Evidence Flashcards
What is veracity?
The disposition of a person to refrain from lying
What are the six objectives set out in section 6 of the evidence act 2006?
A. Application of logical rules
B. Rules of evidence
C. Fairness
D. Confidentiality
E. Avoiding unjustifiable cost & delay
F. Enhancing access to the law of evidence
What’s the fundamental condition for the admissibility of evidence
Evidence that is not relevant will not be admissible
What does section 8 of the evidence act 2006 set out
The intention of section 8 is to help a judge manage the length of a trial and to ensure fairness of the proceeding
In section 9 of the evidence act 2006 admission by agreement what does this mean in practise ?
Prosecution and defence can agree to admit facts so they do not need to be proved.
The judge still has to ensure that the trial is fair
What is the Walmington principal
The woolmington principle is that the burden of proof lies with the prosecution
What is the standard of proof required on the prosecution
Beyond reasonable doubt
What is the standard of proof required from the defence
The balance of probabilities
What is reasonable doubt
Reasonable doubt as an honest and reasonable uncertainty
What is meant by the balance of probabilities
More probable than not
What is a child complainant
The complainant who is child under the age of 18 years when the proceeding commences
How to witnesses under the age of 12 give evidence
They must be informed by the judge of the importance of telling the truth and not telling lies and they must promise to tell the truth before giving evidence
What does section 107 of the criminal procedure act 2011 allow?
The defence may call a witness immediately after a prosecution witness
What is the four step regime of the criminal disclosure act 2008
Initial disclosure by the prosecution
Full disclosure by the prosecution
Defence disclosure
Third party disclosure
In relation to the criminal disclosure act 2008 what is the meaning of relevant
Information or an exhibit that tends to support or rebut or has a material bearing on the case against the defendant
What are the two exceptions to the prohibition on previous consistent statements
To respond to a challenge to the witnesses Voracity or accuracy
What are the three ways in which a witness may be deemed as hostile
They exhibit a lack of voracity giving unfavourable evidence
They give evidence is inconsistent with the statement previously made with an intention to be unhelpful
Refuses to answer questions or deliberately withholds evidence
What are the two purposes of cross-examination
To elicit information supporting the case
To challenge the accuracy of the testimony given in evidence in chief
What for factors a present for the duty to cross-examine
The topic of cross-examination is a significant matter
The matter is relevant and in issue
The matter contradicts the evidence of a witness
The witness must reasonably be expected to be in a position to give admissible evidence on the matter
When is an associated defendant compellable to give evidence for both the crown and defence
Where the associated defendant has been tried separately or where the proceeding against the associated defendant has been determined
Is marital privilege allowed
No
What’s propensity
The tendency to act in a particular way
What must the probative value of propensity evidence have
The probative value must outweigh the risk of an unfairly prejudicial effect
Define hearsay evidence
Statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents
When can hearsay evidence be admissible
The statement is reliable
And the maker of the statement is unavailable as a witness or undue expense or delay could occur if the maker is required to be a witness
Evidence offered by the prosecution of the statement made by defendant is not admissible against the defendant if what
If it is excluded under any of the following rules:
The reliability rule
The oppression rule
The improperly obtained evidence rule
Where is the emphasis of any inquiry determining admissibility under the reliability rule
The emphasis is on the circumstances not whether the statement is actually reliable
What is the onus of the prosecution once and issue of unreliability has been raised
To prove on the balance of probabilities that the circumstances in would not have adversely affected its reliability
What is the onus on the judge when an issue of oppression has been raised
The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression
What is the meaning of oppression in the section of the evidence act
Oppressive,
violent
inhuman or
degrading conduct towards or treatment of the defendant or another person or a threat of conduct or treatment of that kind
What is the onus on the prosecution once and issue of oppression has been made
To satisfy the judge beyond reasonable doubt that the defendant’s statement was not influenced by oppression
When must the judge exclude improperly obtained evidence
If the judge determines that its exclusion is proportionate to the Impropriety
And is satisfied on the balance of probabilities that the evidence was improperly obtained
Evidence is in properly obtained if it is obtained house
Unfairly
inadmissible statement evidence
It was obtained by a breach of any Enactment or rule of law
What is the burden of proof imposed on the prosecution for the admissibility voice identification evidence
The burden of proof is on the balance of probabilities
What’s the inherent risk of identification evidence
There is an inherent risk of unreliability
What’s the special warning a judge needs to provide a jury about identification evidence
Mistaken identification can result in a serious miscarriage of justice and
mistaken witnesses may be convincing and
More then one identification witnesses may be mistaken
How does the evidence Act define opinion
The statement of opinion that tends to prove or disprove a fact
What is required for expert opinion evidence to be admissible
It must offer substantial help to the factfinder and understanding of the evidence or ascertaining any fact in the proceeding
What’s the overriding duty of an opinion expert witness
To assist the court impartially
What defines an expert in the evidence act
A person who has specialise knowledge or skill based on training study or experience
If the defendant intends to offer expert opinion evidence in a criminal proceeding what is required
Notice of intention to call expert evidence is required at least 10 working days before the day of the trial
