PEP 64 week 5

Question 1

What does s.55 provide

Answer 1

Evidence that is relevant is evidence that if accepted could affect the proceeding

Question 2

S.55 (evidence not irrelevant if…)

Answer 2

not irrelevant only because it relates to:
(a) credibility of a witness
(b) admissibility of other evidence
(c) failure to adduce the evidence.

Question 3

definition of leading question

Answer 3

(a) directly or indirectly suggests a particular answer.
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding.

Question 4

Why don’t we ask leading questions

Answer 4

Unfair R v Thynne [1977] VR98

Question 5

What is the section for reviving memory and give detail

Answer 5

S.32 (1) Must not use a document to try to revive his memory unless the court gives leave.
(2) Court can take into account when deciding to give leave–
(a) whether they can recall without doc
(b) whether the doc:
(i) was written by the witness when memory was fresh
(ii) was found at the time to be accurate.
(3) can read aloud from doc if given leave.
(4) court can direct how much of the doc is produced.

Question 6

What is the authority for s.33 Police reading his statement direct onto the record

Answer 6

Days not weeks Orchard V Spooner (1991)

Question 7

What are the steps for evidence to be admitted

Answer 7

• Relevant s.55
• s.56
• Exclusions (over objection s.190)
• exceptions to exclusions
• discretionary exclusions

Question 8

What are the Exclusions

Answer 8

• Hearsay
• Opinion
• Tendency
• Coincidence
• Credit
• Privilege

Question 9

What evidence is allowed in?

Answer 9

Relevant, Admissible unless otherwise excluded.

Question 10

Courts control over questioning of the witness

Answer 10

s.26

Question 11

Order of EIC, XX, RE-Exam

Answer 11

s.28

Question 12

Where can you go to get leave of the court to depart from normal order of questioning

Answer 12

s.192

Question 13

Which section deals with police reading statements and which Case law relates to the amount of time after statement made

Answer 13

s.33
Orchard V Spooner (days not weeks).

Question 14

Define Browne V Dunn

Answer 14

It is about WEIGHT and FAIRNESS. If you intend to put an alternative version to the court you must do so in a manner that it may be examined by others.

Question 15

Does Browne V Dunn apply to criminal matters? Cite authority

Answer 15

Yes R V BIRKS

Question 16

What are the two ultimate fundamental principle remedies for breach of Browne V Dunn

Answer 16

Strict
Liberal

Question 17

Name some Browne V Dunn Remedies

Answer 17

1. Recall the witness s.46
2. Unchallenged evidence is taken as accepted: No Contradictory Submission allowed
3. Court may infer fabrication / recent invention.
4. Strict application refusing evidence

Question 18

Are Prosecutors required to call all witnesses both inculpatory and exculpatory? (cite case law)

Answer 18

Yes: Whitehorn V R [1983]
R V Apostilides [1984]

Question 19

What happens if the prosecutor fails to call a witness?

Answer 19

• An inference may be drawn against the prosecution case (Jones V Dunkel)
• The court may find a miscarriage of justice.

Question 20

What are the three types of witness s.38 allows for cross examination

Answer 20

(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.

Question 20

What matters (and what subsection) does the court rely upon to determine whether to allow a s.38 application?

Answer 20

(6)(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

Question 21

Which section of the evidence act allows for a prior inconsistent statement to be adduced for credibility

Answer 21

S.106 (2)(c)

Question 22

What is required to prove a prior inconsistent statement

Answer 22

Inconsistencies need to be pointed out.
Show where the prior inconsistent statement was made.

Question 23

Which section of the evidence act allows for a prior inconsistent statement to be admitted

Answer 23

s.60 Hearsay exemption