JP Flashcards
R v TURNBULL 1977
(1977) Amount of time under observation Distance from suspect or incident Visibility Obstructions Known or seen before Any reason to remember Time under observation/or since Errors or discrepancies
R v WALTON 1989
(1989) ID/hearsay Kid on phone says Hello Daddy Unintended purpose Kid wasn't trying to ID to persons in room Hearsay allowed
RP v Queen (2016)
(2016)
Doli incapax
Must rebut the presumption
Show the child knew it was wrong, not mere naughtiness
Investigate with school, home life, find out what they are taught, history of discipline for previous behaviour etc
Mundarra Smith 1999
1999 ID evidence of Police Must be better than the jury Spent significant amount of time with person or Show change of appearance
R v TAHERE (1999)
1999
Line up ID parades
Reasonableness.
Can be done any time up to the eve of the trial
Brown and Dunn (1893)
1893
If a party intends to call evidence that contradicts a witness, then you must put that evidence to that witness in the witness box during cross examination
R v ADLER (2000)
2000
Voice identification
Police or civilians can be ‘ad hoc’ experts for voice ID, to identify voices or content of what was said from TI or LD
R v PLEVAC (1991)
1991
Questioning of suspects
Can ask questions and put allegation to suspect, but must be fair and reasonable. Cannot continue to ask questions after suspect has refused multiple times. Not oppressive questioning.
Section 81 Evidence Act
Section 81 - Admissions
Hearsay rule and opinion rule do not apply to admissions
Section 82 Evidence Act
Section 82
First hand Hearsay
Given by person who saw, heard or otherwise perceived it or
It is a document in which an admission is made
Section 83
Exclusion of admissions against third parties
Section 84 Evidence Act
Exclusion of admissions influenced by violence or other conduct
Section 85 Evidence Act
Section 85
Evidence of admission not admissible unless it was made in circumstances which make it unlikely the truth was adversely affected
Section 86 Evidence Act
Section 86
Records of oral questioning of suspects
Not admissible unless the defendant has acknowledged that the document is a true record
Doli incapax
Section 5 of Children (Criminal proceedings) Act - under 10 cannot commit offence
Common law 10-14 does not possess the knowledge to have criminal intent
Rebut presumption
RP v Queen (2016)
Public interest immunity
Section 130 Evidence Act - PII
1. Protection of current or future investigations
2. Protection of confidential Police methodology
3. Protection of sources
Outweighed by public interest in preserving secrecy
Tendency s97
Section 97 Evidence Act Focus on person Inclination to do something Evidence of character, reputation or conduct of a person or tendency they had/have Significant probative value Give notice
Coincidence
Section 98 Evidence Act
2 or more events that are substantially similar and circumstances they occurred substantially similar
Give notice
Significant probative value
Restrictions on T&C
Section 101 Evidence Act
Probative value must outweigh the danger of unfair prejudice to defendant
Conspiracy
2 or more Incomplete act ACTUS REUS: Existence - Agreement by 2 or more Nature - unlawful act MENS REA: Intention to participate
Proven by Direct Evidence (admissions, TI/LD) or Circumstantial Evidence (overt acts)
s76 Opinion rule exceptions
s50 - summary of voluminous or complex documents
s77 - evidence relevant otherwise than opinion evidence
s78 - Lay opinion
s79- Expert opinion
s81 - Admissions
s59 Hearsay exceptions
s60 evidence relevant for non-hearsay purpose s65 - maker unavailable s66 - maker available s66A - contemporaneous statements about persons health 69 - business records 70 - tags and labels 71 - electronic communications 81 - Admissions
Lay opinion
Section 78 Direct evidence ID of individual Authorship of handwriting Apparent age of person Speed of vehicle State of weather Condition of road/premises Condition of goods Sobriety of person Health or emotional state
Expert opinion
Section 79
Opinion rule does not apply to expert evidence that is:
1. Specialised knowledge
2. Based on training, study, experience
3. Opinion given wholly or substantially based on that knowledge
Section 177 certificate must be served showing the above as well as name and address of person
Fairness
Sections 135 to 138
135 - discretion to exclude unfairly prejudicial evidence
136 - discretion to limit unfairly prejudicial evidence
137 - court must exclude if unfairly prejudicial
138 - court must exclude if illegally or improperly obtained
If prejudice outweighs probative
Section 114
ID parades and crowd scenes Unless ID parade already held Not reasonable to conduct ID parade Defendant refused ID parade
Section 115
ID by pictures
Photos held by Police
Can’t show that ppl are in custody or adversely known to Police ( Rogues gallery)
Can’t show older photos unless appearance has changed
Section 116
ID evidence is unreliable
Judge must give direction to jury that there is a special need for caution for ID evidence
Admission
Section 81 Evidence Act
Previous representation made by a person who is party to proceedings which is adverse to persons interest in proceedings
Prima facie
At first sight or On the face of it
No scrutiny or testing of the evidence has yet occurred
Whether protection has evidence to go toward each element of the charge
Relevance
Section 55
Any evidence which, if accepted, could rationally effect, either directly or indirectly, the assessment of a fact in issue in a case
Reliable
Section 165 ID evidence Evidence affected by age, health, etc Witness giving evidence which may incriminate themselves Prison informer Unsigned confession
Judge must warn jury it could be unreliable
Section 116
Judge must give direction to jury of special need for caution in accepting ID evidence as it is unreliable
Opinion rule exceptions
s50 summaries of voluminous or complex documents
s77 evidence of opinion relevant for purpose otherwise than proof of existence of fact of which opinion expressed
s78 Lay opinions
s79 Expert opinions
s81 Admissions
Section 281 Criminal Procedure Act 1986
Admissions by suspects in indictable offences not admissible unless:
- Tape recording was made
- Or reasonable excuse why tape recording wasn’t made
Accused person must be ‘reasonably suspected’ of committing offence
Section 89A Special Caution
Special caution s89A
Unfavourable inferences may be drawn if defendant failed or refused to mention a fact that, could have reasonably expected to mention in circumstances and that is relied upon in proceedings.
Must be given in presence of legal practitioner
After consulting with legal practitioner
Given before failure or refusal to mention the fact
Section 89
s89 (basic right to silence)
An unfavourable incidence must not be drawn from failing to answer questions or respond to a representation, except under section 89A
Spontaneous utterance
R v TAOUK (2005)
Male attended Police station to report disturbance. Stated he shot his brother. Brother had gun. TAOUK took it off him and fired a few shots.
Police officer could not have reasonably suspected the person had committed an offence.
Section 139 Evidence Act 1995
Evidence of statement made or act done by person during questioning is improper if person was not cautioned
