PEP Wk 10 Flashcards
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)
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
s146 - Evidence produced by Processes, Machines & Other Devices (eg CCTV)
S146 the processes/machine/device = IS PRESUMED to work correctly (unless there is EVIDENCE to suggest otherwise)
Facebook = assumes name correctly generated
How to rebut an objection in relation to a document not being an ‘original document’
s51 = original document rule abolished
s47(2) = “definition ” = a copy of a DOCUMENT IN QUESTION includes a document that is not an exact copy, but is IDENTICAL to the document in question IN ALL RELEVANT RESPECTS
s48 = adducing a document by tendering it (the contents of a document may be proved by tendering the document in question)
Does a business record under section 69 have to be first-hand hearsay?
No. Because it is not found under ‘Division 2 “First-hand” hearsay’
s171 what is the test for who can give evidence via an Affidavit?
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
How does the case of ACCC v Air NZ Ltd (No 1) [2012] FCA 1355 (as confirmed in Pinn & Gregg) provide a pathway to admissibility of a document?
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)
What case is the authority for “driving in a Manner Dangerous” in relation to the test applied?
R v Evans
An OBJECTIVE TEST, from the view of the fact finder
What are the two points that came out of the case of Jimminez v The Queen (1992) CLR?
- A person who is asleep IS NOT the driver while asleep.
- The Prosecution is entitled to LOOK BACKWARDS IN TIME and examine the drivers behaviour leading up to the point of falling asleep - to determine negligence / dangerous driving.
What is the authority for, and definition of, Negligent Driving?
Simpson v Peat [1952] 2 QB 24
(Was the accused) exercising a degree of CARE and ATTENTION that a REASONABLE and PRUDENT driver would exercise in the circumstances?
Applying the Caution and traffic offences.
As per s139(4), there is no need to caution when a person is required to provide certain information to police (eg s175 of the RTA). However police should caution once the person has provided the information required by the particular section.
Negligent Driving Elements
S117(1)
1) the accused
2) drove
3) a motor vehicle
4) on a road
5) negligently
Elements of Dangerous Driving
Section 52A - Crimes Act
1) the accused
2) drove a vehicle
3) involved in an impact
4) that killed or caused GBH to another person, and
5) at the time of the impact the driver was;
a) UNDER the influence of intoxicating liquor or of a drug, or
b) at a SPEED dangerous to another person, or
c) in a MANNER dangerous to another person
What type of ‘entitlement of belief’ must exist for a claim of right defence to be successful?
The belief must be one of legal entitlement, NOT moral entitlement.
Honest and reasonable mistake of fact
Mistake of fact only.
Mistake of law is not an offence.
Applies to strict liability offences.
