MISSING JUSTICE Flashcards
Outline the Ingredients of Perjury - Section 108(1)?
- A witness making any
- Assertion as to a matter of fact, opinion, belief or knowledge
- In any judicial proceeding
- Forming part of the witness evidence on oath
- Known by that witness to be false; and
- Intended to mislead the tribunal
In relation to the offence of Perjury, what intent is required?
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal.
There must be an intention to mislead the tribunal, where the intention is absent, no offence has been committed.
Outline the elements of the offence “fabricating evidence” under Section 113 - Crimes Act.
- With intent to mislead any tribunal holding any judicial proceeding to which Section 108 applies
- Fabricates evidence by any means other than perjury.
What is a witness?
A witness is a person who gives evidence and is able to be cross-examined in a proceeding.
This includes a person who is actively engaged in the process of giving evidence and/or who has previously given evidence. The term witness also includes a person who will give evidence.
Circumstances is permitted for a lay witness to give opinion evidence?
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate or the fact finder to understand what the witness saw, heard or otherwise perceived.
e.g apparent age, ID, speed, physical and emotional state of people, condition of articles (worn, used, new) and whether person under the influence of drink
List 4 examples of misleading justice.
- Willfully going absent as a witness
- Arranging a false alibi
- Threatening or bribing witnesses
- Concealing the fact an offence has been committed
- Assisting a wanted person to leave the country
- Threatening or bribing Jury members
- Preventing a witness from testifying
- Intentionally giving Police false information to obstruct their enquiries
- Supplying false information to Probation Officers
What three elements are required for the act of receiving?
- Must be property which has been stolen or obtained by a crime
- The accused must have received that property (requires the receiving must be from another person)
- The accused must receive that property in the knowledge that it has been stolen or
- illegally obtained, or being reckless as to that possibility.
When is the act of Receiving complete?
The act of Receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of or control over, the property or helps in concealing or disposing of the property
R v Kennedy - “The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving”
Provide 4 examples of circumstantial evidence of guilty knowledge.
- Possession of recently stolen property
- Nature of property ie, type, value, quantity
- Purchase at a gross undervalue
- Secrecy in receiving the property
- Receipt of goods at an unusual place
- Receipt of goods at an unusual time
- Receipt of goods at an unusual way
- Concealment of property to avoid discovery
- Removal of identifying marks or features
- Steps taken to disguise property (ie. removal/altering of serial numbers)
- Lack of original packaging
- Type of person goods received from
- Mode of payment
- Absence of receipt where receipt would usually be issued
What is the Doctrine of recent possession?
It is the presumption that, where the Defendant acquired possession willingly, the proof of possession by the Defendant of property recently stolen is, the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver or has committed some other offence associated with the theft of the property, eg burglary or robbery by some way of circumstantial evidence.
In circumstances where a person if found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief.
Explain what title is and what a voidable title is?
Title is a legal right in property. If title is obtained by deception, it is voidable title.
Title can be voided if you communicate directly with the deceiver, take all reasonable steps to bring to their attention (email/letter) or advise Police of the circumstances of the deception.
