hearing and which witnesses the accused wishes to have called for cross exam – must be jointly filed by accused and DPP no later than 7 days before committal mention date
• Special mention hearing – for additional orders or provide further directions – not mandatory
• Compulsory examination procedure – supplementary investigative power to compel reluctant witnesses – on application of the informant before the committal hearing commences – magistrate must be satisfied it is in the interests of justice
• Committal mention hearing – the preliminary brief of hand up brief is served and any relevant witnesses are examined and cross examined – must be held within 3 months for sexual offence cases, otherwise 6 months
• Committal case conference -
• Committal hearing -
• If sufficient evidence – committal caution, alibi caution, and then magistrate commits the accused for trial
o Committal caution – you may plead guilty or not guilty, if you plead guilty, the sentencing judge may take this into account, are you guilty or not guilty (accused can no longer reserve plea but cannot be compelled to plea either, so a failure to plea is treated as a plea of not guilty)
o Alibi caution – your right to call evidence at trial in support of an alibi is restricted – written notice must be given to the court now or to the DPP no later than 14 days after the end of this committal hearing
• If not sufficient evidence – magistrate discharges the accused

Answer 107

A

Magistrate commits the accused to stand trial
Deposition statements in hand up brief are sent to DPP
DPP solicitors review material and assess case
Legal officer/crown prosecutor recommends to DPP continuation/cessation of case
If accepted, it may be announced in court or made by way of written notice and served on accused (see s 177 Criminal Procedure Act)
A prosecution may be discontinued at any time whether or not an indictment has yet been filed, except during the trial

Answer 108

A

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed

Answer 109

A

Lay person saying doctor performed operation negligently
Opinion evidence involves drawing an inference
Where there is hearsay evidence of an opinion – both tests must be passed to be admissible (e.g. victim told mother “a man tried to rape me”. The opinion was that there was intention. Note – it would be hearsay whether the victim gave evidence of the representation or the mother)

Answer 110

A

Description of events – I saw this, I heard that
Giving evidence of someone’s state of mind is a fact
Police saying that they identified an accused on a video (if fuzzy, it might be an opinion –risk of misidentification)
No risk of misidentification – “that is my brother”

Answer 111

A

Evidence by experts communicating data or observations of an attempted reconstruction of an accident is not opinion evidence
What professionals generally do in particular circumstances may be no more than fact about professional practices
An experienced witness giving evidence of a vehicle behaves in a particular instance

Answer 112

A

Summary of voluminous or complex documents
Evidence relevant for purpose other than as opinion evidence (e.g. “a man tried to rape me” prior consistent statement)
Lay opinion - opinion based on what someone saw and necessary to obtain an understanding of the person’s perception (in the absence of primary facts)
Evidence by an aboriginal or tsi about laws or customs
specialised knowledge (based on training study or experience - knowledge not generally held)
Admission - OR doesn’t apply to evidence of a previous representation made in relation to an admission (reasonably necessary to refer to understand the admission)
Evidence of judgments and convictions
Character evidence
Discretionary exclusion - probative value substantially outweighed by potential for unfair prejudice, misleading or confusing, waste of time
Mandatory exclusion - criminal proceedings - PV outweighed by unfair prejudice
Mandatory exclusion - improperly obtained evidence - must exclude unless desirability of admitting evidence outweighs undesirability

Answer 113

A

Relevant for different purpose (e.g. justify physical force used against person on the basis that they had violent tendencies)
Notice and significant probative value
Relates only to credibility
Bail / sentencing
Character, reputation, conduct or tendency is fact in issue (e.g. defamatory statement about tendency, case were person seeking parole is “dangerous”, case where issue was whether someone was of “good repute”)
section 100 court direction
adduced to explain/contradict COT evidence adduced by another party
mandatory and discretionary exclusions

Answer 114

A

LPP / Litigation / Unrepresented parties
Professional confidential relationship privilege
Privilege in respect of self incrimination in other proceeding
Privilege in respect of self incrimination
Sexual assault communications privilege - not in VIC
Religious confession

Answer 115

A

Prove basis of expert’s opinion
Prove prior inconsistent/consistent statement
Prove formation of an agreement

