Evidence May 2023 Flashcards
R v. Hayden & Slattery
Definition of hostile witness. A hostile witness is one who is unwilling to tell the truth in the interests of justice
What step may a Court take if there are concerns a jury may give undue weight to a statement admitted into evidence?
Direct that the statement be withheld from the jury room. s 99
What is the first principle of the law of evidence?
All information must be relevant before it’s admissible, but not all information which is relevant will be admissible.
What is the definition of relevance and to what degree is the evidence required to satisfy admissibility?
Where evidence alone, or in conjunctions with other facts - and having regard to the common course of events - tends to prove a fact in issue (Stephen’s digest)
Sufficient relevance exists when the tendered evidence adds or detracts from a fact in issue (R v. Stephenson).
In what circumstances may a party not lead evidence?
If a fact is presumed; if the other party has made an admission.
What are the four issues at play during examination in chief?
Leading questions, refresh memory, previous consistent statements, unfavourable & hostile witnesses.
What are the consequences of not following the rule in Browne v Dunn? (5) and how is the common law rule applicable in a CTH matter
- Witness may be recalled (housed in s 46 of the EA CTH);
- trial judge may warn the jury that the allegation was never tested;
- trial judge may restrict counsel’s submissions;
- on appeal, matters not tested under cross may be disregarded.
- judge may disallow the question.
Applicable in a CTH matter via s 9.
Give an example example of an irrebuttable presumption of law and two examples of a rebuttable presumption of fact.
- Doli incapax (of law) - child between 10-14 does not have the necessary knowledge to possess criminal intent.
- Sanity and presumption of death after 7 years (of fact).
- s 79(2) evidence of a conviction in civil proceedings.
What will a trial judge do if it is disputed that a confession in police custody was even made?
Give a McKinney direction. Jury will be directed to look for some corroborating evidence that the confession was made. Not common because all interviews are recorded nowadays.
When can a witness use a document to refresh their memory?
Not unless, the witness has shown:
1. the witness needs to do so.
2. the document was compiled when the facts were fresh in their memory.
3. the witness can confirm that it is accurate (that it is her statement).
The document does not itself become evidence
Define continuance and state the leading authority (2 x authorities).
A convenient way of drawing inferences from established facts using logic and reasoning (R v. Noonan).the existence of facts at a particular time justifies the inference that facts took place at a later time (McHugh v Minister of immigration)
Why are informal admissions an exception to the hearsay rule? And, are there any exceptions to the rule?
Because what a person is prepared to admit, contrary to their interests, may reasonably be presumed to be true (Slatterie v. Pooley). Exception: a co-accused’s out of court statement is not an admission against their co-accused (R v. Spinks).
What is the preferred form of identification? What are alternatives if the preferred form is not available?
Identity parade (Alexander v. R). Where the accused declines a parade or where it’s not reasonably practicable to conduct one, alternative forms might be photoboard, videotape or computer generated image. Police should avoid showing the witness a photo of the defendant only.
How is evidence produced by a device or process admitted into evidence?
A certificate signed by the person responsible for the process or device is evidence s 95.
Where has Longman been codified?
s 132BA
State five common reasons why expert evidence is excluded.
- the expert is in no better position than a lay person to form a view (within the general knowledge of the community Farrell v. R); or,
- if the evidence is not based on an organised body of sound knowledge (witness is a charlatan);
- expert is asked to decide the ultimate issue (O’Brien v Gillespie).
- opinion is based on inadmissible hearsay.
- there must be a direct and logical connection between some relevant proven fact and the expertise of the witness (Dasreef).
Is there a difference between a hostile witness and an unfavourable witness?
Yes, an unfavourable witness is one who fails to prove a fact while a hostile witness is one who is unwilling to tell the truth in the interests of justice (R v. Hayden & Slattery).
What is the definition of a leading question and what are four exceptions to the rule?
One which suggests a desired answer or assumes a disputed fact (Stephen’s digest). Yes, witness with specialised knowledge, introductory to witness, ID of persons, matters not in dispute.
What are exceptions to the general common law rule (in criminal cases) that whoever bears the legal burden also bears the evidential burden. What is the standard which any exceptions must be proved
The accused bears the legal burden (Sodeman v R) on statutory defences i.e., insanity, which must be discharged on the balance of probabilities (R v Carr-Briant).
In respect to all other defences (where the Crown retains the legal burden), the accused will bear the evidential burden (R v Lavaele) in respect to that defence, which the Crown must disprove beyond reasonable doubt.
Can an adverse inference be drawn from a failure to give evidence in criminal proceedings?
In rare and exceptional cases, when the evidence is peculiarly within the knowledge of the accused (Weisensteiner). Generally however, juries should not be invited to speculate about what a witnesses might have said (Dyers v R).
McIver v McKenzie
Best evidence rule. The original of a private document must be produced unless its absence can be explained.
What are 4 different forms of ID evidence?
Visual, voice, touch, smell.
R v. Noonan
Presumption of continuance. A convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts.
If proof of authority, handwriting, documents or identity, is a fact in issue, how can such a matter be proved?
Any way the Crt directs s 129A.
State the differences between ss 17, 18 and 19 of the QLD EA.
s 17 relates to hostile witnesses
s 18 prior inconsistent statements in cross
s 19 prior inconsistent statements in cross in writing.
What is the degree of proof required in civil and criminal cases?
In civil - balance of probabilities - burden of showing odds of at least 51 to 49 (Davies v Taylor).
In criminal - beyond reasonable doubt (Woolmington v. DPP).
State the principle relating to the finality rule and the exceptions.
Answers to questions relating to collateral facts are final (Piddington v Bennett & Wood). Collateral facts are facts which are not directly in dispute (the go to credibility as a person not as a witness), while material facts attach consequences or require a defence (Goldsmith v Sandilands).
The exceptions are:
- if a witness is bias (R v. Umanski);
- prior inconsistent statements (McLellan v. Bowyer);
- prior convictions; or,
- made misrepresentations under oath (not a witness of truth (veracity)).
Anchor Products v. Hedges is authority for what (explain how it works)
res ipsa loquitur. When something dangerous is under the control of one party, and it malfunctions and causes injury, then it “speaks for itself” that the party in charge must be negligent.
R v. Stephenson
Sufficient relevance exists when the tendered evidence adds or detracts from a fact in issue.
Is evidence of a conviction admissible in civil proceedings?
Yes, s 79.
