REVISION Flashcards
1
Q
What are the sentencing options for a criminal matter in accordance with the the Crimes (Sentencing procedure) act?
A
- S5 custodial sentence
- S6 home detention
- S7 intensive correction order - periodic detention
- S8 community service (up to 500 hrs)
(Bonds) S9: good behaviour w/conviction S10: good behaviour w/dismissal S11: deferral for rehab and programs etc S12: suspended sentence)
- S14 and S15 A fine
- S17A non association orders
2
Q
What is ‘Probative Value’?
A
It is a measurement of relevance. It is a judgement of the degree of relevance. Something that has a high degree of evidentiary weight will have a high degree of Probative Value.
3
Q
What is a ‘Prejudicial Effect’?
A
It means the improper effect the evidence may have on the jury.
4
Q
Section 138 of the Evidence Act relates to the exclusion of evidence on what basis?
A
1) evidence that was obtained;
a) Improperly or in contravention of an Australian Law.
b) in consequence of an impropriety or contravention of an Australian Law
5
Q
In regards to evidence subject to a S138 Evidence application to exclude, what 2 part process must the court consider in deciding whether to include or exclude the evidence?
A
Part 1: The party seeking to exclude the evidence argues that the evidence was improperly or illegally obtained.
If the court finds it improperly or illegally obtained; they consider Part 2
Part 2: The court must consider;
- Probative value of the evidence
- The importance of the evidence to the case
- The gravity of the impropriety or contravention
- Whether the impropriety or contravention was contrary to UN civil or political rights
- whether any other proceeding has or is likely to be taken regarding the impropriety or contravention
- the difficulty of obtaining the evidence without impropriety or contravention
6
Q
What does the term, ‘No bill” mean?
A
A ‘no bill’ is formal notification by the Crown that it does not intend to proceed with specific charges because:
- Evidence is NOT SUFFICIENT to establish each element of the offence.
- No reasonable PROSPECT OF CONVICTION by a reasonable jury properly instructed as to the law.
- There are discretionary reasons it would not be in the PUBLIC INTEREST to continue with the proceedings.
7
Q
What does the term ‘ex-officio’ indictment mean?
A
Where the DPP charge indictable offences for which there has been no committal, or initiates proceedings in the District court that have been discharged at Committal.
8
Q
What is the ‘Tribunal of Fact’?
A
The Jury
9
Q
What is the ‘tribunal of law’?
A
The judiciary
10
Q
What does the term ‘indemnity’ mean?
A
Refers to an agreement NOT to prosecute. Granted by the Attorney General.
11
Q
What is an ‘undertaking’?
A
It is a promise by the Crown not to use an answer, statement or disclosure as evidence in a proceeding against an individual. Granted by the Attorney General.
12
Q
What is ‘Circumstantial evidence’?
A
Evidence which establishes a fact by inference or indirectly.
13
Q
What is ‘Facts in issue’?
A
The facts in issue in a criminal hearing: Are the proofs of the offence
14
Q
What is ‘Direct Evidence’?
A
Evidence that establishes a fact itself without reference to any other fact.
15
Q
What is Relevant evidence? (S55 evidence act)?
A
Evidence is relevant if it directly or circumstantially can prove the likelihood as to the existence of one or more proofs of an offence.
16
Q
What is ‘reliability?
A
Reliability: is a measure of accuracy: Evidence that is reliable is more likely to be associated with the truth.
17
Q
What is ‘Fairness’?
A
Fairness incorporates preventing a miscarriage of justice and is concerned with maintaining the integrity of the hearing.
18
Q
What is a ‘prejudicial effect’?
A
It means the improper effect the evidence may have on the jury.
19
Q
What does the term ‘double jeopardy’ mean?
A
As a general principle of law nobody can be punished again for the same matter, it can be argued at all stages of the criminal judicial process; including - prosecution, conviction and punishment.
20
Q
What is an ‘abuse of process’?
A
The court’s procedures have been invoked for an improper purpose, or have been unjustifiably oppressive to one of the parties, or have brought the administration of Justice into disrepute.