Answer 116

A

Where there is no risk of misidentification “that is my brother”
Description of events - ‘I heard this, I saw that”
Giving evidence of your state of mind is a fact
WHERE NO INFERENCE IS BEING DRAWN

Answer 117

A

Based on what the person saw, heard or otherwise perceived and necessary to understand the person’s perception

Essentially an exception for eye witnesses

Answer 118

A

"He raised his voice in anger"
"He threw the punch with the intention of hitting the person"
The gist of a conversation
A look of "wanting"
State of a road / factory floor
State of the weather
Speed at which something was moving
Apparent age of a person
Someone's identity
Whether someone was under the influence of drugs

Answer 119

A

based on training, study or experience
determined on balance of probabilities
expert must disclose the facts on which the opinion is based and the facts must be admissible
Jury should be directed that the opinion is only as good as the facts relied upon and that they shouldn’t be overawed

Answer 120

A

Yes
doctor - what causes an injury
botanist - identify cannabis
police - language was “consistent” with drug talk

No
doctor - how much force was necessary to cause injury - whether it was deliberate
botanist - identify cannabis’ age
police - language was drug talk

Answer 121

A

Evidence of conduct, character, reputation or tendency adduced to prove a tendency to act or think a particular way.

Answer 122

A

Evidence of two or more events being led to prove a person did or thought a particular way (on the basis that it is improbably the events occurred coincidentally).

Answer 123

A

Relevant for a different purpose (that a person did or had a tendency to act or think a particular way).
Notice and significant probative value
It is a fact in issue
Bail / sentencing
Relates only to credibility
Section 100 Court direction
Adduced to explain / contradict C or T evidence adduced by another party
Discretionary and mandatory exclusions

Answer 124

A

Client (includes agent)
Lawyer (acting independently in role of lawyer)
Communications or documents (between lawyer and client, between lawyers)
Confidential circumstances
Dominant purpose of providing legal advice
Or providing legal services relating to litigation
Court is required to predict whether adducing of evidence would result in disclosure of privileged material

Answer 125

A

o Documents which merely constitute or evidence transactions (contracts, conveyances, trust deeds, receipts, invoices, minutes or declarations) are not caught by the privilege
o Records of interview prepared by solicitor following interviews conducted with client’s employees were not privileged (because were not communications with client per se)
o In-house lawyers providing mere administrative processes
o However, witness statement / affidavit prepared for purpose of serving it on an opposing party was never confidential in the first place

Answer 126

A

Consent
Acting inconsistently with privilege
Questioning concerning the intentions or competence in law of a client/party who died
If absence of evidence prevents court enforcing an order
Communication/document affecting the right of a person
Evidence adduced by accused in criminal proceedings
Joint clients = civil proceedings, if two people had same lawyer before proceedings commenced, one of them can edduce evidence of communications between either of them and the lawyer
Misconduct
Deliberate abuse of power
Related communications and documents

Answer 127

A

	Secret trusts
	Defamatory utterances
	Acts of bankruptcy ?? elaborate
	Threats constituting a tort or crime
	Exercise of an option
	A contractual offer
	Conduct amounting to an election (more specific example???)

Answer 128

A

Need info here about certificate

Answer 129

A

Courts can make ‘disclosure orders’ as part of a search or freezing order.
A person may object on grounds that – it will tend to prove…offence or civil penalty
They must prepare an affidavit in a sealed envelope
Deliver it to court
File and serve on each party a separate affidavit setting out basis of the objection
Only court can order opening on sealed envelope
Court must determine whether there are reasonable grounds
If there are reasonable grounds, the envelope stays closed and is returned
If court thinks it may tend to prove offence/civil penalty under Australian law, but not an offence under foreign law, and it is in the interests of justice, the court can order full or partial disclosure of affidavit
If so, the person gets a certificate
See sections (8) and (9) as well.

