Practice Questions 2

Question 1

What was held in Woolmington V DPP?

Answer 1

The fundamental principle in criminal is the presumption of innocence, known as the “woolmington principle”. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 2

Define a hostile witness as per s4 Evidence Act 06?

Answer 2

• Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge, or
• Gives evidence that is inconstant with a statement made by that witness in a manner that exhibits, or appears to exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness, or
• Refuses to answer questions or deliberately withholds evidence.

Question 3

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

Answer 3

• Relevance
• Reliability
• Unfairness
• Public Interest.

Question 4

What is a leading question?

What is the general rule in relation to leading questions?

Answer 4

A leading question is one that directly or indirectly suggests a particular answer to the question.

The general rule is that leading question may not be asked during examination in chief or re examination.

Question 5

Briefly explain what a “voir dire” is?

Answer 5

A voir dire is:

• A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
• It is conducted without a jury being present.

Question 6

Define the following terms?

1) Witness

2) Facts in issue

Answer 6

Witness- This is a person who gives evidence and is able to be cross examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence, and may also include a person who has previously given evidence in the proceeding. For a limited number of provisions in the Evidence Act 2006.

Facts in Issue- Are those which the prosecution must prove in order to establish the elements of the offence or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.

Question 7

Explain the burden of proof?

Answer 7

Burden of proof means-

• Whoever asserts something must prove it.
• In criminal cases the burden of proof is on the crown, ie the prosecutor must prove the accused is guilty rather than the accused prove their innocence. All that the defendant needs to do is raise a doubt of guilt.
• In a criminal case the prosecution must prove every essential ingredient of the offence beyond reasonable doubt.

Question 8

What is the definition of a hearsay statement?

Answer 8

A statement that-

• Was made by a person other than a witness, and
• Is offered in evidence at the proceeding to prove the truth of its contents.

Question 9

Before giving evidence in court, witnesses may refresh their memory from?

Answer 9

• Their original statement.

- Their disposition.

Question 10

A person is unavailable as a witness when?

Answer 10

The person is overseas and cant be contacted.

Question 11

A presumption of law can be?

Answer 11

A presumption of law may be rebuttable or irrebuttable.

Question 12

When giving evidence you should address the judge as?

Answer 12

You honour, Sir or Ma’am.

Question 13

The court has discretion to include propensity evidence against a defendant if:

Answer 13

The probative value outweighs its prejudicial effect.

Question 14

A witness is deemed hostile when?

Answer 14

They refuse to answer questions or deliberately withholds information.

Question 15

The fundamental principal in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. What are the two exceptions to this rule?

Answer 15

There are exceptions to the general principle, which means that in some case the burden of proof reverse and falls in the defendant.

• Where there exist specific statutory exceptions.
• Where section 67(8) of the Summary Proceedings Act 1957 applies.

Question 16

The fundamental conditions for admissibility of evidence is that it must be relevant. What is the two prong test of relevance?

Answer 16

Materiality and Probativeness

• Materiality asks whether the evidence is offered on a matter of fact at issue in the case (of consequence to the determination of the proceeding, s7(3).
• Probativeness asks whether the evidence has a logical “tendency to prove or disprove” the material proposition on which it is offered. s7(3).

Question 17

Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters?

Answer 17

• Lack of veracity on the part of the person when under a legal obligation to tell the truth.
• That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity.
• Any previous inconsistent statements made by the person.
• Bias on the part of the person

Question 18

Define the following:
Circumstantial evidence?
Statement?

Answer 18

Circumstantial evidence is a fact that by inference can prove another fact in issue.

A statement is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.

Question 19

What are presumptions of law?

What are presumptions of fact?

Answer 19

A presumption of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable. eg A child under the age of 10yrs is unable to be convicted.

Presumption of facts are those that the mind naturally and logically draw from the facts given, always rebuttable. Eg one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

Question 20

The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable, According to section 16(1) of the Evidence Act 2006, circumstances in relation to a statement by a person who is not a witness, include?

Answer 20

Section 16(1) Evidence Act 2006 defined “circumstances”. Circumstances in relation to a statement by a person who is not a witness include:

• The nature of the statement, and
• The contents of the statement, and
• The circumstances that relate to the making of the statement, and
• Any circumstances that relate to the veracity of the person, and
• Any circumstances that relate to the accuracy of the observation of the person.