EXAM - MOST IMPORTANT

Question 1

What is Doli Incapax?

Answer 1

It is a REBUTTABLE PRESUMPTION that child aged between 10 to 14 years cannot be held CRIMINALLY LIABLE for their actions as they do not possess the MENS REA. However the prosecution can ARGUE that the child UNDERSTOOD what they had done was SERIOUSLY WRONG.

The evidence required to establish SERIOUSLY WRONG is dependant on their age and cognitive ability to understand. This is a SLIDING SCALE; more required the younger they are.

Question 2

What sections of the Evidence Act have we been notified are important for the DEP? And to what do they relate?

Answer 2

Evidence Act;
S33 - Police may give evidence led through statement.

S50 - Voluminous Documents.

S55 - Relevance.

S59 - Hearsay.
S60 - Hearsay for non-hearsay purpose.
S65 - Hearsay; Maker unavailable.
S66 - Hearsay; Maker available.

S76 - Opinion rule.
S78 - Lay opinion.
S79 - Expert opinion.

S81 - Admissions an exception to hearsay and opinions.

S84 - Mandatory exclusion (violence or threat)
S85 - Mandatory exclusion
(Capability to understand or inducement)

S97 - Tendency.
S98 - Coincidence.
S101 - Rules re Tendency and Coincidence.

S114 - Visual Identification Evidence.
S115 - Identification by pictures.

S138 - Improper/illegally obtained exclusions.

S139 - Cautions.

Question 3

Line up parades in accordance with section 114 of the Evidence Act are bound by the rules concerning VISUAL IDENTIFICATION EVIDENCE

What three points guide this type of evidence?

Answer 3

• You must always resort to this form of identification firstly, over a photo identification parade.
• This type of identification is generally regarded as being most reliable.
• Section 114 includes crowd scene and formal identification parades.

Question 4

Picture identification in accordance with section 115 of the Evidence Act are bound by the rules concerning PICTURE IDENTIFICATION EVIDENCE.

What three points guide the use of type of evidence?

Answer 4

(Note: the suspect must have refused an ID parade; their refusal must be ABSOLUTE; for this section to be admissible)

1) Picture identification cannot be used if; when the pictures were examined, the defendant was in custody and the photo used was made before the defendant was taken into custody.

2) The only exception is where the persons appearance has changed from the time of the offence to when they were taken into custody.
Or
3) Unless it was not reasonably practicable to take a photo while they were in custody.

Question 5

What are the two phases in which identification can occur?

Answer 5

DETECTION PHASE: The investigation phase where you don’t know the identity of the suspect. These processes give you a suspect so you can obtain a formal admissible ID in the evidentiary phase.

EVIDENTIARY PHASE: The attempts to obtain identification evidence by methods such as showing witnesses photos or line ups; including the known suspect. We are bound by the evidence act in this phase.

Question 6

Summarise the findings relating to Mundarra SMITH v Crowne?

Answer 6

Regarding the opinion of police to identify an offender from CCTV;

The court found that a police officer is in no better position than a member of the jury to identify an offender from CCTV or photographs.

The police officer’s identification evidence of Smith was not admitted.

Question 7

There are three types of suspect photos you can not use in a Photo Identification due to their improper EFFECT. What are they?

Answer 7

• Rogues Gallery Effect; photos that suggest the suspect is in police custody or adversely known to police.
• Displacement Effect; A person has previously been shown a picture or involved in another identification after the offence.
• Dock (in court) identification; highly unacceptable.

Question 8

Section 101 of the Evidence Act places a restriction on the use of Tendency and Coincidence evidence. What is that restriction?

Answer 8

Tendency and Coincidence evidence tendered by the prosecution - Cannot be used against the accused unless its (significant) probative value outweighs any prejudicial effect it may have on the accused.

This rule does not apply when the prosecution adduces the evidence to explain or contradict the accused’s tendency or coincidence evidence.

Question 9

Section 97(1) of the Evidence Act contains ‘The Tendency Rule’

What criteria must be met for Tendency evidence to be admissible?

Answer 9

1) Evidence of character, reputation, conduct and; tendency of a person.
(Person specific)

Not admissible unless:

1) (a) Reasonable notice is given to the other party in writing…
1) (b) Significant Probative Value!!!

Question 10

Section 98(1) of the Evidence Act contains ‘The Coincidence Rule’

What criteria must be met for Coincidence evidence to be admissible?

Answer 10

1) Evidence of similar circumstances in 2 or more events.
(Circumstance specific)

Not admissible unless:

1) (a) Reasonable notice is given to the other party in writing…
1) (b) Significant Probative Value!!!