Answer 130

A

Member of the clergy of any church or religious denomination can refuse to disclose that a religious confession was made or its contents
The confession has to have been made when they were a member of the clergy
Doesn’t apply if the confession was made for a criminal purpose

Answer 131

A

Instinctive synthesis of:
General sentencing principles
Proportionality
Hierarchy of sanctions
Cooperating discount
Informing discount
Guilt plea discount

Answer 132

A

Statutory maximum penalty
Current sentencing practices
Nature and gravity of the offence
Culpability of the offender
Impact on victim
Motivation by hatred for or prejudice against particular groups
Injury, loss or damage resulting from the offence
Early entry of a guilty plea
Previous character
Aggravating / mitigating circumstances

Answer 133

A

o Serious arson offender
o Serious drug offender
o Serious sexual offender
o Serious violent offender
o Must have been convicted (in past or current trial) of one (or sometimes two) crimes of a similar nature
o Status is automatic and permanent
o That it was committed when youth is irrelevant
o Priority given to community protection even if disproportionate
o Prison terms are cumulative, not concurrent

Answer 134

A

o One of 10 property (and related offences) in Schedule 1A involving $50,000 or more
o On repeating offences, subject to doubling of normal maximum term or 25 years, whichever lesser

Answer 135

A

Less severe v more severe
Non-confinement v confinement

o	Confinement
o	Combined custody and treatment order??
o	Hospital security order
o	Drug treatment order
o	Intensive correction order??
o	Community based order
o	Fine
o	Dismissal/discharge/adjournment

Answer 136

A

• Aggravating factors
o Recidivism
o Serious injury
o Breach of trust
o Use of firearms
o Commercial quantity of drugs
• If an element of the offence – jury must decide if it exists
• If only relevant to type or level of sentence – judge may make determination
• Aggravating circumstances which could have been the subject of a separate charge (but were not) cannot be relied upon

Answer 137

A

If convicted -
can adjourn setnence with conditions, if conditions are met, offender is discharged (or can discharge immediately)

If no conviction recorded -
Can be adjourned with conditions and if conditions are met, charge is finally dismissed (or can dismiss immediately)

Answer 138

A

Must appear before court if called
Good behaviour
Comply with any special conditions

Note - if there is no conviction and is adjourned - the offender does not become a convicted person but does acquire a criminal record for the purpose of future prosecution.

Answer 139

A

In substitution of imprisonable offence or fine more than 5 penalty units
6 mandatory conditions and at least 1 program condition
accused must consent

Answer 140

A

Do not commit imprisonable offence
Report to specified community corrections (CC) centre within 2 days of the order coming into force
Receive visits from CC officer
Notify officer of change of address or employment within 2 days
Do not leave state without permission of CC officer
Obey all lawful directions of officers

Answer 141

A

Community service
Supervision (high risk offenders)
Personal development (educational programs – for offenders with high needs directly related to criminal behaviour)
Assessment and treatment (alcohol and drug treatment)
Alcohol and drug testing
Justice plan (intellectuall disabled)
Residual (any other condition the court considers necessary other than order for compensation)

Answer 142

A

Substitute for imprisonment up to 12 months
Involves intensive participation in unpaid community work and rehabilitation programs
Conditions more onerous than suspended sentence or community based order

Answer 143

A

Only drug court division of magistrates court
Two parts: suspended custodial component and a treatment and supervision component
Only made if accused pleads guilty to imprisonable offence within jurisdiction of magistrate’s court
Court must be satisfied on balance of probabilities that offender is dependent and it contributed to offence
Sentence of immediate imprisonment must be appropriate but for the offender’s willingness to comply with treatment and supervision elements
Favourable drug treatment order assessment report

Answer 144

A

• Substitute for imprisonment up to 12 months
• At least 6 months in custody and remainder served in community with conditions
• Eligibility
o Offender agrees to all conditions
o Pre-sentence report (may also require drug and alcohol assessment report)
• Core conditions
o Do not commit imprisonable offence
o Report to specified community corrections (CC) centre within 2 days of the order coming into force
o Receive visits from CC officer
o Notify officer of change of address or employment within 2 days
o Do not leave state without permission of CC officer
o Obey all lawful directions of officers
o Drug and alcohol treatment (only additional core condition to community based order)
• Program conditions (optional)
o Drug or alcohol testing
o Any other condition relevant to addiction

Answer 145

A

Order is a sentence
Fixed period of detention in an approved mental health service
Available if, but for mental illness, would have served term of imprisonment
Psychiatric evidence must be adduced

Answer 146

A

•	Counterpart to hospital treatment order
•	For the intellectually disabled
•	May attach to a:
o	Community based order
o	Adjournment
o	Probation order
o	Youth attendance order

