PEP Wk7

Question 1

What level of ‘knowledge’ must an accused have to be charged with being an ‘accessory BEFORE the fact’?

Answer 1

Must have knowledge of the ACTUAL crime committed.

Question 2

What level of ‘knowledge’ must an accused have to be charged with being an ‘accessory AFTER the fact’?

Answer 2

Knowledge of the Precise Crime committed by the principal offender

Question 3

Definition of an ‘Innocent Agent’

Answer 3

A person who commits an offence on behalf of someone else BUT is not liable for the offence.

(Eg no mens rea)

Question 4

What are the elements of a Joint Criminal Enterprise?

Answer 4

1) An agreement (to commit a crime)
&
2) Participation by the accused

Question 5

What is the test in relation to proving the doctrine of common purpose?

Answer 5

McAuliffe v R

It is a subjective test .

I.e. What is in the mind of the accused person

Question 6

What are the elements of Extended Common Purpose?

Answer 6

1) An agreement to a foundational offence.

2) An incidental offence occurs.

3) The accused FORESAW the incidental crime as a possible consequence of the joint criminal enterprise.

Question 7

Is T&C evidence admitted for another purpose NOW, ALSO admissible for its T&C purpose?

Answer 7

No. It cannot be relied upon for its T&C purpose. (only admissible for the original purpose)

Question 8

Do the restrictions on tendency evidence and coincidence evidence apply only to the prosecutor?

Answer 8

Yes, only applies to the prosecutor. Section 101(2) relates.

Question 9

True or False: The tendency rule only applies to evidence that has ‘significant probative value’.

Answer 9

True. It is a requirement of s97(1)(b).

Question 10

What types of questions can the Arbiter of Fact answer?

Answer 10

They can make decisions about questions of facts.

Question 11

Voir Dire:
Cross Examination in relation to the truth of admissions.

Answer 11

S189(3) - the prosecutor can not cross examine about the truth of the admission (unless the issue is mentioned by the defendant first)

Question 12

Case about 5 rules of Voir Dire’s

DPP v Zhang [2007] NSWSC 308

Answer 12

1) a Voir Dire is a matter of DISCRETION and NOT A RIGHT

2) party seeking - must satisfied the magistrate that there are REASONABLE GROUNDS & must IDENTIFY the ISSUE

3) SPECIFICATION OF ISSUES (to assist with objections)

4) the need for a Magistrate TO IDENTIFY WITH PRECISION

5) magistrate to RULE UPON admissibility

Question 13

What is the standard of proof for a Voir Dire hearing?

Answer 13

S142 = balance of probabilities

Question 14

3 things are that can be considered under s189 (I.e Voir Dire)

Answer 14

1) Admissibility

2) can the evidence be used against the person

3) if a witness is competent, or compellable

Question 15

S135 - The court MAY refuse to meet evidence if it’s PROBATIVE VALUE is SUBSTANTIALLY OUTWEIGHED by the danger the evidence might….

Answer 15

1) be Unfairly Prejudicial, or

2) be Misleading or Confusing, or

3) cause or result in an Undue Waste Of Time

Question 16

Meaning of “Probative Value” and what’s the authority?

Answer 16

Dictionary of the Evidence Act

Means the extent to which the evidence COULD RATIONALLY AFFECT the assessment of the probability of the existence of a fact in issue.

Question 17

Meaning of “Unfair Prejudice”, & what the authority?

Answer 17

R v BD

“A real risk that the evidence will be misused by the jury in some way”

Question 18

S138

Answer 18

Improperly or illegally obtained evidence is not to be admitted, unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

Question 19

What is circumstantial evidence?

Answer 19

Circumstantial evidence is evidence that may prove a fact by inference.

Question 20

What is the test that the court applies to circumstantial evidence?

Answer 20

Relevance s55

Question 21

Six main cases for circumstantial evidence

Answer 21

1) Barca
2) Bayden-Clay
3) Chamberlain
4) Shepard
5) Peacock
6) Pfenning

Question 22

What is the process for relying on circumstantial evidence?

(3 steps)

Answer 22

1) Basic Fact

2) Intermediate Fact

3) Ultimate Inference of Guilt

Question 23

What is the power for Police to search vehicles and seize things without a warrant?

Answer 23

S36 of LEPRA

Question 24

What is the power which is relevant in the following scenario:
Man seen to be looking into cars and trying to open doors .

Answer 24

S21 LEPRA - power to search person and seize and detain things without a warrant

Question 25

S202 of LEPRA - safeguard requirements

Answer 25

A) evidence that the police officer is a police officer

B) the name of the police officer in their place of duty

C) the reason for the exercising of the power

Question 26

Case on Suspicion

George v Rockett

Answer 26

“ a suspicion that SOMETHING exists is more than a MERE IDLE wondering whether in exists or not”

Question 27

True or false?

If the police are conducting a search under s21 of LEPRA, they must comply with s202 of LEPRA?

Answer 27

True

Question 28

S101A Credibility Evidence

Answer 28

Credibility evidence, is evidence relevant to the credibility of the witness or person that—
(a) is relevant ONLY because it affects the assessment of the CREDIBILITY of the witness or person, or
(b) is relevant—
(i) because it AFFECTS the assessment of the CREDIBILITY of the witness or person, AND
(ii) for some OTHER PURPOSE for which it IS NOT ADMISSIBLE , or cannot be used, because of a provision of Parts 3.2 (Hearsay) to 3.6 (T&C)

Question 29

Example in which evidence is only relevant for a credibility purpose.

Answer 29

1) a victim has provided an inconsistent statement, AFTER providing a written statement/DVEC

2) the statement is not admissible, s66(3) - maker available, but statement was made for the purpose of indicating the evidence they would give.

3) s101A applies

4) (with leave) can tender the statement under s108 to re-establish credibility