Law of Evidence Flashcards
What is the ‘Woolmingham Principle?’
The presumption of innocence
Burden of proof lies with the prosecution
With regard to the Woolmigton Principle and the burden of proof, what is the ultimate question for the jury?
“The the prosecution proved their case?”
WHat are the offences call where the Woolmington Principle is seen simply to not apply?
Public Reglatory Welfare Offences
What is the standard of proof on a defendance where the burden on particular elements lies with them? eg Insanity defence
On the blanace of probablilities
(More probable that not)
What is ‘Reasonable Doubt?’
An honest and reasonable uncertainty left in your mind about the guilt of an accused
after
careful and impartial considerartion of all the evidence
What did the decision say about the standard of proof of ‘Beyond reasonable doubt’ in the R v Wanhalla direction?
“…at the end of the case you are sure the accused is guilty.”
Can the court accept the testimony of one witness without corroborating evidence?
Yes if sufficiently satisfied with its cogency
What two types of offences required corroborating evidence and more than just the testimony of one witness.
- Perjury and related offences
- Treason
(some other independant evidence is required)
WHen it comes to realiability of eyewitness evidence what are out memories prone to?
Clue: I,D,F
- incompleteness
- distortion
- forgetfulness
s.45 Admissibility of visual ID Evidence
According to s.45(4) what are “good reasons” for not following formal proceedure for gathering ID evidence? (6)
Clue: R,SA,SC,AID,IA,CM
- Refusal by subject to take part in ID proceedure
- Singular appearance of person
- Substancial change in appearance
- Did not antisipate ID would be an issue at trial
- ID made to officer immediately after event
- Chance meeting ID
s.45 Admissibility of visual ID Evidence
s.45(3) outlines what is ‘formal procedure’ for obtaining visual identification evidence. What are the seven points? (7)
Clue: A,7,NI,IP,R,PR,C
- ASAP after offence
- compare to 7 or more persons
- no indication to be given to witness
- inform person may or may not be in montage
- written record procedure (sworn true)
- pictorial record of montage (certified true)
- Comply with further requirements of s.201
What was said in relation to ‘Recognition ID Evidence’ in Harney v R?
Witness recognising person is not necessarily good reason to not do formal ID procedure.
Unless person was significantly know to person prior to alledged offending
Formal procedure may assist defence in highlighting element of unreliable ID
Each case need to be guaged
s.46 EA2006 relates to admissibility of voice identification evidence. What is the standard of proof required for this type of evidence to be admissable?
Balance of probabilities
(probably reliable)
What three sections in the Evidence Act 2006 can exclude a defendants statment
Clue: RR,OP,IOR
Reliability Rule (s.28)
Oppression Rule (s.29)
Improperly Obtained Evidence Rule (s.30)
The Reliability Rule
What are the two exceptions to the reliability rule that allow statements to be admitted?
- Producing statment to show physical, mental and psychological condition of defendant.
- offers to show only that statement was actually made
The Reliability & Opression Rule
s. 28(4) What four factors must the judge must consider and be satisfied when considering to apply the exception to the reliability rule or the Oppressive rule? (4)
- and to what standard of proof?
- physical, mental, psychological state of defendant at time statement taken
- characteristics of defendant (mental, intellectual, physical disabilities)
- Nature of question/manner the were put to defendant
- nature of any threat, promise, representation
“Balance of Probabilities”
Under s.29(5) what does the term ‘Oppression’ mean. (2)
Clue: OVI,TS
- Opressive, violent, inhuman OR degrading conduct towards or treatment of the defendant or another person
- a threat of the same
From whose perspective is ‘Oppression’ to be judged when considering the factors in s.29?
From the perspective of the defendant.
(The state of mind of the oppressor is irrelevant, they may be unaware, therefore oppression does not have to be calculated)
S.30(5) What is the definition of ‘Improperly Obtained?’ (3)
Clue: Evidence obtained: as consequence of, Breach,SI,UO
Evidence obtained:
- as consequence of breach of any enactment or rule of law by a person to whom s3 BORA 1990 applies
- as consequence of statement made by defendant that if was offered by prosecution would be inadmissable
- unfairly obtained
Improperly Obtained Evidence
What was stated about Improperly Obtained evidence in
R v Te Kira?
“…That there must be a real and substantive link between the violation and the obtaining of evidence.”
