Law Of Evidence In Criminal Proceedings Three Flashcards
What must the judge consider in relation to statement reliability under section 28?
Physical, mental, psychological condition of the defendant. Mental intellectual or physical disability. Nature and manner of questions and any threat promise or representation made to the defendant or any other person
Outline section 29 exclusion of statements influenced by oppression
If defendant or co-defendant raises, with evidential foundation, whether the statement was influenced by oppression or the judge raises the issue, and the prosecution is informed, the judge must exclude unless satisfied beyond reasonable doubt the statement was not influenced by oppression. It is irrelevant whether the statement is true.
What must the judge take into consideration when considering oppression under section 29?
Any physical mental or psychological condition of the defendant or any mental intellectual or physical disability. Also the nature manner and circumstances of any questions put and any threat promise or representation made to the defendant or any other person.
What is the definition of oppression under section 29?
Oppressive, violent, inhumane, degrading conduct or a threat of conduct or treatment of that kind to the defendant or another person
From whos perspective is oppression judged?
The defendants. The alleged oppressor may be unaware that their behaviour is oppressive and conduct or treatment not objectively oppressive, violent, inhumane or degrading may be deemed oppressive because of some quality of the defendant
Outline section 30 improperly obtained evidence
If defendant or co-defendant raises, with evidential foundation, whether the evidence was improperly obtained, or the judge raises the issue with the prosecution, if on balance of probabilities the judge finds impropriety, the judge must balance impropriety against the need for an effective and credible system of justice
What must the court have regard to when considering section 29?
The importance of any right breached, whether it was deliberate reckless or in bad faith, nature and quality of evidence, seriousness of offence, other investigatory techniques available but not used, alternative remedies to exclusion, impropriety needed to avoid danger, any urgency.
What is improperly obtained evidence?
Evidence obtained in consequence of a breach of the bill of rights, inconsequence of an inadmissible statement, or unfairly
Explain the doctrine of inevitable discovery
Although the breach lead directly to the discovery of evidence, the effects of the breach should be ignored because the evidence would have been discovered quite lawfully anyway
What is section one of the judges rules?
Police may ask questions of any person but must not suggest it is compulsory for the person questioned to answer
What is section 2 of the judges rules?
When police have evidence to charge a person or seek to question a person in custody the person must be cautioned that they can refrain from making a statement, consult and instruct a lawyer, and that anything they say will be recorded and may be given in evidence.
What are sections three, four and five of the judges rules?
Questions must not amount to cross-examination, questions about statements made by others or about evidence must be fairly explained, statements should be by video or audio tape or in writing signed as correct with nothing further to add
Outline section 45 admissibility of visual identification evidence
If a formal procedure was followed or there was good reason not to, evidence is admissible unless the defendant proves on balance of probabilities the evidence is unreliable. If a formal procedure was not followed for no good reason the evidence is inadmissible unless proved beyond reasonable doubt the identification is reliable
What are the requirements of a formal identification procedure?
As soon as practicable, seven other similar persons, no indication given, subject may or may not be among the persons present, a written record sworn to be true, a pictorial record certified.
What are the good reasons for not following a formal procedure?
A refusal to take apart or permit a photograph and no existing photograph exists, singular appearance, change in appearance since the offence, no reasonable anticipation identification would be an issue, identification soon after the offence, identification from a chance meeting.
Outline section 46 admissibility of voice identification evidence
Voice evidence is inadmissible unless the prosecution proves on the balance of probabilities the circumstances have produced a reliable identification
Outline section 126 warning about identification evidence
In that case depending wholly or substantially on one or more visual or voice identification the judge must warn the jury of the special need for caution. The judge must warn a mistake in identification can result in serious miscarriage of justice, a mistaken witness may be convincing, and more than one identification witness may all be mistaken
Outline section 23 opinion rule
A statement of opinion is not admissible except as provided by section 24 or 25
Outline section 24 general admissibility of opinions
A witness may state an opinion if necessary to enable the witness to communicate or the fact finder to understand what the witness saw heard or otherwise perceived. Fact and inference cannot readily be separated on occasion
Outline section 25 admissibility of expert opinion evidence
Expert opinion is admissible if substantially helpful in understanding other evidence, expert opinion is not inadmissible because it is about an ultimate issue or matter of common knowledge, expert opinion outside the general body of knowledge must be proved or judicially noticed, a statement evidencing sanity is admissible and an exception to hearsay and previous consistent statements rules.
What are the principles applicable in all cases where expert evidence is called?
Qualifications must be stated, facts must be stated explicitly, reasons for opinions must be stated explicitly, literature relied upon must be referred to, evidence must not be given outside the experts area of expertise, experts must be impartial and not advocate for any party
In what circumstances can expert evidence falling within common knowledge still be helpful?
Research findings maybe counter intuitive, there may be a need to dispel commonly held maths, it may be helpful to explain and supplement ordinary knowledge in a given area
What notice must the defence give of expert evidence in criminal proceedings?
They must disclose the brief of evidence or report or a summary at least 10 working days before the hearing or trial
Outline section 28 exclusion of unreliable statements
If the defendant or co-defendant raises, with an evidential foundation, the reliability of the statement, or the judge does, and advises the prosecution, the statement is excluded unless on balance of probabilities the circumstances did not adversely affect its reliability. Exception if of defendants condition or just whether made.
