Evidence Flashcards
** EXAM ** - Evidence of sexual experience of complainant *
Section 44(1) - Evidence Act 2006
No evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
** EXAM ** - Evidence of sexual reputation of complainant *
Section 44(2) - Evidence Act 2006
No evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
Propensity evidence against sexual experience of complainant
Evidence of the complainant’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.
** EXAM ** - What must the judge be satisfied to grant permission for propensity evidence against the sexual experience of the complainant?
Section 44(3) - Evidence Act 2006
That the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
** EXAM ** - Protection of witness addresses *
Section 87 - Evidence Act 2006
Protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street, but also the name of the town or community the witness lived in.
** EXAM ** - When may these details be disclosed? *
Where the judge determines that they are sufficiently directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.
** EXAM ** - Protection of complainants occupation
Section 88 - Evidence Act 2006
Protects a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation
Corroborative evidence
Section 121 - Evidence Act 2006
In any criminal proceeding, the complainant’s evidence does not have to be corroborated. This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainant’s account.
What are the offences that need to be corroborated under Section 121?
- Perjury
- False Oath
- False Statement/Declaration
- Treason
Previous consistent statement rule
Section 35 - Evidence Act 2006
Governs all exceptions to the previous consistent statements rule. Previous exceptions under the common law, including evidence of recent complaint, no longer apply. Previous consistent statements of a witness are inadmissible
** EXAM ** - When is a previous consistent statement admissible?
Section 35 - Evidence Act 2006
(a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case
Why is a previous consistent statement generally inadmissible?
When statements are used over and over again in court it gives a greater impact and if put to the jury there is danger it might place more weight on the evidence than it warrants. This is to prevent repetitive material in the Courts.
Veracity defined
The disposition of a person to refrain from lying, whether generally or in the proceeding.
Recorded interviews
Due to the sensitive nature of sexual complaints, the courts have allowed the use of video recording to record the statement.
There are regulations around the recording and management of the video of the complainant under the Evidence Regulations 2007 and production of the video in court proceeding under section 103 - 107 of the Evidence Act 2006.
Level 3 specialist interviewers
L3 Specialist Interviewers should be used when interviewing witnesses or complainants of major offences, eg, homicides, sexual assaults, aggravated robberies with firearms, kidnapping, abduction etc.
The specialists use enhanced cognitive interview techniques to maximise the quality and quantity of information obtained from witnesses.
