Laws of Evidence

Question 1

What is the Burdon of Proof?

Answer 1

The presumption of innocence (Woolmingtons principle)

“Burdon of Proof lies with the prosecution”

Question 2

What is the Evidential Burdon?

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, Maritime and Aviation safety are examples of the reverse burdon 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?

Answer 7

Yes. There are exceptions: Perjury and Treason.

Question 8

What are the ingredients required for Identification evidence S45?

Answer 8

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

Question 9

Is an informal identification process admissable?

Answer 9

No. Not unless prosecution can prove it is reliable.

Question 10

How many images in a formal ID?

Answer 10

8

Question 11

What reasons are there for NOT following formal ID?

Answer 11

Suspect refuses
Singular appearance
Substantial changes in appearance (since offence)
ID was not (reasonably expected to be) in question
Identification by chance

Question 12

Who can conduct an ID procedure?

Answer 12

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

Question 13

Who does S45 identification evidence apply to?

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

Answer 15

eight people
Similar appearance
Police staff not to be used
No coaching witness
Different participants for different parades
Suspect MUST be advised: Not compulsory;
can have lawyer present.

Question 16

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

Answer 16

No.

Question 17

What three rules may exclude defendants statements?

Answer 17

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

Question 18

What is the oppression rule?

Answer 18

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

Question 19

What is oppression?

Answer 19

Degrading or inhuman.

Question 20

What is “improperly obtained evidence”

Answer 20

In breach of any enactment (S3 Bill of Rights Act)
As a consequence of inadmissible evidence.
Obtained unfairly - as determined by Judge.

Question 21

Did the Evidence Act 2006 replace Judges rules?

Answer 21

Yes but the intent is similar.

Question 22

What are the practice note “Judges Rules”

Answer 22

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 must not amount to cross examination.
4: When questioned about statements made by others; evidence must be fairly explained.
5: Video recording preferred.