PEP Week 10 Quiz Flashcards
What is the 4 step pathway to admissibility of a document? (section numbers)
1) s55 (is it relevant)
2) s56 (relevant evidence to be admissible)
3) s58 (Court may draw inferences as to relevance)
4) s183 (the power to draw ANY inference)
Section 47 Evidence Act in relation to a document?
47 Definitions
(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.
(2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.
What section allows you to “hand up” a document for examination in relation to a dispute about relevance?
S58 - question of relevance of DOCUMENT or THING
= the court MAY examine it and draw any reasonable inference from it
(Including authenticity or ID)
What power does the court have to presumptions in relation to an electronic communication?
s161 - Electronic Communications
If a document purports to contain an electronic communication, it is PRESUMED (Unless evidence raised to the contrary) that the communication:
(a) was sent/made IN THE FORM that it appears to be (eg is an email)
(b) was sent/made BY THE PERSON it appears from the document to have been sent/made by
(c) was sent/made On The DAY / at the TIME / from the PLACE
(d) was received at the DESTINATION to which it appears to have been sent
(e) CONCLUDED at a particular TIME
What is the Section which relates to Provisional Relevance?
57 Provisional relevance
(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant—
(a) if it is reasonably open to make that finding, or
(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.
What power does the Court have in relation to presumptions about evidence produced by Machines/Processes and other devices (i.e CCTV)?
S146 the processes/machine/device = IS PRESUMED to work correctly (unless there is EVIDENCE to suggest otherwise)
Facebook = assumes name correctly generated
A business record under section 69 limited to first-hand hearsay?
No. Because it is not found under ‘Division 2 “First-hand” hearsay’
Is CCTV footage considered a business record?
No, it’s not Hearsay generally.
What is the test in Section 171 about who can give evidence?
s171(1)(a) = a person who had a POSITION OF RESPONSIBILITY in relation to making or keeping the document or thing
OR
(b) an authorised person
What is ‘significant probative value’?
The evidence must be of such a nature that it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent — that is, more than is required by s 55 to establish relevance — Hughes v The Queen (2017) 263 CLR 33 at [16]; McPhillamy v The Queen (2018) HCA 52 at [27];
The onus in s.137 applies to whom?
The prosecution only.
What is the test in relation to Dangerous Driving as per case R v Evans (1962) 47 ?
OBJECTIVE TEST - The apparent skill level of the driver is not necessarily a determinative factor as seen in the English case of R v Evans (1962) 47 Cr App Rep 62 (which cites other English decisions) said:
It is quite clear from the reported cases that if a man in fact adopts a manner of driving which the jury think was dangerous to other road users in the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.
Can a person asleep be a driver? Cite Authority
Jimminez v The Queen (1992) 173 CLR 572
A person who is asleep is not the driver. But we can look back to see if the driving was dangerous prior to sleep.
What are the elements of Negligent Driving s.117 Road Transport Act?
- Driver
- Motor vehicle
- Road
- Negligently
What is the definition of Negligently as defined in Simpson v Peat (1952)?
Was the accused exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances? - Simpson v Peat [1952]
