PEP 64 Week 6 Flashcards
S. 59 Hearsay Rule three part test (to exclude the evidence).
- Previous representation
- Made by a person.
- Relied upon for proof of its asserted fact.
Which section and in particular which three words in that section allow hearsay evidence to be used for any purpose.
S. 60(1) The hearsay rule does not apply to evidence of a previous representation “THAT IS ADMITTED” because it is relevant for a purpose other than proof of the asserted fact
Walton V Queen HCA case law.
Hello Daddy
definition of: Unavailability of persons
Dictionary
cl. 4 Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
Where is attempt offence located in the legislation
Crimes Act s.344A (note only applies to Crime Act)
Name some other attempt offences not in Crimes Act
s.13(5) Attempt stalk intimidate.
s.14(9) Attempt Breach AVO
What are the two basic elements of an attempt
Mens Rea
Actus Reus
(must be proximate)
What is the definition of an attempt?
And name the case law
an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted”
HAUGHTON v SMITH[1973] 3 All ER 1109
What is the specific intent requirement
Must have the specific intent.
We can not use an attempt provision for Offences of recklessness/negligence (see WHYBROW 35 Cr App R141)
Is impossibility still a defence? Give some history.
R v MAI and anor (1991) 26 NSWLR 371
Adopted the VIC view [BRITTEN v ALPOGUT], and is NSW authority that impossibility is no longer available as a defence to a charge of attempt
What is the Woolmington golden thread
It is the onus on the prosecution to prove the prisoners guilt.
Under Sullivan which is a submission that relates to a FACT and which to law
1st leg could Law
2nd leg should Fact
What can’t the defence do after their second leg submission
Call their client
In which Sullivan submission is the prosecution case taken at it’s highest?
1st leg
What evidence is permissible in a 2nd leg submission? And what is the case law?
All of the evidence, SULLIVAN
