Part 4 – Evidential directions - Division 3 - Unreliable evidence; Division 4 - Identification

Question 1

S31 Definitions

Answer 1

In this Div, evidence of a kind that may be unreliable includes

(a) hearsay or admission evidence;
(b) evidence the reliability of which may be affected by age, ill-health (whether physical or mental), injury or the like
(c) evidence given by a witness who might r’ably be supposed to have been criminally concerned in the events giving rise to the trial
(d) evidence given by a witness who is a prison informer
(e) oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008) of an accused where the questioning has not been acknowledged by the accused.

Question 2

S32 direction on unreliable evidence

Answer 2

(1) P or D counsel may request under s 12 that TJ direct jury on UE
(2) in making that request, P/D counsel must specify
(a) significant matters that may make the evidence unreliable, or
(b) if request concerns child’s evidence, significant matters (other than solely age of the child) that may make the evidence unreliable.
(3) In giving (1) direction, TJ must
(a) warn jury that the evidence may be unreliable; and
(b) (i)(ii) inform jury of (2)(a)(b) factors
(c) warn jury of need for caution in determining whether to accept the evidence and the weight to be given to it.

Question 3

S33 prohibited statements and suggestions in relation to reliability of kid’s evidence

Answer 3

TJ, P and D Counsel (or A if self-rep) must not say or suggest in any way to jury that (a) kids as class are unreliable W, (b) evidence of kids as a class is inherently less credible or reliable, or requires more careful scrutiny, than evidence of adults, or (c) particular child’s evidence is unreliable solely on account of age (d) would be dangerous to convict based on uncorroborated W evidence because the W is a child

Question 4

S34 Abolition of common law rules

Answer 4

(1) Except as provided by this Division, TJ is not required to direct the jury regarding evidence of kind that may be reliable
(2) Any rule of common law to the contrary is abolished

Question 5

S35 Definition

Answer 5

In this Division, identification evidence means an assertion by a person, or a report of an assertion by a person, to the effect that—
(a) he/she recognises/ doesn’t recognise a person/object as the person/object he/she saw heard or perceived on relevant occasion;
(b) or general appearance/characteristics of a person/object are similar/not similar, to general appearance/characteristics of person/object he/she saw, heard/perceived on relevant occasion—
and includes—
(c) visual identification evidence within meaning of s 114 of the Evidence Act 2008; and
(d) picture identification evidence within the meaning of s 115 of “””.

Question 6

S36 Direction on identification evidence

Answer 6

(1) P or D counsel may request under s 12 an IE direction
(2) in so requesting, P/D counsel must specify the significant matters that may make the evidence unreliable
(3) in giving (1) direction, TJ must (a) warn jury of need for caution in determining whether to accept evidence and weight to be given (b) inform jury of significant matters that TJ considers may make the evidence unreliable (c) inform jury that (i) W may honestly believe his/her evidence is accurate when they’re in fact mistaken (ii) mistaken evidence of W can be convincing (d) if relevant, inform jury that number of W may all be mistaken (e) if relevant, inform jury that mistaken IE has resulted in innocent people being convicted

Question 7

S37 Abolition of common law rules

Answer 7

(1) TJ not otherwise required to direct jury regarding IE unreliability
(2) Any rule of common law to the contrary is abolished.