PEP 64 week 5 Flashcards
What does s.55 provide
Evidence that is relevant is evidence that if accepted could affect the proceeding
S.55 (evidence not irrelevant if…)
not irrelevant only because it relates to:
(a) credibility of a witness
(b) admissibility of other evidence
(c) failure to adduce the evidence.
definition of leading question
(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.
Why don’t we ask leading questions
Unfair R v Thynne [1977] VR98
What is the section for reviving memory and give detail
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.
What is the authority for s.33 Police reading his statement direct onto the record
Days not weeks Orchard V Spooner (1991)
What are the steps for evidence to be admitted
- Relevant s.55
- s.56
- Exclusions (over objection s.190)
- exceptions to exclusions
- discretionary exclusions
What are the Exclusions
- Hearsay
- Opinion
- Tendency
- Coincidence
- Credit
- Privilege
What evidence is allowed in?
Relevant, Admissible unless otherwise excluded.
Courts control over questioning of the witness
s.26
Order of EIC, XX, RE-Exam
s.28
Where can you go to get leave of the court to depart from normal order of questioning
s.192
Which section deals with police reading statements and which Case law relates to the amount of time after statement made
s.33
Orchard V Spooner (days not weeks).
Define Browne V Dunn
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.
Does Browne V Dunn apply to criminal matters? Cite authority
Yes R V BIRKS
What are the two ultimate fundamental principle remedies for breach of Browne V Dunn
Strict
Liberal
Name some Browne V Dunn Remedies
- Recall the witness s.46
- Unchallenged evidence is taken as accepted: No Contradictory Submission allowed
- Court may infer fabrication / recent invention.
- Strict application refusing evidence
Are Prosecutors required to call all witnesses both inculpatory and exculpatory? (cite case law)
Yes: Whitehorn V R [1983]
R V Apostilides [1984]
What happens if the prosecutor fails to call a witness?
- An inference may be drawn against the prosecution case (Jones V Dunkel)
- The court may find a miscarriage of justice.
What are the three types of witness s.38 allows for cross examination
(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.
What matters (and what subsection) does the court rely upon to determine whether to allow a s.38 application?
(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.
Which section of the evidence act allows for a prior inconsistent statement to be adduced for credibility
S.106 (2)(c)
What is required to prove a prior inconsistent statement
Inconsistencies need to be pointed out.
Show where the prior inconsistent statement was made.
Which section of the evidence act allows for a prior inconsistent statement to be admitted
s.60 Hearsay exemption
