PEP Wk6 Flashcards
The Essential Three (3) Elements of Hearsay.
1) a previous representation
2) made by a person
(Not admissible for)
3) PROVING A FACT that it can reasonably be supposed that the person intended to assert
Certificates under s59(3)
S59(3) - Subsection (1) DOES NOT APPLY to evidence of a representation contained in a certificate, or other document, as specified by that other act/reg
Eg s257 Road Transport Act
S62 - Restriction to “first-hand” hearsay
*Paraphrased
A reference to Division 2 of the Evidence Act, to a previous representation, is limited to when that person has personally knowledge of the assets fact.
(2) Personal knowledge of an asserted fact - must be something the person SAW, HEARD or otherwise PERCEIVED
S65 exception: Maker NOT available
65 EXCEPTION: CRIMINAL PROCEEDINGS IF MAKER NOT AVAILABLE
(2) The hearsay rule does not apply to first hand hearsay, if–
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or SHORTLY AFTER the asserted fact occurred & IN CIRCUMSTANCES that make it UNLIKELY that the representation is a FABRICATION , or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was–
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
S66: if maker AVAILABLE
S66(2) = hearsay rule doesn’t apply to
(b) a person who saw, hear or otherwise perceived the representation being made, IF,
… the asserted fact was FRESH in the MEMORY
What case best describes what an attempt is?
Houghton v Smith [1973]
“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”
2 basic elements of ‘Attempt’
Mens Rea - (guilty intent)
Actus Reus- (voluntary guilty act)
Quote from DPP v Stonehouse
Acts which are merely preparatory…. to the commission of the offence, … are not sufficiently proximate
Explain R v Mai and Anor (generally)
The NSW case which confirmed that impossibility was not a defence, as per Britten v Alpogut
(Drug possess of fake/intercepted drugs)
Attempts - Mens Rea
For a prosecution for attempt offence to succeed, the offence charged MUST be a crime if SPECIFIC INTENT.
The questions to be asked for the 1st and 2nd leg
1st Leg = test is COULD they be convicted.
2nd Leg = the test is SHOULD they be convicted.
What evidence can be considered during 1st Leg submissions?
Only evidence which militates (supports) for the Crown.
What evidence can be considered during 2nd Leg submissions?
The court must consider ALL of the evidence.
If the defence are unsuccessful with a 2nd Leg submission, can they call the accused and/or defence witnesses?
No.
May v O’Sullivan
The 1st & 2nd Leg submissions
1st Leg = Is there a “Prima Facie case” or a “case to answer”? - It is a question of law.
2nd Leg = Does the evidence prove the offence “beyond a reasonable doubt”. - it is a question of fact.
S142 Evidence Act - Question on the admission of evidence
To be proved on the balance of probabilities
What must a victim ‘feel’ for an assault to be established?
- Apprehend (the)
- Immediate (infliction of)
- Unlawful violence/force
Test for Self-defence:
Who’s state of mind must be considered?
The accused’ (subject test) &
Reasonable third person (objective)
Lawful Chastisement = 61AA
How to negate.
- Disproportionate Force
- Unjust Force
- Ineffective Force
- Objectively Unreasonable Force.
- Dishonest force.
Criminal Defences to Assault
1) lawful chastisement
2) consent
3) self defence
Definition of ABH
Mclntyre v R (2009)
“It need not be permanent, but must be MORE THAN merely TRANSIENT or TRIFILING”
Test of ‘Recklessness’
1) Turned their mind to the possibility
2) nonetheless, went ahead, and did the act anyway
Definition of Child Abuse Material
s91FB Crimes Act
Means; a person who is, appears to be, or is implied to be, a child
3 things to prove knowledge about consent
s61HK
1) actually knows
2) is reckless
3) any belief is not reasonable in the circumstances
