Laws of Evidence Flashcards
What is the Burdon of Proof?
The presumption of innocence (Woolmingtons principle)
“Burdon of Proof lies with the prosecution”
What is the Evidential Burdon?
Defence obligation to prove an explanation without which the prosecution has proved its case. “the obligation to raise an issue at trial”
Are there exceptions to Woolmingtons principal?
Yes. Insanity, Maritime and Aviation safety are examples of the reverse burdon of proof.
What is the “Standard of Proof”?
The standard required to discharge:
Prosecution - Beyond reasonable doubt
Defence “Balance of Probabilities.
Describe “beyond reasonable doubt”.
“A very high standard of proof” met if the jury is sure the defendant is guilty.
What is the balance of probabilities
“That it was more probable than not”.
Is one persons testimony unsupported by other evidence sufficient to prove a case?
Yes. There are exceptions: Perjury and Treason.
What are the ingredients required for Identification evidence S45?
1: Saw or heard
2: Person
3: At or near place
4: Commission of offence (or written or oral account of above).
Is an informal identification process admissable?
No. Not unless prosecution can prove it is reliable.
How many images in a formal ID?
8
What reasons are there for NOT following formal ID?
Suspect refuses
Singular appearance
Substantial changes in appearance (since offence)
ID was not (reasonably expected to be) in question
Identification by chance
Who can conduct an ID procedure?
“Officers of an enforcement agency” (Customs, MPI…)
Who does S45 identification evidence apply to?
Only to a person alleged to have committed an offence.
What is the purpose of S45 (what is it intended to prevent)?
To prevent dock identification as the first time identified. (Unreliable).
What constitutes a formal ID procedure
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.
Is a statement made by a defendant admissible against a co-defendant?
No.
What three rules may exclude defendants statements?
Reliability Rule (S28) Oppression rule (S29) Improperly obtained Evidence Rule (S30)
What is the oppression rule?
If on evidential grounds the judge or defence raises it - the statement must be excluded unless Judge satisfied statement not influenced by oppression.
What is oppression?
Degrading or inhuman.
What is “improperly obtained evidence”
In breach of any enactment (S3 Bill of Rights Act)
As a consequence of inadmissible evidence.
Obtained unfairly - as determined by Judge.
Did the Evidence Act 2006 replace Judges rules?
Yes but the intent is similar.
What are the practice note “Judges Rules”
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.
