Evidence Act 2006

Question 1

Questions to ask a Hostile Witness (L.I.M.O)

Answer 1

• Leading questions
• prior Inconsistent statements
• designed to probe accuracy of Memory or perception
• Other challenges to veracity, including evidence from other witnesses.

Question 2

Define Circumstantial Evidence

Answer 2

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.

Question 3

Privilege - S59 Evidence Act 2006 - what does this relate to?

Answer 3

Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists.

Question 4

Privilege Def.

Answer 4

In relation to evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

Question 5

Name 2 Alternative Ways of giving evidence (V.A.C.O)

Answer 5

1. Courtroom but unable to see the defendant
2. Outside the courtroom
3. Video Recording made BEFORE the hearing.
4. Audio and Visual Link (AVL)

Question 6

Woolmington v DDP - In relation to innocence.

Answer 6

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.

Question 7

S85 Evidence Act 2006 (unacceptable questions). List 4 questions. M.U.R.I.C

Answer 7

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

Question 8

Hearsay Def.

Answer 8

A statement
a) made by a person other than a witness and
b) is offered in evidence to prove the truth of its contents.

Question 9

Weight of Evidence (its value in relation to the facts in issue)
3 factors (D.V.S)

Answer 9

1. Directly relevant to those facts
2. The Veracity of the witness
3. Extent to which it is Supported or contradicted by other evidence

Question 10

Presumption of Facts Def.

Answer 10

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.

Question 11

Two reasons hearsay statements are excluded

Answer 11

Two criteria for admissibility:
Unreliability and
Availability if witness to appear in court.

Question 12

Purpose of Evidence Law S6 (a)-(f) EA2006

Answer 12

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

Question 13

S35(2) EA 2006 - (previous consistent statements) 3 exceptions

Answer 13

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

Question 14

Before a person is served with a summons to appear in court, verification must be made as to:
- Allowed
- Required
- Refuse
- Type of witness

Answer 14

• are allowed to give evidence
• are required to give evidence
• can refuse to give evidence
• what type of witness they will be

Question 15

Conditions of re-examination

Answer 15

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.

Question 16

Presumption of law - Def.

Answer 16

Inferences that have been drawn by law from particular facts.
May be conclusive or rebuttable.
E.g. child u10 is unable to be convicted

Question 17

Hostile Witness - Def.
- Lack of veracity
- Inconsistent with statement
- Refuses to answer questions

Answer 17

• 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.

Question 18

Standard of Proof - Prosecution

Answer 18

“Beyond reasonable doubt”

Question 19

Standard of Proof - Defence

Answer 19

“Balance or probabilities”

Question 20

Deciding whether evidence is admissible? R.R.U

Answer 20

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.

Question 21

S8 - Exclusion of Evidence (unfairness)

Answer 21

(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.

Question 22

Oath/Promise - S77 EA2006

Answer 22

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

Question 23

S77 - Under 12 Oath/Affirmation must:

Answer 23

• 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

Question 24

Leading Questions

Answer 24

Directly or indirectly suggest a particular answer to the question

Question 25

Corroboration - two types of offences in which the unsupported evidence of one witness is insufficient to support conviction.

Answer 25

Perjury S108 CA 1961
Treason - S73 CA 1961

Question 26

The Opinion Rule (Justification)
“Opinion - a statement of Opinion that tends to prove or disprove a fact” not admissible

Answer 26

To prevent unreliable, misleading evidence
The justification rule include:
- witness opinion holds little weight
- danger the witness opinion will “usurp” the function of the tribunal causing confusion.
- opinion based on evidence that would be inadmissible

Question 27

Opinion Evidence - Admissible

Answer 27

S24 - non expert opinion must be the only way to effectively communicate the information.
S25 - expert opinion evidence may consist of fact, opinion or a mixture

Question 28

“Hearing in chambers”

Answer 28

S15 - evidence given by a witness to prove facts that some other evidence should be admitted in a proceeding.

Facts determine at a hearing in chambers can be referred to ‘preliminary facts’, or ‘preliminary hearing’

Question 29

S59 EA 2006 - what does this relate to?

Answer 29

Privilege for information obtained by medical practitioner and clinical psychologists.

Question 30

Defence having “evidential burden” means?

Answer 30

The defendant may wish to put up a Defence once the prosecution have proven all elements. E.g self Defence.

Live issue - the Defence cannot be left to the jury or judge unless it is made a live issue by the Defence.
The prosecution must destroy the defence because the burden of proof still lies with prosecution.
The question is “has the prosecution proved its case?”

Question 31

R v Wanhalla “beyond reasonable doubt”

Answer 31

After reviewing overseas research and models, reasonable doubt is
“An honestly and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence”

Question 32

Role of judge in a jury trial

Answer 32

He must:
- Decide all questions concerning the admissibility of evidence.
- explain and enforce the general principles of law applying to the point at issue
- instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Question 33

What must you consider under S16(1) of the Evidence Act 2006 in relation to statement? (Not witness)

Answer 33

• nature of the statement
• content of the statement
• circumstances relating to the making of the statement
• circumstances relating to the veracity of the person making the statement
• circumstances relating to the accuracy of the observation or person making the statement.

Question 34

What must you consider under S16(1) of the Evidence Act 2006 in relation to statement? (Not witness)

Answer 34

• nature of the statement
• content of the statement
• circumstances relating to the making of the statement
• circumstances relating to the veracity of the person making the statement
• circumstances relating to the accuracy of the observation or person making the statement.