21
Q
What is a ‘Voire dire’?
A
It is a hearing to determine the admissibility of evidence, or the competency of a witness or juror.
22
Q
What is a ‘Committal Proceeding’?
A
It is an enquiry at the local court to establish whether the prosecution has a reasonable prospect of conviction on available evidence before an indictable matter is referred to the district or supreme courts for trial.
23
Q
What is ‘Disclosure’? ( Re the ODPP)
A
Law Enforcement officers have a duty to disclose to the DPP all relevant information, documents or other things obtained during an investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
DPP Act S15A - Disclosures by law enforcement officers.
24
Q
In accordance with section 138 of the Evidence Act 1995 - discretionary exclusionary rule; the EXCLUSION (PART 1) of the evidence depends on what?
A
- it requires proof; that on the Balance of Probabilities, the party seeking inclusion of the evidence, has acted in contravention of an Australian law or acted in a manner that amounts to impropriety.
- If the court finds that there was no contravention or impropriety: the application will be dismissed.
- If the court finds that there was: then they move to PART 2 of the test (Re probative value)
25
In accordance with section 138 of the Evidence Act 1995 - discretionary exclusionary rule; the INCLUSION (PART 2) of the evidence, after a finding it was unlawfully or improperly obtained, depends on what?
- That on the Balance of Probabilities, the party seeking inclusion of the evidence, establishes that the desirability of admitting the evidence outweighs the undesirability and therefor should be admitted.
The court will assess one or more of the following;
- the probative value
- the importance in the proceeding
- the gravity of the impropriety or contravention
- whether the impropriety or contravention was contrary to UN civil or political rights
- whether any other proceeding has or is likely to be taken re the impropriety or contravention
- the difficulty of obtaining the evidence without impropriety or contravention
26
In accordance with section 187 of the criminal procedure act: Under what circumstances may a court order a brief or part brief - need not be served?
- Compelling reasons for no service
- Could not be reasonably served
- Not required by rules to serve
27
What are the 5 standards of proof?
- Reasonable suspicion
- Reasonable belief
- Prima facie
- Balance of probabilities
- Beyond a reasonable doubt
28
What are the ODPP guidelines for withdrawing matters?
- Is there admissible evidence supporting each element / proof of the offence - can it establish prima facie.
- Is there a reasonable prospect of conviction by a reasonable jury under appropriate instruction.
- Is it in the public interest to proceed.
(Seriousness, triviality, technical nature, obscurity of law, counter-productive, special circumstances, maintain public confidence)
29
Who can elect to have a Table 2 offence dealt with in the district court?
Only the Prosecution.
30
Who can elect to have a Table 1 offence dealt with in District Court?
The Prosecution and The defence.
31
What are the 6 general trial principals?
1) Prosecution obliged to call all material and credible witnesses .
2) The defence may argue in certain instances that where the prosecution has failed to call a witness this is because that witness was unfavorable to the prosecution (Jones V Dunkel inference).
3) We don't or the defence for that matter 'own' witnesses. The defence may approach the prosecution witnesses either before the hearing day or at court.
4) Accused doesn't need to get in the box. -Not getting in the box is not a an admission of guilt.
5) If we can establish an accused has lied in Court then we can ask the court to infer a guilty conscience.
6) The defence can introduce evidence going to good character of the accused, normally we cannot introduce evidence of bad character (some exceptions).
32
What are the four offence categories and how are they dealt with?
Summary - matters CAN only be dealt with summarily at Local Court by a Magistrate.
Table 2 indictable offences - the offence is dealt with summarily in local court unless elected by the PROSECUTION to be dealt with as a strictly indictable matter.
Table 1 Indictable offences - the offence is dealt summarily at local court unless elected by the prosecution of defence to be dealt with as a strictly indictable offence.
Strictly indictable offence - MUST be dealt with on indictment in the district or Supreme Court.
33
Why would the defence like a committal hearing?
- Can convince Magistrate not enough to go to trial
- Find out what witnesses will say about the issue.