Answer 147

A

• Strong rehabilitative element
• Offender’s consent not necessary
• For magistrate, if sentence up to 2 years, can suspend (partially or wholly)
• For judge, if sentence up to 3 years, can suspend (partially or wholly)
• Three considerations
o Statutory limitation
o Should not be used if a normal custodial sentence would have been inappropriate
o Must not be wholly suspended for certain serioius offences unless exceptional circumstances exist (homicide, serious assaults, serious sexual offences)
• Only condition is that they don’t commit another offence punishable by imprisonment
• If breached, court must restore the suspended part of sentence (unless exceptional circumstances so that it should activate only part thereof)

Answer 148

A

• Non-violent, low risk, low security offenders
• Eligibility
o Formal assessment report from a community corrections officer
o Consent of offender
o Consent of other adults
• Consideration must be given to feelings of children

Answer 149

A

•	Max
o	Children’s C – 2 years, 3 years (in aggregate)
o	Mag – 2 years
o	County – 3 years
o	Supreme – 3 years

Answer 150

A

• Can be substituted for imprisonment (15-21, under sentencing act)
• Primary custodial sanction available (15-17, under children, youth and families act)
• Max
o Children’s C – 2 years, 3 years (in aggregate)
o Mag – 2 years
o County – 3 years
o Supreme – 3 years

Answer 151

A

• General presumption for concurrent
• Exceptions for
o Default of payment of a fine
o Prison or escape offences
o Serious offenders (for relevant offences)
o Offences whilst on parole
o Offences whilst on bail
• Generally, cumulative sentences ordered for unrelated offences or for offences committed whilst in breach of earlier forms of condition release
• Totality principle – multiple offences should be served cumulatively where, if served concurrently, the result would be “crushing” (rather than lowering the individual sentences below what would be appropriate)

Answer 152

A

21 years and over only
Supreme and county courts only
“serious offences” only
Including murder, manslaughter, causing serious injury intentionally, threats to kill, rape, assault with intent to rape, incest under 18, sexual penetration of children up to age sixteen, other sexual acts with those under sixteen, abduction or detention of children, kidnapping and conspiracy, incitement or attempt to commit any of the above
Sentencing must be adjourned for 25 days to allow offender time to prepare response
“Proof is required of ‘serious danger” to “High degree of probability” (which is lower than BRD)
No non-parole period is fixed but a nominal

Answer 153

A

•	Drivers licence
o	Cancelled
o	Suspended
o	Disqualified
•	Proceeds of crime
o	Forfeiture
o	Confiscation
o	Destruction
•	Others’ property
o	Restitution – in specie
o	Compensation
o	Cost recover orders – compensate state for emergency costs
•	Behavioral
o	Binding over (good behaviour bond)
	Bond gives rise to a civil debt to the crown upon breach
o	Intervention order
	Family violence intervention order
	Stalking intervention order
o	Restraining order
	For person subject to a superannuation order – the order will secure assets prior to trial

Answer 154

A

o	Corrective advertising
o	Prohibition order
	Prohibited from certain activities
o	Passport restriction
o	Quarantine order
	Application by police to supreme court to declare a premises is a common gaming house/place – thus allowing them to legally quarantine the premises
o	Superannuation order
o	Sex offender registration order
o	Supervision and detention order for serious sex offender
o	Control order
o	Preventative detention order

Answer 155

A

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Note - tends to be the exception to exclusionary rules.

Answer 156

A

If accepted, extent to which it could rationally affect the assessment of the probability of a fact in issue.

Must take the evidence at its highest - must assume that it will be accepted.

Question of law - subject to appeal.

Not irrelevant just because it relates to credibility (bias, veracity, intelligence), admissibility of other evidence or a failure to adduce evidence.

Relevance test applies to questions and answers in examination.

