Evidence Act 2006 Flashcards
Questions to ask a Hostile Witness (L.I.M.O)
- Leading questions
- prior Inconsistent statements
- designed to probe accuracy of Memory or perception
- Other challenges to veracity, including evidence from other witnesses.
Define Circumstantial Evidence
Do not directly prove any fact in issue. Allow inferences about the existence of those facts to be drawn.
E.g. the defendant was seen in the vicinity of the crime scene.
Privilege - S59 Evidence Act 2006 - what does this relate to?
Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists.
Privilege Def.
In relation to evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
Name 2 Alternative Ways of giving evidence (V.A.C.O)
- Courtroom but unable to see the defendant
- Outside the courtroom
- Video Recording made BEFORE the hearing.
- Audio and Visual Link (AVL)
Woolmington v DDP - In relation to innocence.
The fundamental principle in criminal law is “the presumption of innocence”
The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
S85 Evidence Act 2006 (unacceptable questions). List 4 questions. M.U.R.I.C
The judge may disallow if considers improper, unfair, misleading, needlessly repetitive or too complicated for witness to understand.
Judge may have regard to:
- age/maturity of witness
- physical/intellectual/psychological impairment
- linguistic/cultural/religious beliefs
- the nature of the proceeding
- hypothetical question
Hearsay Def.
A statement
a) made by a person other than a witness and
b) is offered in evidence to prove the truth of its contents.
Weight of Evidence (its value in relation to the facts in issue)
3 factors (D.V.S)
- Directly relevant to those facts
- The Veracity of the witness
- Extent to which it is Supported or contradicted by other evidence
Presumption of Facts Def.
The mind naturally and logically draws up from the facts.
Always rebuttable.
E.g. presumes one has guilty knowledge if they have possession of stolen goods.
Two reasons hearsay statements are excluded
Two criteria for admissibility:
Unreliability and
Availability if witness to appear in court.
Purpose of Evidence Law S6 (a)-(f) EA2006
The act aims to “help secure the just determination of proceedings”
(a) LOGICAL RULES
facts to be established by the application of logical rules
(b) BILL OF RIGHTS
rules of Evidence that recognise the importance of the rights affirmed in the BOR1990
(c) FAIRNESS
promoting fairness to parties and witnesses
(d) CONFIDENTIALITY
protecting the rights of confidentiality and other important public interests
(e) AVOIDING DELAY
avoiding unjustifiable expense and delay
(f) ENHANCING ACCESS TO THE LAW
enhancing access to the law of evidence
S35(2) EA 2006 - (previous consistent statements) 3 exceptions
a) challenge a witnesses veracity or accuracy, based on a previous inconsistent statement
b) integral part of the events before the court
c) mere fact that a complaint has been made
Before a person is served with a summons to appear in court, verification must be made as to:
- Allowed
- Required
- Refuse
- Type of witness
- are allowed to give evidence
- are required to give evidence
- can refuse to give evidence
- what type of witness they will be
Conditions of re-examination
After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purpose of clarifying any issue raised during cross-examination, but may not be questioned on any other matter, except with permission of the judge.
Presumption of law - Def.
Inferences that have been drawn by law from particular facts.
May be conclusive or rebuttable.
E.g. child u10 is unable to be convicted
Hostile Witness - Def.
- Lack of veracity
- Inconsistent with statement
- Refuses to answer questions
- exhibits a lack of veracity when giving evidence unfavorable to the party who called the witness, which they may reasonably be supposed to have knowledge
- gives evidence that is inconsistent with a statement made by that witness, with an intention to be unhelpful
- refuses to answer questions or deliberately withholds evidence.
Standard of Proof - Prosecution
“Beyond reasonable doubt”
Standard of Proof - Defence
“Balance or probabilities”
Deciding whether evidence is admissible? R.R.U
Relevance - “Evidence that has a tendency to prove or disprove anything that is of consequence to the determination of proceedings”
Reliability
Unfairness - S8 test involves balancing the value vs risk of unfairly prejudicial effect on proceedings or prolonging the proceedings.
S8 - Exclusion of Evidence (unfairness)
(1) probative value is outweighed by the risk that the evidence will
(a) have an unfairly prejudicial effect on the proceeding, or
(b) needlessly prolong the proceeding.
Oath/Promise - S77 EA2006
Witnesses must still take an oath or make a promise to tell the truth.
S71 - all people are eligible and compellable to give evidence Subject to S72- 75.
E.g judge, jurors, defendant, governor General, bank officers
S77 - Under 12 Oath/Affirmation must:
- Be informed by the judge of the importance of telling the truth and not telling lies,
- After been given that information, make a promise to tell the truth, before giving evidence
Leading Questions
Directly or indirectly suggest a particular answer to the question
