Evidence generally

Question 1

What is the difference between inculpatory and exculpatory evidence?

Answer 1

Inculpatory evidence tends to incriminate

Exculpatory evidence tends to exonerate

Question 2

When will the Courts accept a person’s opinions as evidence?

Answer 2

Evidence Act 1995 (EA) s76 excludes opinion evidence from Court as a general rule.

There are two key exceptions:

1. Lay opinion (EA s78)
   this is where the opinion is:
   (i) based on what a person directly perceived about an event/matter, and
   (ii) is necessary to obtain an adequate account of the person’s perception of the event/matter
   e.g. ‘he looked drunk’ might be admissable, but only if based on specific observed facts
2. Expert opinion (EA s79) where the opinion is based wholly or substantially on specialist knowledge the person has as a result of training, study or experience.

Question 3

What is ‘an opinion’ for the purposes of evidence and admissability?

Answer 3

An opinion is an inference that is based on (but goes beyond) data or facts that have been directly observed with the five senses.

Question 4

What are the three different types of evidence?

Answer 4

1. Original - this is oral testimony from a witness, generally about things they directly perceived
   e.g. eyewitness testimony about an assault
2. Real - this is physical evidence
   e.g. a knife used in a robbery
3. Documentary - physical and digital records
   e.g. CCTV footage

Question 5

What are the steps involved in the the ‘A’ stage of the PEACE interview model when you are interviewing a suspect?

(clue: this is also known as the conversation management model)

Answer 5

ACCOUNT

Steps:
- suspect agenda: put the allegation to the suspect and let them provide their own account of where they were and what they were doing at the material time without challenge.

• police agenda: give the suspect the opportunity to provide an innocent explanation for inculpatory evidence in your possession (without revealing what that evidence is).
  e.g. if you have a fingerprint placing them at the scene, ask them if they have ever been to that location
• challenge: confirm the suspect’s version of events, then present them with evidence that is inconsistent with their version. Ask them how they account for this evidence.
• closing questions: ask the 6 closing questions.

Question 6

The hearsay rule outlines that hearsay evidence is generally not admissable at Court.

Where in legisaltion does this rule come from?

Answer 6

The Evidence Act 1995 s59 (‘the hearsay rule’) outlines that hearsay evidence is generally not admissable.

In simple terms, hearsay evidence is evidence provided by person A about something they heard from person B.

Question 7

What are the exceptions to the hearsay rule and where can these be found in legislation?

Answer 7

There are 8 key hearsay exceptions:

• s60 - hearsay for a non-hearsay purpose
  e.g. cop searches offender based on info from a member of the public, then repeats that (hearsay) info in Court to explain why they conducted the search
• s65 - first-hand hearsay where maker unavailable
  e.g. witness tells cop what they saw, but then dies/moves abroad before trial
• s66 - ‘corroboration’ or ‘identity of a person, place or thing’
  This exception allows person A to testify to what they heard from person B if:
  (i) person B was talking about events that were fresh in their mind at the time, and
  (ii) person B is also going to testify at trial to what they saw
• s66A - contemporaneous statements about a person’s health
  e.g. if a DV victim tells attending police that their partner hit them on the cheek and that it is still very sore, the police can repeat those words in court even if the victim chooses not to testify
• s69 - business records
  so long as these were produced in the normal course of business and not specifically for the trial.
• s70 - tags or labels
  e.g. if police see an empty bottle with a whiskey label on it, they can introduce this as evidence the bottle contained whiskey even though they don’t know this for sure.
• s71 - electronic communications
• s81 - admissions
  but only if provided after the person has been cautioned

NOTE: hearsay evidence which is deemed admissable for one of the above purposes is then admissable for any purpose.

Question 8

What is hearsay?

Answer 8

The colloquial definition is sufficient, and is: Information that a person knows because they were told about it by someone else, rather than because they perceived it first-hand with their senses.