Answer 157

A

o Opinion of witness that a vehicle was moving at roughly 100km per hour or more - where she was moving at 70kmph in opposite direction at night and only saw headlights for a few seconds
o Accused’s drug taking 4 months after alleged robbery
o Nature and outcome of criminal proceedings against alleged accomplice, ie, if their trial finished first (unless accomplice is giving evidence against accused – relevant to motive to lie)
o Inability to cross examine will seriously reduce probative value
o Police officers testified that in their opinion, persn on video was the accused – held irrelevant because police were in no better position to make comparison than the jurors
o Asking accused to wear balaclava in court was not relevant because it didn’t provide any information to the jury that they did not already have – they could have made the comparison to the security footage without him putting on the clothing

Answer 158

A

May exclude if probative value substantially outweighed by
unfair prejudice
is misleading or confusing
or results in undue waste of time

Answer 159

A

Fundamentally - causing decision on improper basis.

o	Can be limited rather than excluded
o	Emotional basis
o	Illogical
o	Arousing sympathies
o	Sense of horror
o	Provoke Instinct to punish

o Accusation of criminal activity other than that charged
o Requirement to wear balaclava not prima facie unfairly prejudicial except for the unduly long time he was required to wear it.
o Evidence that an offender was heard to say to an accused that the police “know everything” was unfairly prejudicial to the accused since the accused did not adopt the inculpatory statement
o Mis-estimation of weight can cause prejudice (arising from inability to test the reliability of evidence)
o Inability to cross examine on material is not of itself unfairly prejudicial – but it can be – and ultimately it will effect ultimate weight given to evidence
o Inability to properly challenge evidence
o Evidence obtained in breach of professional conduct rules may cause unfair prejudice

Answer 160

A

Fundamentally - misestimation of weight of evidence

o Transcript of TV program excluded on basis that video was available and due weight may not be given to tone of voice and context
o Evidence excluded where it presented only part of the picture
o Evidence which is ambiguous and will invite speculation as to its meaning (e.g. evidence that C had told W “what happened”).

Answer 161

A

o Balancing exercise
o Exclusion only exercised in extreme circumstances
o Incremental probative value of the evidence is important (e.g. additional witnesses)
o Adjournments may result in undue waste of time (even if such adjournment are used to limit prejudicial effect – by giving opponent opportunity to test evidence properly)

Answer 162

A

MUST exclude if probative value outweighed by danger of unfair prejudice to accused

Gruesome photographs of the deceased in a murder trial
Evidence derived via hypnosis
Jury may not be permitted to engage in voice comparison in certain circumstances
Trial judge excluded pornographic photo but allowed police to describe it

Court may limit by
o Editing the evidence (although this may in turn create a distortion which leads to prejudice)
o Admitting evidence in one form rather than another
o Limiting the way in which the evidence can be used
o Recalling witnesses
o Adjourning proceedings
o Direction to jury

Answer 163

A

Unlawfully or improperly obtained evidence, must exclude unless desirability to admit outweigh undesirability

Need not necessarily be wilful or committed in bad faith or as an abuse of power
Need not be deliberate or reckless
Breach of applicable internal police guidelines
Entrapment
Misstatement of fact in an affidavit in support of a warrant
False induce a belief that police has a warrant to inspect premises
Arresting for minor offence when summons appropriate
Failure to obtain independent verification of (subsequently disputed) evidence
Deliberately choosing not to take a definite suspect into custody in order to utilise picture identification rather than an identification parade
Deliberate lie
Breach of contract (improper to adduce evidence where giving evidence would constitute breach of contract)
Deceptive conduct which do not involve illegal conduct are generally proper: Undercover police, Informers, Decoys, Phone tapping
Not improper for to obtain admission about sexual fantasies about children under guide of “effective supervision and guidance”.
Photos taken under defective search warrant shouldn’t be used to identify a year later, for different offence.

Answer 164

A

•	Admissions, obtained improperly if, during questioning
o	Did (or didn’t do) something which was likely to substantially impair the ability of the person being questioned to respond rationally
o	Knowing made a false statement and ought reasonably to have known that it was likely to cause the person who has being questioned to make an admission.

Answer 165

A

• The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, not must, lead to an inference that the uncalled evidence would not have assisted that party’s case.