Question 11

In accordance with section 50 of the Evidence Act 1995 what must happen for a court to accept a summary of voluminous or complex documents into evidence?

Answer 11

• the court may make such a direction if the party seeking to adduce the evidence in a summary has;
• served on each other party a copy of the summary with the name and address of the person who prepared it. And;
• given each other party a reasonable opportunity to examine or copy the documents in question.

Question 12

In accordance with Section 76 of the Evidence Act - Evidence of an opinion IS NOT admissible.

What are the three sections in the Evidence Act which are the exceptions to this rule?

Answer 12

Section 78 - Lay opinion

Section 79 - Expert opinion

Section 177 - Tendered Expert Certificate

Question 13

Section 78 of the Evidence Act refers to Lay opinion evidence.

What is required for Lay evidence to be admissible?

Answer 13

What is required for Lay evidence to be admissible?

Lay opinion may be admissible if the opinion is based on what a person saw, hears or otherwise perceived about an event (must be Direct Evidence)

And it must be necessary to obtain an adequate account or understand of that person’s perception.

Question 14

What are the show cause offences? (S16B Bail Act)

Answer 14

• Offence punishable by imprisonment for life
• SIO involving
  -Sexual intercourse person under 16years by person 18yrs or above
  
  • Actual bodily harm with intent to have sexual intercourse with person under 16yrs by person 18yrs and above.
• Serious person violence offence, or offence involving wounding or GBH , if accused is previously convicted of a SIO.
• Any of the following offences;
  
  • SIO under Part 3 (offences against the person) or 3A (Public order)
  • SIO under Firearms Act 1996
  • SIO under Weapons Prohibition Act
• Offence under DMTA 1985 involving; cultivation, supply, possession
  Trafficking
• Offence under part 9.1 if Commonwealth Criminal Code (serious drug offences)
• SIO whilst the accused is on bail or parole.
• Accused subject to supervision order and commits indictable offence.
• Attempts, assists, aiding, abetting to commit a SIO.
• SIO committed whilst the accused is subject to warrant issued under this act

Question 15

What is a Serious Indictable Offence?

Answer 15

Offences punishable by 5 or more years.

✋

Question 16

Section 281 of the Criminal Procedure Act 1986 relates to the requirements regarding admissions for all Table 1 and Strictly Indictable matters. In order to ensure their admissibility what must be done?

Answer 16

Admissions made by a defendant for a Table 1 or SIO offence must be electronically recorded.
(this can include audio or audio and video)

Unless the prosecution can satisfy a reasonable excuse as to why that electronic recording could be made. These include;

• Mechanical failure,
• Refusal by the person to be electronically recorded, and
• Lack of availability of equipment within a reasonable time period.

Question 17

What sorts of issues would make us consider Public Interest Immunity?

Answer 17

• Concerns re matters of national security
• Concerns re sensitive police intelligence
• Discloses the identities of police informants/sources
• Discloses the identity of a UC operative
• Discloses location of covert ops / surveillance
• Reveals police methodologies/technology
• Compromises or jeopardises ongoing police investigations or operations
• Discloses the identity and whereabouts of a witness in danger

Question 17

Is an admission an exception to the hearsay rule?

Answer 17

YES - Section 81 evidence act - exceptions to the hearsay rule.

Suspect to Officer -, ‘i killed her.’

But for section 81, that representation would be hearsay if we wanted to rely on the officer to give evidence of it to assert the truth of its contents.

Question 18

How do you respond to a Subpoena?

Answer 18

1) Identify which items fall within that schedule.
2) (if no legal objection) Comply and produce documents to RELEVANT COURT OF ISSUE.

(Unless it is a civil matter with NSWP as defendant; reply to subpoena unit)

OR

3) Raise an objection; as per the criteria of Public interest immunity or Legitimate Forensic Purpose. And submit report outlining why to subpoena unit.

OR

4) Serve part of the material and object to the rest.

Question 19

In accordance with Section 33 of the Evidence Act, what can police do?

Answer 19

Read their statement onto record or be lead through their statement by the prosecutor.

Question 20

What is ‘Probative Value’?

Answer 20

It is a measurement of relevance. It is a judgement of the degree of relevance. Something that has a high degree of evidentiary weight will have a high degree of Probative Value.

Question 21

What is a ‘Prejudicial Effect’?

Answer 21

It means the improper effect the evidence may have on the jury.

Question 22

What does the term, ‘No bill” mean?

Answer 22

A ‘no bill’ is formal notification by the Crown that it does not intend to proceed with specific charges because:
- Evidence is NOT SUFFICIENT to establish each element of the offence.

• No reasonable PROSPECT OF CONVICTION by a reasonable jury properly instructed as to the law.
• There are discretionary reasons it would not be in the PUBLIC INTEREST to continue with the proceedings.

