Evidence Flashcards
Who does the burden of proof under criminal law fall upon?
The prosecution, subject to certain specific statutory exemptions
What is the Woolmington principle?
Innocent until proven guilty
When does “evidential burden” fall upon the defence?
Once the basic elements of the offence have been proven it is up to the defence to provide some evidence to support their defence eg self defence in a stabbing. The onus still falls on the prosecution to negate that defence once raised by the defence
What are the legal burdens of proof for prosecution and defence?
Prosecution - beyond resonable doubt
Defence - on the balance of probabilities
Can the Court rely on the evidence of one witness, unsupported by any evidence?
Yes with the specific exceptions of perjury and treason. In those cases corroboration is required IE some independent evidence that implicates the defendant is required
Must a Judge warn a jury regarding the dangers of uncorroborated evidence?
No but they may warn the Jury to exercise caution if they consider uncorroborated evidence may be unreliable.
For hearsay evidence the Judge must consider issuing a warning
What is visual identification evidence?
- An assertion by a person that a defendant was present at or near a location where an act constituting evidence of an offence was done
- A written or oral account of the above
What is recognition evidence?
Where the witness knew the defendant prior to the offending
What is observation evidence?
Evidence of defendants role in offending eg “I saw that one punch her twice”
What is resemblance evidence?
Evidence that a person shares certain features in common with the defendant or descriptions eg “It was some homeless looking fella with one leg”
What are some good reasons for not following a formal identification procedure?
- Refusal to take part in a parade or permit photograph to be taken
- Singular in appearance
- A substantial change in suspect appearance after the offence but before formal ID procedure
- ID couldn’t be anticipated to be an issue
- A chance meeting was made or offender ID’d at scene
Is an informal ID procedure admissible?
No, unless one of the good reasons under S45(4) is met or the Crown proves beyond reasonable doubt that it is reliable
Who does the formal identification procedure relate to?
Only persons alleged to have committed the offence
What is dock identification and is it allowed?
The witness IDing the defendant in the dock. It will pretty much always fall over due to being pretty freaking prejudicial
For formal identification procedures to be ruled inadmissible what must happen?
The defendant must prove on the balance of probabilities that it was unreliable. This can be by arguing that the process was unreliable or a factor relating to the witness eg bad lighting
Who should conduct an identification parade?
A Sgt or S/Sgt. OC can be present but should not be involved in proceedings
Can participants in a visual parade or montage be members of Police?
No
Is voice identification admissible?
No, unless the Prosecution can prove on the balance of probabilities that it is reliable. This is a lower standard of proof than other prosecution burdens
What is the reliability rule (S28)?
Relates to unreliable statements due to the manner in which they were obtained. One the defence, or Judge, questions the reliability of a statement based on evidential foundations it is ruled inadmissible unless the Judge can be satisfied that the circumstances in which the statement have been obtained were unlikely to affect its reliability
What are some factors that would make a statement unreliable?
External factors - Threats, coercion etc
Internal factors - Mental illness, alcohol consumption, sleep deprivation
What is the oppression rule (S29)?
If a statement was influenced by oppression then it will be ruled inadmissible
What is oppression for the purposes of S29?
- Oppressive, violent, inhuman or cruel treatment
- Threats of conduct as above
What is the improperly obtained evidence rule (S30)?
Improperly obtained evidence may be excluded. Whether or not it is excluded is a balancing test between the impropriety and the weight of the evidence
Does it matter whose Rights were breached when a defendant claims evidence was improperly obtained?
No, it just matters that it was improperly obtained however greater weight will be given to it during the balancing test if it was the defendants Rights that were breached
Is breaching the Chief Justices Practice Note on Police Questioning illegal?
No but it will compromise the fairness of the questions asked and the statements obtained