Answer 166

A

• Only applies where a party is required to explain or contradict (in other words, no inference can be drawn unless evidence is given of facts requiring an answer)
• The evidence must be capable of eliminating the matter
• No inference is allowed that the evidence would have been damaging.
• May apply to both parties
• The principles apply to the failure by a party to ask a witness called by that party questions in chief, at least where the most natural inference is that the party feared to do so (as opposed to only applying to failure to call the witness)
o In fact the omission to ask a question of friendly witness may be more significant that the failure to call a witness

Answer 167

A

o Witness has a reason for not telling the truth
o The witness not called is the party’s solicitor
o The evidence would be merely cumulative
o Does not apply to the non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness (in other words, where the missing witness would be expected to be called by one party rather than another)
 If the insurer is in charge of litigation and the defendant is in the position only of a potential witness capable of being subpoenaed, the defendant is to be regarded as a non-party witness for purposes of the above principles

Answer 168

A

o Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely engaged in the transactions in question and present in court during the hearing

Answer 169

A

The rule requires that, if witnesses do not have notice of an opponent’s case, the nature of that case must be put to them before they are cross-examined.
This allows witnesses an opportunity to respond to any allegations that will be raised against them. In more recent times the rule has been clarified: it is satisfied so long as notice of the disputed aspects of the case has been given to the witness.

Answer 170

A

• Guilt should be the only rational conclusion that can be drawn from the circumstances (a direction as such should be given if necessary to allow the jury to complete their task properly and avoid a miscarriage of justice)

Answer 171

A

Where an intermediate conclusion of fact constitutes an indispensable link to finding guilt – that fact itself must be proved beyond a reasonable doubt
Evidence which, although logically only a strand in a cable, is of great practical importance (often includes tendency evidence) (in other words, where a jury may consider that a particular intermediate fact is indispensable to excluding any reasonable doubt as to guilt, that it should be proven BRD)
Evidence of sexual conduct other than the offence can be used in inferential reasoning if proved BRD (unclear if it be used if not proved BRD)

Answer 172

A

The individual factual inferences which taken together produce a finding beyond reasonable doubt (strands in a cable)
Relationship evidence may not be required to be proved BRD before it may be taken into account
Where lies are used as evidencing a consciousness of guilt, as part of a circumstantial evidence case
Motive if the jury was not being invited to infer guilt from motive alone

Answer 173

A

Ultimately for the trial judge to determine whether to give directions that relate the standard of proof to intermediate facts
Unsettled, but general, if an intermediate fact is not indispensable, no direction is required
Model direction - if you conclude that the existence of any particular circumstance is indispensable, or essential, before you could be satisfied beyond reasonable doubt of the guilt of the accused, I direct you that you cannot find the accused guilty unless the existence of that circumstance is proved beyond reasonable doubt.

Answer 174

A

Hearsay (if first hand) and opinion rule do not apply
No exception for Third party admissions - ensures that the evidence of an admission by one accused cannot be used against another accused in the proceeding
Violent conduct
Act by investigating official who was thought to be able to influence instigation of prosecution
Discretion to exclude if unfair in the circumstances
Improperly obtained evidence discretion
Recording:
- Must be recorded or confirmed later in recording
- Voice and video recording if practical
- Informing of rights must also be recorded
- Entire interview must be recorded unless they constitute separate sessions

Answer 175

A

Must maintain confidentiality - must not disclose or use in any way
Must return brief if confidential info of any other person would materially affect your case
Must return brief if you have confidential information of any other party
Equitable doctrine of confidential information

Answer 176

A

Need to develop an answer and get a clear map in my head

confidential info
fiduciary duty of loyalty
due adminsitraiton of justice

Answer 177

A

Appearing for two or more parties - must determine if interests may as a real possibility conflict, if so, return briefs with confidential info, and any other parties
Personal or family interests must not conflict
Barrister’s fees - must not exert undue influence to predispose them to pay more
Instructing solicitor and client - must inform solicitor in writing, if solicitor won’t tell client, must tell client in conference in solicitor’s presence, otherwise consult Ethics Committee
Fiduciary duty of loyalty - shouldn’t act against former client in same or closely related matter (Spincode)
Due adminsitration of justice
Independence - if by any connection it would be difficult to maintain professional independence, should refuse brief, unless truly informed consent

Answer 178

A

Formerly a member of a court/tribunal
Two brief to appear on same day
Personal relationship with opposing counsel
Appearing in a contested or ex parte matter where family is on bench

Answer 179

A

• If seeking interlocutory relief, must disclose everything
o Within barrister’s knowledge
o Not protected by LPP, and
o The barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client
• If above matters are protected by LPP, must seek instructions for waiver of privilege
• If the client doesn’t waive, must inform the client of the client’s responsibility to authorise such disclosure and possible consequences of not doing so (WHAT ARE THESE)?
• Cease to act in relation to the application

Answer 180

A

If it is pleaded, factual material provides proper basis
If it is made in evidence, it will be admissible
The client wishes the allegation to be made (after being advised of the seriousness of allegation and possible consequences – WHAT ARE THESE?)

