Law of Evidence

Question 1

What is the ‘Woolmingham Principle?’

Answer 1

The presumption of innocence

Burden of proof lies with the prosecution

Question 2

With regard to the Woolmigton Principle and the burden of proof, what is the ultimate question for the jury?

Answer 2

“Has the prosecution proved their case?”

Question 3

What are the offences called where the Woolmington Principle is seen simply to not apply?

Answer 3

Public Welfare Reglatory Offences

Question 4

What is the standard of proof on a defendance where the burden on particular elements lies with them? eg Insanity defence

Answer 4

On the blanace of probablilities

(More probable that not)

Question 5

What is ‘Reasonable Doubt?’

Answer 5

An honest and reasonable uncertainty left in your mind about the guilt of an accused

after

careful and impartial considerartion of all the evidence

Question 6

What did the decision say about the standard of proof of ‘Beyond reasonable doubt’ in the R v Wanhalla direction?

Answer 6

“…at the end of the case you are sure the accused is guilty.”

Question 7

Can the court accept the testimony of one witness without corroborating evidence?

Answer 7

Yes if sufficiently satisfied with its cogency

SF: cogency means - clear, logical & convincing

Question 8

What two types of offences required corroborating evidence and more than just the testimony of one witness.

Answer 8

• Perjury and related offences
• Treason

(some other independant evidence is required)

Question 9

When it comes to realiability of eyewitness evidence what are our memories prone to?

Clue: I,D,F

Answer 9

• incompleteness
• distortion
• forgetfulness

Question 10

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

Answer 10

• Refusal by subject to take part in ID proceedure
• Singular appearance of person
• Substancial change in appearance
• Did not anticipate ID would be an issue at trial
• ID made to officer immediately after event
• Chance meeting ID

Question 11

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

Answer 11

• ASAP after offence
• compare to no fewer than 7 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

Question 12

What was said in relation to ‘Recognition ID Evidence’ in Harney v R?

Answer 12

Witness recognising person is not necessarily good reason to not do formal ID procedure.

Unless alleged offender was significantly known to witness prior to alledged offending

Formal procedure may assist defence in highlighting element of unreliable ID

Each case need to be guaged

Question 13

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?

Answer 13

Balance of probabilities

(probably reliable)

Question 14

What three sections in the Evidence Act 2006 can exclude a defendants statement

Clue: RR,OP,IOR

Answer 14

Reliability Rule (s.28)

Oppression Rule (s.29)

Improperly Obtained Evidence Rule (s.30)

Question 15

The Reliability Rule

What are the two exceptions to the reliability rule that allow statements to be admitted?

Answer 15

• Producing statement to show physical, mental and psychological condition of defendant.
• offers to show only that statement was actually made

Question 16

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?

Answer 16

• 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”

Question 17

Under s.29(5) what does the term ‘Oppression’ mean? (2)

Clue: OVI,TS

Answer 17

• Oppressive, violent, inhuman OR degrading conduct towards or treatment of the defendant or another person
• a threat of the same (above)

Question 18

From whose perspective is ‘Oppression’ to be judged when considering the factors in s.29?

Answer 18

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)

Question 19

S.30(5) What is the definition of ‘Improperly Obtained?’ (3)

Clue: Evidence obtained: as consequence of, Breach,SI,UO

Answer 19

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

Question 20

Improperly Obtained Evidence

What was stated about Improperly Obtained evidence in

R v Te Kira?

Answer 20

“…That there must be a real and substantive link between the violation and the obtaining of evidence.”