Question 23

In regards to evidence subject to a S138 Evidence application to exclude, what 2 part process must the court consider in deciding whether to include or exclude the evidence?

Answer 23

Part 1: The party seeking to exclude the evidence argues that the evidence was improperly or illegally obtained.
If the court finds it improperly or illegally obtained; they consider Part 2

Part 2: The court must consider;

• Probative value of the evidence
• The importance of the evidence to the case
• The gravity of the impropriety or contravention
• Whether the impropriety or contravention was contrary to UN civil or political rights
• whether any other proceeding has or is likely to be taken regarding the impropriety or contravention
• the difficulty of obtaining the evidence without the impropriety or contravention

Question 24

What does the term ‘ex-officio’ indictment mean?

Answer 24

Where the DPP charge indictable offences for which there has been no committal, or initiates proceedings in the District court that have been discharged at Committal.

Question 25

What is the ‘Tribunal of Fact’?

Answer 25

The Jury

Question 26

What is the ‘tribunal of law’?

Answer 26

The Judiciary

Question 27

What does the term ‘indemnity’ mean?

Answer 27

Refers to an agreement NOT to prosecute. Granted by the Attorney General.

Question 28

What is an ‘undertaking’?

Answer 28

It is a promise by the Crown not to use an answer, statement or disclosure as evidence in a proceeding against an individual. Granted by the Attorney General.

Question 29

What is Circumstantial evidence?

Answer 29

Evidence which establishes a FACT by INFERENCE or INDIRECTLY

Question 30

What is ‘Direct Evidence’?

Answer 30

Evidence that establishes a FACT itself WITHOUT REFERENCE to any other FACT.

Question 31

What is ‘Facts in issue’?

Answer 31

The facts in issue in a criminal hearing: Are the proofs of the offence.

Question 32

What is Relevant evidence? (S55 evidence act)?

Answer 32

Evidence is relevant if it directly or circumstantially can prove the likelihood as to the existence of one or more proofs of an offence.

Question 33

What is ‘reliability?

Answer 33

Reliability: is a measure of accuracy: Evidence that is reliable is more likely to be associated with the truth.

Question 34

What is ‘Fairness’?

Answer 34

Fairness incorporates preventing a miscarriage of justice and is concerned with maintaining the integrity of the hearing.

Question 35

What is a ‘prejudicial effect’?

Answer 35

It means the improper effect the evidence may have on the jury.

Question 36

What does the term ‘double jeopardy’ mean?

Answer 36

As a general principle of law nobody can be punished again for the same matter, it can be argued at all stages of the criminal judicial process; including - prosecution, conviction and punishment.

Question 37

What is a ‘Voire dire’?

Answer 37

It is a hearing to determine the admissibility of evidence, or the competency of a witness or juror.

Question 38

What is an ‘abuse of process’?

Answer 38

The court’s procedures have been invoked for an improper purpose, or have been unjustifiably oppressive to one of the parties, or have brought the administration of Justice into disrepute.

Question 39

What is a ‘Committal Proceeding’?

Answer 39

It is an enquiry at the local court to establish whether the prosecution has a reasonable prospect of conviction on available evidence before an indictable matter is referred to the district or supreme court for trial.
(prima facie case)

Question 40

In order to call evidence under section 66 evidence act, ‘maker available’, what must you prove?

And what effect does it have at court?

Answer 40

• The maker is available.
• The maker will be called in the proceedings.
• Memory was fresh at the time of making.
• Perceived first hand by witness.

Effect at court: Another witness who had a conversation with that person (maker) can give hearsay evidence relating to the identification of a person, place or thing; as identified by that person (maker)

Question 41

What is Hearsay in accordance with Section 59 of the Evidence Act?

Answer 41

59)(1) evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

Question 42

In order to call evidence under section 65 evidence act, ‘maker unavailable’, what must you prove?

And what effect does it have if accepted at court?

Answer 42

• The maker is unavailable.
• Comply with notification service requirements as per Section 67.
• Show all reasonable attempts to have the witness attend.
• The evidence must of been perceived first hand by this witness.

If accepted: Available witness can give evidence of their initial conversation with the unavailable person.

Question 43

How does section 60 of the Evidence act, ‘hearsay for non hearsay purpose’ apply?

Answer 43

Section 60 - ‘Hearsay for non-hearsay purpose applies where we wish to use a previous representation NOT to prove the existence of a fact but for another purpose.
(such as reasonable suspicion for searches etc)

Question 44

What must a person have to be qualified as an expert in accordance with Section 79 of the Evidence Act?

Answer 44

The person has specialised knowledge based on the person’s training, study or experience The;

The opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.