ID evidence (week 5)

Question 1

what is legal burden?

Answer 1

the party who is trying to prove something must prove it

Question 2

what is the evidential burden?

Answer 2

a party needs to raise some evidence to satisfy the judge that the matter should be argued before the jury

Question 3

what is the burden standard of proof?

Answer 3

beyond reasonable doubt

Question 4

what are the Turnbull guidelines?

Answer 4

provides guidance to judges when there is a contested visa ID evidence.

Question 5

when should Turnbull guidelines be used?

Answer 5

when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual ID and the ID evidence is disputed by the defence

Question 6

when is Turnbull not required?

Answer 6

if presence at the scene is admitted but D disputes their role in the incident

Question 7

what is ADVOKATE for assessing quality of visual ID evidence?

Answer 7

A: amount of time under observation
D: distance
V: visibility
O: obstruction
K: known or seen before
A: any reason to remember
T: time lapse
E: error or material discrepancy

Question 8

what is the test for allowing a submission of no case to answer?

Answer 8

whether there is sufficient information for a jury to properly convict

Question 9

what are the 3 elements in a Turnbull warning?

Answer 9

1. the reason for the warning (honest witnesses can be mistaken)
2. direct jury to examine circumstances which ID by each witness came to be made
3. remind jury of any specific weaknesses in ID evidence

Question 10

what happens if the judge decides the witness evidence for ID is so weak it would lead to an unsafe conviction?

Answer 10

judge will withdraw case from the jury and direct jury to acquit the D.

Question 11

if Judge concludes confession is admissible can prosecute adduce it?

Answer 11

yes prosecution are entitled to adduce the confession

Question 12

can a D raise issues of oppression, unreliability, or unfairness before a jury if confession is admissible?

Answer 12

yes they can do it before a jury for them to decide whether to rely on the confession or not

Question 13

when does an advance notification for excluding a confession need to be done in the magistrates court?

Answer 13

any defence skeleton argument in support at least 14 days before trial and prosecution response 7 days after that

Question 14

when should an application of excluding a confession be dealt with in magistrates court?

Answer 14

should be dealt with as a preliminary issue

Question 15

when does an advanced notification for excluding a confession in the crown court need to be done?

Answer 15

generally at the PTPH, judge is likely to order, when the defence is to serve a skeleton argument in support of any s76/s78 arguments, when prosecution serve a response and when arguments will be heard.

Question 16

when should an application to exclude a confession be done at the crown court?

Answer 16

can be made at a pre-trial hearing listed specifically for this purpose or dealt with just prior to opening the case to the jury (and in absence of a jury)

Question 17

for a defence in self-defence, who does the burden lie on?

Answer 17

burden lies on prosecution to prove he did not act in self-defence and prove this beyond reasonable doubt.