Evidence Flashcards
Complainants character
Section 44 Evidence Act
No evidence or questions (except with the judges permission) can be put to the complainant about their sexual experience with any person other than the defendant
Is subject to the propensity rule. Evidence of the complainants propensity to act a certain way with the defendant including sexually may be offered as evidence but only if the judge grants permission
Complainants Address
Section 87 Evidence Act
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
May be disclosed where the judge determines that they are directly relevant to the facts at issue and excluding them would be contrary to the interest of justice
Doesn’t apply if it is necessary in order to ensure that the defendant is fully and fairly informed of the charge
Corroborative Evidence
Section 121 Evidence Act
The complainants evidence does not have to be corroborated.
Sexual offences are usually committed with no independent evidence
121
1) it is not necessary in a criminal proceeding for evidence on which the prosecution relies to be corroborated except with respect to offences of -
a) perjury
b) false oaths
c) false statements or declarations
d) treason
Judge need not warn the jury of uncorroborated evidence
Previous Consistent Statements Rule
Section 35 Evidence Act
Applies to statements that would have come under rule of recent complaint
A previous consistent statement is admissible if it is necessary to respond to a challenge to the witnesses veracity (truth) or accuracy BASED on
- a previous inconsistent statement of the witness
- a claim that the witness recently invented evidence
Admissible if -
- circumstances relation to the statement provide reasonable assurance that the statement is reliable AND
- statement provides the court with information the witness is unable to recall
Will really only be admissible as rebuttal evidence
Recorded Interviews
Advantages
Done by a specialist level 3 interviewer
(homicides, sexual assault, kidnapping/abduction, serious assaults)
1) great quality and quantity of information obtained
2) minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief
3) reducing contamination by the interviewer through the process of transposing the interview into a statement
4) providing a valuable means for the witness to refresh their memory before trial
In exceptional circumstances an NCO can authorise a suitably competent investigation to do the interview if no level 3 specialist available
Child Complainants
All interviews with a child (under 18) must be carried out by a specialists child witness interviewer.
Courts expectations that evidenced will be presented by video
Any DVD/video record of a child complainant would normally be admissible in criminal proceedings (unless there are exceptional circumstances)
It meets the child needs because:
1) interview process is focused on the child and allows them to state clearly and freely what has happened
2) recorded interview can be used for the basis of an investigation, subsequent criminal prosecution and/or care and protection purposes
3) it avoids the need to re-interview the child for different purposes.
Video/DVD alternative means of evidence
Allows for the complainants or witnesses evidence to be admitted by alternative means (playing DVD/video in court or given orally via CCTV in a safe location)
Crown must apply to use “alternatives means”.
It is the judges decision whether to allow it, and is not guaranteed (considered on its merits)
Preparing a child witness before trial
Give the witness the opportunity to view the video record before giving evidence.
Child should meet the crown and be shown the courtroom before trial.
“being a witness - going to court” booklet
Applying to court for authority to use DVD evidence
Police must apply to the court under section 107 evidence act 2007 for the recording to be admitted.
Application normally prepared by crown.
Application to be made as early as possible before trial. All parties to be heard in chambers.
Transcripts for child recorded interviews
Responsibility of O/C to ensure transcript is prepared.
All non-verbal communication is in the transcript and transcript is accurate. Keep copy on file.
Specialist Child witness interviewer must check transcript against the tape for accuracy and acknowledge this in their brief of evidence.
Under regulation 28 of the evidence act: Transcript to be provided to defendants lawyer as soon as practicable after not guilty plea entered
Section 44 Evidence Act
1) in a sexual case 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
2) in a sexual case 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
3) in an application for permission under subsection (1) the judge must not grant permission unless satisfied 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
4) the permission of the judge is not required to rebut or contradict evidence given under subsection (1)
5) in a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given or any question put that relates directly or indirectly to the sexual experience of the complainant with that other person
6) this section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section
Complainants Occupation
Section 88 Evidence Act
Protects complainant or any other witness from having questions put to them about the complaints occupation or having evidence or statements/remarks made about the complainants occupation
Judge can grant permission if satisfied that the question to be put is of sufficient direct relevance to the facts in issue and to exclude it would be contrary to the interest of justice
When can the judge allow evidence under Section 88, 44, 87
address, character, occupation
Judge can grant permission if satisfied that the question to be put is of sufficient direct relevance to the facts in issue and to exclude it would be contrary to the interest of justice
