Evidence Flashcards
S44 - Evidence of sexual experience or sexual disposition of complainants in sexual cases
S44 covers evidence of sexual experience of complainants in sexual cases.
Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant.
S44 is subject to what rule?
The propensity rule in S40(3) - evidence of the complainant’s propensity to act in a certain way with the defendant may be offered as evidence but only if the judge grants permission.
S87 - Privacy as to witness’ precise address
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.
S88 - Restriction on disclosure of complainant’s occupation in sexual cases
Protects a complainant from having questions put to them or to a witness about the complainant’s occupation.
However, an application can be made to the judge to disclose this information in court.
S121 - Corroborative evidence
In any criminal proceeding the complainant’s evidence does not have to be corroborated.
Criminal Procedure Act 2011 - S97 - Standard procedure of giving oral evidence
Allows under special circumstances on application for the court to agree to hear oral evidence.
If this is granted, then the complainant of sexual offences will have protection surrounding who can be present and what can be asked.
What does S35 of the Evidence Act 2006 cover?
The previous consistent statements rule. This governs all exceptions to the previous consistent statements rule.
When would a previous consistent statement of a witness be admissible?
S35(1) - If it comes within the exceptions of S35(2) or (3).
What does S35(2) state about a previous consistent statement in relation to veracity or accuracy?
S35(2) - A PCS is admissible if it is necessary to respond to a challenge to the witness’s veracity or accuracy.
S35(2) makes a previous consistent statement admissible if it is necessary to respond to a challenge to the witness’ veracity or accuracy.
What two grounds must the challenge be based on?
- A previous inconsistent statement of the witness, or
- A claim that the witness recently invented evidence.
Under S35(3) what are two situations where a PCS would be admissible?
S35(3) - Admissible if:
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
Once a PCS is admitted, what can is be used to prove?
Anything that is of consequence.
Under S35 of the EA06, why is it important to record all information that a witness can provide about an incident, including what the complainant said to them?
The witness’s information may then be used in court as rebuttal evidence if the complainant’s veracity is challenged.
Advantages of Visually Recorded Interviews
- Greater quality and quantity of information obtained
- Reducing contamination by the interviewer through the process of transposing the interview into a statement
- Providing a valuable means for the witness to refresh their memory before judicial proceedings
- Minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief.
Why does DVD recording of a child interview meet the child’s needs?
- The interview process is focused on the child and allows them to state clearly and freely what (if anything) has happened according to the rules of evidence.
- The recorded interview can be used for the basis of an investigation, subsequent criminal prosecution and/or care and protection purposes.
- It avoids the need to re-interview the child for different purposes.