Answer 181

A

Reasonable grounds to believe material provides proper basis
If going to a fact in issue, it is part of the client’s case
In going to credit alone, barrister believes on reasonable grounds that affirmative answers would diminish the witness’s credibility

Answer 182

A

Reasonable grounds to believe evidence provides a proper basis
Reasonable grounds to believe it is well founded and relevant
The imputations are put in language which is no stronger than the case requires

Answer 183

A

• Criminal matter in Magistrate’s Court.
• Criminal matter in Federal Magistrate’s Court.
• Criminal matter in County Court for a legally aided person (if barrister is requested by the Legal Aid) if barrister satisfied that no prejudice will be suffered by barrister or client.
• Once proceedings are instituted (if acting for plaintiff) or served (if acting for defendant), must not, except with permission from Ethics Committee or if retained by solicitor, accept instructions/brief to appear in:
o HC
o FCA
o FamCA
o VSC
o CC (except in criminal matters instructed by legal aid)
o Civil proceedings of Magistrate’s Court
o Civil proceedings of Federal Magistrate’s Court
• Must not accept any brief / decline to act if barrister considers it in the interests of the client that a solicitor be instructed.

Answer 184

A

o keep a case record in written form which sets out:
o the date of receipt of the instructions or brief, the name of the client, the name of the case and any requirements of the client as to time limits;
o the date on which the instructions or brief were accepted;
o the terms on which the instructions or brief were accepted;
o the dates of any subsequent instructions, of the dispatch of advices and other written work, or conferences and of telephone conversations;
o when agreed the fee;
o when made any promises or undertakings as to the completion of the work;
o as soon as they become apparent to the barrister, any time limits;

Answer 185

A

o copies of instructions and briefs;
o copies of all advices given and documents drafted or approved;
o a list of all documents enclosed with any instructions or brief;
o notes of all conferences and of all advice given on the telephone.

• Retain until the expiry of limitation of actions period.

Answer 186

A

o to receive or handle client’s money;
 E.g. if matter is settled and client has to pay, they should directly to other party or through other party’s solicitor.
 Barristers do not have trust accounts
 Fees must be paid to barrister’s clerk
 If paid in advance, must be paid to trust account and retained until memo of fees sent to client
 All fees must be paid into a trust account established pursuant to the Legal Practice Act to be retained until a memorandum of fees is sent to the client.
 If barrister doesn’t engage a clerk, they must comply with Rule 188A in respect of collection of fees
 Barristers who do not engage a clerk but who undertake DAM work cannot receive money on account of fees in advance of performing the legal services as such money is, by definition, trust money
o to perform any administrative work not normally performed by a barrister in private practice;
o to perform inter partes work of a kind not normally performed by a barrister in private practice;
o from a member of an approved body on behalf of a client in respect of a matter not generally within the professional expertise of that body.

Answer 187

A

Conditional cost agreement - barrister will not be paid unless client succeeds
Contingency fee – barrister’s fee depends on the amount of property or transaction involved or amount recovered (not allowed)

Answer 188

A

• Always
o Set out circumstances that constitute success
o Be in writing
o Clear plain language
• If between barrister and client, must
o Signed by client
o Contain statement that the client has been informed of the client’s right to seek independent legal advice before entering the agreement
o Contain a cooling off period of at least 5 clear business days (client may terminate by written notice during this period)(Thus, if barrister is asked to accept a no win no fee brief 3 days before trial, it must be through a solicitor)

Answer 189

A

barrister and solicitor on reasonable grounds consider that client has unreasonably rejected a reasonable offer contrary to the barrister’s advice
client has refused to pay a reasonable fee for all work done or to be done after the client’s rejection of the offer
client was informed of this rule before B accepted brief
the barrister has the firm view that the client has no reasonable prospect of success or of achieving a better result.

Answer 190

A

under the Family Law Act

* in criminal proceedings

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