- Cross examine key witnesses which could highlight weaknesses in case.
34
What is Hearsay in accordance with Section 59 of the Evidence Act?
59)(1) evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
35
In order to call evidence under section 65 evidence act, ‘maker unavailable’, what must you prove?
And what effect does it have if accepted at court?
- The maker is unavailable.
- Comply with notification service requirements as per Section 67.
- Show all reasonable attempts to have the witness attend.
- The evidence must of been perceived first hand by this witness.
If accepted: Available witness can give evidence of their initial conversation with the unavailable person.
36
In order to call evidence under section 66 evidence act, ‘maker available’, what must you prove?
And what effect does it have at court?
- The maker is available.
- The maker will be called in the proceedings.
- Memory was fresh at the time of making.
- Perceived first hand by witness.
Effect at court: Another witness who had a conversation with that person (maker) can give hearsay evidence relating to the identification of a person, place or thing; as identified by that person (maker)
37
In reference to ‘memory was fresh at the time of making’; summarise the findings of:
1) R v GRAHAM
And
2) R v ADAM
“In relation to appropriate time periods in which memory is considered ‘fresh’”
1) R v GRAHAM: “A question of degree, normally hours or days, not years.”
2) R v ADAM: “not limited to hours or days, flexibility is appropriate. 7 weeks is not seen as outside fresh memory.”
38
How does section 60 of the Evidence act, ‘hearsay for non hearsay purpose’ apply?
Section 60 - ‘Hearsay for non-hearsay purpose applies where we wish to use a previous representation NOT to prove the existence of a fact but for another purpose.
(such as reasonable suspicion for searches etc)
39
What are the 5 problems with Hearsay Evidence?
- The declarant cannot be CROSS EXAMINED
- It is difficult to assess the the WEIGHT that can be attached to the evidence.
- Difficult to assess the CREDIBILITY of declarant.
- The declaration was not made under OATH
- Danger of inaccuracy through REPETITION
40
In accordance with Section 76 of the Evidence Act - Evidence of an opinion IS NOT admissible.
What are the three sections in the Evidence Act which are the exceptions to this rule?
Section 78 - Lay opinion
Section 79 - Expert opinion
Section 177 - Tendered Expert Certificate
41
Section 78 of the Evidence Act refers to unqualified opinion evidence.
What is required for Lay evidence to be admissible?
Lay opinion may be admissible if the opinion is based on what a person saw, hears or otherwise perceived about an event (must be Direct Evidence)
And it must be necessary to obtain an adequate account or understand of that person’s perception.
42
What must a person have to be qualified as an expert in accordance with Section 79 of the Evidence Act?
The person has specialised knowledge based on the person’s training, study or experience The;
The opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
43
According to section 177 of the Evidence Act - Evidence of a person’s opinion may be adduced by tendering a certificate.
In order to do so, what must be completed first?
- signed by the person
- it must state the persons name and address
- it must state their qualifications etc.
- set out their evidence and opinion
- serve a copy of the certificate and a written notice of intention to tender it at least 21 days before the hearing.
Opposing party must notify if they require the expert to appear.
44
What is an admission?
ADMISSION means a previous representation that is;
A) made by a person who is or becomes party to a proceeding, and
B) adverse to the person’s interest in the outcome of the proceeding.
45
What is a representation?
- Something said or spoken
- Something that is written
- Something that is inferred from a persons conduct (bodily gestures)
These admissions can include evidence of;
1) Flight
2) Lies
46
In accordance with Section 139 (5) of the Evidence Act; what constitutes an arrest?
1) The investigating official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning.
2) The official would not allow the person to leave if they wished to do so.
3) The official has given reasonable grounds for believing that the person would not be allowed to leave if they wished to so so.
47
In accordance with Section 139 (1) of the Evidence Act; when do you need to caution?
1) Upon any arrest for an offence, and
2) Reasonable ground to suspect a person has committed an offence.
and
3) As an investigating official, prior to any official questioning of a suspect.
