PEP Wk8 Flashcards
Can an admission be excluded under the Hearsay rule?
No.
s81(1) the hearsay and opinion rule do NOT apply to evidence of an admission
What is an admission?
Dictionary of the Evidence Act
“Admission” means a PREVIOUS REPRESENTATION that is:
a) made by a PERSON who IS or BECOMES a PARTY to a proceeding (including a defendant in a criminal proceeding)
b) ADVERSE to the person’s INTEREST in the OUTCOME of the proceeding.
Other than words, what can an “admission” encompass?
Expressed words “I’m going to kill you”
Inferences from words “do it or else”
Expresses conduct “the victim pointing at the accused- after being asked who did it - FLIGHT”
Implied conduct “finger over lips/quite”
Not communicated words “diary”
Not intended to be communicated “talking to self”
S84 exclusion of admissions, influenced by violence and certain other conduct
An admission IS NOT admissible if influenced by:
a) violent oppressive, inhuman or degrading conduct (can be toward the accused or another)
b) a threat of conduct of that kind
Section 84 Does NOT apply unless raise by the defendant.
Pavitt v Regina [2007] NSWCCA
(s90 - court MAY exclude admissions unfair)
= if the admission is made on a Voluntary basis PRIOR to official questioning and being offered an interview, THEN it would be hard for the defence to argue section 90 applies
ID Evidence
Section 116 Evidence Act 1995
s116 Directions to jury
(1) if ID evidence admitted, the judge must inform the jury-
(a) that there is a SPECIAL NEED for Caution before ACCEPTING ID Evidence
And
(b) the reason for the caution
ID Evidence
S165
S165 = judicial warning that certain types of evidence (INCLUDING identification evidence) MAY BE unreliable evidence
What is ID evidence?
Defined in the Dictionary of the Evidence Act
“identification evidence” means evidence that is–
(a) an ASSERTION by a PERSON to the effect THAT A DEFENDANT was, or RESEMBLES(visually, aurally or otherwise) a person who was, present at or near a place where–
(i) the offence for which the defendant is being prosecuted was committed, or
(ii) an act connected to that offence was done,
at or about the time at which the offence was committed or the act was done, being AN ASSERTION that is BASED WHOLLY or PARTLY on what the person making the assertion SAW, HEARD OR OTHERWISE PERCEIVED at that place and time, or
(b) a report (whether oral or in writing) of such an assertion.
S114(2) - exclusion of visual identification evidence
(2) Visual ID evidence adduced by the prosecutor is NOT admissible UNLESS–
(a) an identification parade (that included the defendant) was HELD BEFORE
(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.
What type of proceedings does part 3.9 Identification Evidence (Evidence Act 1995) apply to?
S113 = only applies in criminal proceedings
Summary Offences
What is the case for the test of what is offensive?
Worcester v Smith [1951] VLR 316
“Words calculated to wound the feelings, arouse anger or resentment, or disgust or outrage in the mind of a reasonable person”
What is Wilfully? (Case)
R v Senior (1899)
“Wilfully means that the act is done DELIBERATELY and INTENTIONALLY, not by accident or inadvertence”
Summary Offences
Is “Wilfully” deliberate and intentional, OR inadvertence?
“Wilfully” must be deliberate and intentional.
I.e. it’s is wilfully because it is voluntary.
Summary Offences
Does a car parked outside a complex on a public street count as being in a public place?
Answer = Yes.
Summary Offences
Is a school a public place?
NO, the summary offences act excludes schools from the definition of a ‘public place’
