PEP Week 8 Quiz Flashcards
Quiz
Admissions - know what the exception to the hearsay rule is in relation to admissions.
s.81 Evidence Act
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation—
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.
s.82 Evidence Act
Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless—
(a) it is given by a person who saw, heard or otherwise perceived the admission being made, or
(b) it is a document in which the admission is made.
Admissions
What is the standard of proof in relation to s.84 Evidence Act? Who bears the onus?
After the issue is raised by the defence, the prosecution bears the onus on the balance of probabilities of showing that there was no link between the conduct complained of and the admission (s142 Evidence Act).
Admissions -
Pavitt v Regina
(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police;
(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important;
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.
Admissions
What can be an admission?
Admission”means a previous representation that is—
- made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
- adverse to the person’s interest in the outcome of the proceeding.
It can be more than verbal words;
Express spoken words – “I’m going to kill you” – The threat is expressly outlined.
Inferences from words – “Do what I say or else” – The threat is a representation implied by words.
Express inferences from conduct – The victim pointing at the Defendant when asked “who did it?”
Implied Inferences from conduct – The Defendant moving his finger across his neck towards the Victim – The threat is a representation implied by conduct.
Not communicated words – The diary of the Defendant or words spoken to one’s self
Summary Offences -
What is the definition of a public place?
(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.
Summary Offences -
What is a ‘lawful purpose’ as defined in the case of Taikato 1996
‘lawful purpose’ to mean, in this Act, to be a purpose that is positively authorised by law
Summary Offences -
If the vehicle is parked in a park, is it in a public place?
Yes
Summary Offences -
What is a reasonable excuse for having a possession of a knife?
(3) A reasonable excuse includes the person having the knife in the person’s custody—
(a) because it is reasonably necessary for—
(i) the lawful pursuit of the person’s occupation, education or training, or
(ii) the preparation or consumption of food or drink, or
(iii) participation in a lawful entertainment, recreation or sport, or
(iv) the exhibition of knives for retail or other trade purposes, or
(v) an organised exhibition by knife collectors, or
(vi) the wearing of an official uniform, or
(vii) genuine religious purposes, or
(b) because it is reasonably necessary during travel to or from or incidental to an activity referred to in paragraph (a), or
(c) in circumstances prescribed by the regulations.
Summary Offences -
Someone who is drunk and walking around sticking his finger up at the cops - What charges would you advise to charge with?
Answer is not nothing.
Possibly Offensive conduct;
s.428D evidence of self-induced intoxication cannot be considered in determining the mens rea for offensive.
Similarly, the “reasonable person” in the definition of “offensive” is a reasonable person who is not intoxicated: see s.428F.
S.4 Offensive conduct
(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Identification Evidence -
What are the warnings that the Court can give themselves?
s.116 Evidence Act - Directions to jury
(1) If identification evidence has been admitted, the judge is to inform the jury—
(a) that there is a special need for caution before accepting identification evidence, and
(b) of the reasons for that need for caution, both generally and in the circumstances of the case.
(2) It is not necessary that a particular form of words be used in so informing the jury.
Turnbull (1976) 3 All ER 549 at 551-2.
Whenever the case of an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should instruct them as to the reason for that warning and should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of witnesses could all be mistaken.
Identification Evidence -
What is identification evidence?
Identification evidence is usually any evidence given by a witness that saw an actual offence committed and that the offence was committed by the accused
Identification evidence can include things like:
- Confrontation evidence (crowd scene)
- Picture identification
- Line-up identification
- Voice identification
Identification Evidence -
Visual identification evidence under Section 114 (2) of the Evidence Act adduced by the prosecutor is not admissible unless?
(a) an identification parade that included the defendant was held before the identification was made, or
(b) it would not have been reasonable to have held such a parade, or
(c) the defendant refused to take part in such a parade,
and the identification was made without the person who made it having been intentionally influenced to identify the defendant.
Identification Evidence -
Identification evidence requirements under the Evidence Act only apply to what type of proceedings?
Criminal Proceedings
(ref s.113 Evidence Act)
Identification Evidence -
What was held in the case of Mundarra Smith v The Queen?
Held: By majority the evidence was irrelevant as jury could make own comparison, but in other circumstances it may have been relevant. If relevant still have to consider opinion rule and discretions.
Kirby J (dissent): inadmissible opinion.
Was it identification evidence?
No! The witnesses were not present at the time of the offence.
How is admissibility argued?
Relevance and Opinion
High Court Case of SMITH v R
The court did NOT allow the evidence. The officer could not give id evidence (his opinion) in this matter
Police officer in Smith is giving an opinion and excluded under section 76 (opinion rule).
He is in no better position than the jury to make a comparison.
An exception to this rule is where offenders appearance has changed substantially post offence.
Opinion Rule
What is the lay opinion exception in the Evidence Act?
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