48
What is Official Questioning?
Official Questioning is Questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
49
The court has a series of powers under the Evidence Act 1995 to exclude evidence.
What are the general discretionary rules of exclusion?
Evidence Act 1995
S135 - The probative value is outweighed by it being unfair, misleading, confusing or waste of time.
S136 - Limit use of evidence if it is prejudicial, misleading or confusing.
S137 - Probative value outweighed by unfair prejudice.
S138 - improper or illegally obtained evidence.
S139(1) - evidence of a statement or act being improperly obtained (failure to caution appropriately)
50
What are the Mandatory Rules of Exclusion?
Rule 1: Section 84 (Evidence act)
To ensure that all admissions are volunteered by the accused. (Not coerced by violence or threat)
Rule 2: Section 85 (Evidence act)
To ensure the reliability of the admissions made by the accused. (Considerations on the accused persons; age, personality, education, mental/physical/intellectual disability IE -vulnerable persons) The manner of questions, offers or inducements are also considerations.
51
What are three main principals that govern admissions from
| child suspects?
1) A conclusive presumption that a child under 10 years cannot have criminal proceedings against them.
2) Doli Incapax - refers to the rebuttable presumption regarding children 10 to 14 years that they did not possess the mens rea.
3) To rebut: The Crown must prove the child knew it was wrong.
52
Is an admission an exception to the hearsay rule?
YES - Section 81 evidence act - exceptions to the hearsay rule.
Suspect to Officer -, ‘i killed her.’
But for section 81, that representation would be hearsay if we wanted to rely on the officer to give evidence of it to assert the truth of its contents.
53
Section 86 of the Evidence Act relates to the Exclusion of records of Oral Questioning. What must be done in order for a document prepared containing the questions and accused person’s representations to be admissible?
The defendant must have acknowledged that the document is a true record of the question, representation or response.
This acknowledgement must be made by signing, initially or otherwise marking the document.
54
Section 82 of the Evidence Act relates to admissions that are not perceived first hand. Should the court exclude them?
YES - admissions that are not percieved first hand will be excluded. Evidence through a third party is insufficient. Only a first person perceiving or the person making the admission can provide evidence of the admission. And it is still subject to the other rules of evidence.
55
Section 83 Exclusion of admissions against 3rd parties; relates to admissions made by one suspect regarding another. Can they be used as evidence?
Admissions made by one suspect regarding another can only be used by the prosecution with the consent of both co-accused persons.
56
Case law helps guide the necessity for the ‘Adoption’ process at the end of an interview.
What is an example of this case law?
And what are three essential components to help ensure admissibility of the interview in this case?
Case law:
McDERMOTT v The King (Crowne) 1948
Three components:
- The contents of the ROI were brought to the attention of the accused.
- The accused understood the contents.
- The defendant acknowledged the accuracy of the ROI.j
57
What are the Show Cause offences? (S16B Bail Act)
- Offence punishable by imprisonment for life
- SIO involving
-Sexual intercourse person under 16years by person 18yrs or above
- Actual bodily harm with intent to have sexual intercourse with person under 16yrs by person 18yrs and above.
- Serious person violence offence, or offence involving wounding or GBH , if accused is previously convicted of a SIO.
- Any of the following offences;
- SIO under Part 3 (offences against the person) or 3A (Public order)
- SIO under Firearms Act 1996
- SIO under Weapons Prohibition Act
- Offence under DMTA 1985 involving; cultivation, supply, possession
Trafficking
- Offence under part 9.1 if Commonwealth Criminal Code (serious drug offences)
- SIO whilst the accused is on bail or parole.
- Accused subject to supervision order and commits indictable offence.
- Attempts, assists, aiding, abetting to commit a SIO.
- SIO committed whilst the accused is subject to warrant issued under this act
58
The court has the discretion to exclude admissions in accordance with Section 90 of the Evidence Act on what basis?
Section 90 of the evidence act is a General Fairness Provision.
It considers that having regard to the circumstances in which the admission were made, it would be unfair to use them.
