Laws of Evidence

Question 1

A. What is the Burdon of Proof?

B. Where does it lie?

Answer 1

A. The presumption of innocence (Woolmingtons principle)

B. “Burdon of Proof lies with the prosecution”

Question 2

What is the “Evidential Burdon” on the defence?

Answer 2

Defence obligation to prove an explanation without which the prosecution has proved its case. “the obligation to raise an issue at trial”

Question 3

Are there exceptions to Woolmingtons principal?

Answer 3

Yes. Insanity, suicide pacts, Identification evidence S45(1), Maritime and Aviation safety are examples of the reverse burden of proof.

Question 4

What is the “Standard of Proof”?

Answer 4

The standard required to discharge:
Prosecution - Beyond reasonable doubt
Defence “Balance of Probabilities.

Question 5

Describe “beyond reasonable doubt”.

Answer 5

“A very high standard of proof” met if the jury is sure the defendant is guilty.

Question 6

What is the balance of probabilities

Answer 6

“That it was more probable than not”.

Question 7

Is one persons testimony unsupported by other evidence sufficient to prove a case?
Exceptions (2)

Answer 7

Yes. There are exceptions: Perjury and Treason.

Question 8

What is the definition of Identification Evidence as it pertains to S45 Evidence act? (4)

Answer 8

1: Saw or heard
2: Person alleged to have committed offence
3: At or near place
4: Commission of offence (or written or oral account of above).

Question 9

s 45(2) Is an informal identification process admissible?

Answer 9

only if there is a GOOD REASON (s45(4)) for not following a formal procedure. Otherwise if no good reason Prosecution must prove beyond reasonable doubt circumstances in which it was made produced reliable identification.

Question 10

How many images in a formal ID?

Answer 10

8

Question 11

s 45(4) What Good Reasons are there for NOT following formal ID? (6)

B. What is the admissibility of identification evidence if a Good reason is obtained?

Answer 11

1. Suspect refuses and no photo available
2. Singular appearance
3. Substantial changes in appearance (since offence)
4. ID was not (reasonably expected to be) in question
5. ID made shortly after offence (ie to Police during initial investigation)
6. Identification by chance

B. If prosecution can find good reason then evidence admissible under 45(1). Otherwise needs to prove beyond reasonable doubt that the ID evidence is reliable.

Question 12

Who can conduct an ID procedure?

Answer 12

“Officers of an enforcement agency” (Customs, MPI…)

Sgt or above. O/C case can be present but not take part in proceedings

Question 13

Who can be the subject/target of identification evidence pursuant to s45?

Answer 13

Only to a person alleged to have committed an offence.

Question 14

What is the purpose of S45 (what is it intended to prevent)?

Answer 14

To prevent dock identification as the first time identified. (Unreliable).

Question 15

What constitutes a formal ID procedure (8)

Answer 15

1. ASAP after offence
2. Eight people, Similar appearance
3. Police staff not to be used
4. No coaching witness. Witness not to see suspect before placed into parade
5. Written record of procedure followed sworn for Judge/Defendant (not jury) by officer conducting
6. Copy of pictorial record certified for Judge/Defendant (not jury)
7. Different participants for different parades
8. Suspect MUST be advised: Not compulsory;
   can have lawyer present.

Question 16

S45(1) A.If a formal ID procedure is followed how can defence challenge it’s admissibility
B. What can they challenge? (2)

Answer 16

A. Prove on Balance of Probability it was not reliable (reverse burden of proof).
B. Can challenge both way ID was undertaken and reliability of the witness

Question 17

S45(2) how will identification evidence be admissible if no formal procedure or Good Reason established.

Answer 17

Prosecution must prove beyond reasonable doubt that the circumstances in which ID was made produced reliable identification

Question 18

Re section 4 & 46 Evidence Act. What are the 2 main differences between admissibility of voice identification evidence and visual ID evidence?

Answer 18

1. Voice allows the identification of ANY OTHER PERSON CONNECTED with an act relating to evidence of an offence (s4).
2. Prosecution only need to prove on balance of probabilities that the circumstances in which the voice identification was made produced reliable identification (s46)

Question 19

Is a statement made by a defendant admissible against a co-defendant?

Answer 19

No.

Question 20

What three rules may exclude defendants statements or evidence?

Answer 20

Reliability Rule (S28)
Oppression rule (S29)
Improperly obtained Evidence Rule (S30)

Question 21

A. s (28) What constitutes unreliable (4)
B. When would judge exclude unreliable statement.
C. When is unreliable statement routinely included (2)

Answer 21

A. i) physical, mental psychological condition of defendant when made

ii) mental, physical intellectual disability defendant is subject to.
iii) nature of questions and manner/circumstances in which they are put to defendant.
iv) nature of threat, promise or representation made to defendant or any other person.

B. must exclude unless judge satisfied on Balance of Probability that circumstances in which it was made would not likely affect its reliability

C. i) prosecution wish to prove physical, mental or psychological condition of defendant at time it was made
ii) prosecution to only offer it as evidence of whether the statement was made

Question 22

s 29. When is a statement excluded pursuant to the oppression rule?

Answer 22

If on evidential grounds the judge or defence raises it - the statement must be excluded unless Judge satisfied BEYOND A REASONABLE DOUBT the statement not influenced by oppression.

Question 23

What is oppression? (3)

Answer 23

• Oppressive, violent, inhuman, degrading conduct or treatment
• towards defendant or another person.
• Threats of the same.

Question 24

What is “improperly obtained evidence” s30 (3)

Answer 24

1. In breach of any enactment or rule by person to whom S3 Bill of Rights Act applies (s3 - performance of functions of public function)
2. Evidence obtained as a consequence of a statement that would be inadmissible.
3. Obtained unfairly - as determined by Judge.

Question 25

If Judge or Defence raise the issue of improperly obtained evidence.
A. What must the Judge determine? (2)
B. In relation to the improperly obtained evidence, what can the court have regard to (8)

Answer 25

A. 1. find on balance of probabilities if or not Evidence obtained improperly
2. If improperly obtained is exclusion proportionate to the impropriety.
B. 1. importance or right breached and seriousness
2. nature of impropriety - reckless, done in bad faith
3. Nature and quality of improperly obtained evidence.
4. seriousness of offence
5. Any other investigative techniques not involving a breach of rights that could have been used to obtain the evidence but not used
6. alternative remedies to exclusion of evidence that would provide redress for defendant.
7. was impropriety necessary to avoid danger to Police or others.
8.urgency needed in obtaining improperly obtained evidence.

Question 26

s 30 What is the causative link in improperly obtained evidence

Answer 26

Causation between the impropriety and the obtaining of the evidence.

Question 27

What is included in the new practice note “Judges Rules” for the purpose of s 30 improperly obtained evidence (5)

Answer 27

1: Police may ask Qs of any person but must not suggest it it is compulsory to answer.
2: Caution and Rights must be given when sufficient to charge
3: Questions to person in custody, or sufficient evidence to charge, must not amount to cross examination.
4: When questioned about statements made by others; substance of statements and nature of evidence must be fairly explained.
5: Video recording preferred. Otherwise permanent record on audio or paper. Opportunity to review, correct, add anything and sign

Question 28

What is the new caution: (4)

Answer 28

1. Right to remain silent and refrain from making any statement.
2. Right to consult and instruct Lawyer without delay and in private BEFORE DECIDING WHETHER TO ANSWER ANY QUESTIONS.
3. Any right may be exercised without charge under the Police Legal Assistance scheme
4. Anything said will be recorded and may be given in evidence.