Evidence Act Flashcards
32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
33 Evidence given by police officers
(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.
(2) Evidence may not be so given unless:
(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and
(b) the police officer signed the statement when it was made; and
(c) a copy of the statement had been given to the person charged or to the person’s Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.
(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer
114 Exclusion of visual identification evidence
(1) In this section:
visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2) Visual identification evidence adduced by the prosecutor is not admissible unless:
(a) an identification parade that included the defendant was held before the identification was made; or
(b) it would not have been reasonable to have held such a parade; or
(c) the defendant refused to take part in such a parade;
and the identification was made without the person who made it having been intentionally influenced to identify the defendant.
(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:
(a) the kind of offence, and the gravity of the offence, concerned; and
(b) the importance of the evidence; and
(c) the practicality of holding an identification parade having regard, among other things:
(i) if the defendant failed to cooperate in the conduct of the parade – to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case – to whether the identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.
(5) If:
(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present;
it is presumed that it would not have been reasonable to have held an identification parade at that time.
(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.
115 Exclusion of evidence of identification by pictures
(1) In this section:
picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
(3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if:
(a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and
(b) the picture of the defendant that was examined was made before the defendant was taken into that police custody.
(4) Subsection (3) does not apply if:
(a) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or
(b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody.
(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:
(a) the defendant refused to take part in an identification parade; or
(b) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or
(c) it would not have been reasonable to have held an identification parade that included the defendant.
(6) Section 114(3), (4), (5) and (6) apply in determining, for the purposes of subsection (5)(c) of this section, whether it would have been reasonable to have held an identification parade.
(7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:
(a) if the picture of the defendant was made after the defendant was taken into that custody – inform the jury that the picture was made after the defendant was taken into that custody; or
(b) otherwise – warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.
Note for subsection (7)
Sections 116 (Directions to jury) and 165 (Unreliable evidence) also deal with warnings about identification evidence.
(8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant.
(9) This section applies in addition to section 114.
(10) In this section:
(a) a reference to a picture includes a reference to a photograph; and
(b) a reference to making a picture includes a reference to taking a photograph.
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
139 Cautioning of persons
(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the person was under arrest for an offence at the time; and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b) the official would not allow the person to leave if the person wished to do so; or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if:
(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or
(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