59
Section 89 of the Evidence act relates to the evidence of silence.
Can a court draw an unfavourable inference from evidence of silence?
NO: An inference must not be drawn from evidence that the person failed or refused to answer
-to one or more questions.
-to respond to a representation
Made by the investigating official.
60
What are the 3 categories of offences you will encounter in NSW?
- Mens rea offences - either type of mens rea present. Most serious crimes have this
- Absolute Liability offences - no mens rea minor offences.
- Strict liability offences - not criminally liable for an act or omission if he or she holds an honest and reasonable belief in state of facts which if true would make the act or omission innocent.
61
What is Identification Evidence and what are four types of it?
Identification Evidence is usually any evidence given by a witness that saw an actual offence committed and that the offence was committed by the accused.
It includes;
- Crowd scene
- Picture identification
- Line up identification
- Voice identification
62
What are the two phases in which identification can occur?
DETECTION PHASE: The investigation phase where you don’t know the identity of the suspect. These processes give you a suspect so you can obtain a formal admissible ID in the evidentiary phase.
EVIDENTIARY PHASE: The attempts to obtain identification evidence by methods such as showing witnesses photos or line ups; including the known suspect. We are bound by the evidence act in this phase.
63
What are the 3 Rs of identification evidence?
- Recollection
- Recognition
- Reconstruction
64
In the case of TAHERE v The Crown; the reasonableness of when a identification parade could be held. What does this case suggest?
The court of criminal appeal suggest that you have right up until the EVE of the trial to conduct an identification parade using sufficient numbers of persons with a similar description to the accused. It deliberates on what is reasonable.
65
What 5 points should be considered before deciding not to conduct a line up parade and resorting to other means of Identification Evidence?
- The witness’ prior familiarity or association with the offender.
- Special characteristics of the offender prevent it being fair (specific physical traits or unique appearance)
- Witness characteristics (bias, state of mind, ability to do so)
- Length of time between the crime and identification (witnesses memory faded or significant change of offender appearance)
- Displacement (offender has been shown to the witness for another offence or in a picture)
66
Line up parades in accordance with section 114 of the Evidence Act are bound by the rules concerning VISUAL IDENTIFICATION EVIDENCE
What three points guide this type of evidence?
- You must always resort to this form of identification firstly, over a photo identification parade.
- This type of identification is generally regarded as being most reliable.
- Section 114 includes crowd scene and formal identification parades.
67
In accordance with Section 114 of the Evidence Act - Visual Identification Evidence - Subsection (2) : Visual identification evidence are not admissible unless what?
(3 sub-subsections)
a) An identification parade involving the offender has already been held (such as crowd scene or line up)
b) It would not have been reasonable to have held such a parade.
c) The defendant refused to take part.
68
Picture identification in accordance with section 115 of the Evidence Act are bound by the rules concerning PICTURE IDENTIFICATION EVIDENCE.
What three points guide the use of type of evidence?
- Picture identification cannot be used if; when the pictures were examined, the defendant was in custody and the photo used was made before the defendant was taken into custody.
- The only exception is where the persons appearance has changed from the time of the offence to when they were taken into custody.
Or
- Unless it was not reasonably practicable to take a photo while they were in custody.
69
There are three types of suspect photos you can not use in a Photo Identification. What are they?
- Rogues Gallery Effect; photos that suggest the suspect is in police custody or adversely known to police.
- Displacement Effect; A person has previously been shown a picture or involved in another identification after the offence.
- Dock (in court) identification; highly unacceptable.
70
What are the two categories of experts?
1) Industry experts or practitioners
| 2) Academics
71
At common law an expert must have knowledge from a ‘field of expertise’
They must be able to point to the use of accepted theories and techniques.
They must have either?
- Formal training or qualifications
And/Or
- A suitable length if practical experience.
Always check their credentials.
72
What does section 50 of the Evidence Act 1995 specify?
It relates to proof of voluminous or complex documents;
- The court may, on application, allow a party to adduce evidence sourced from two or more documents in question into a summary;
If the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
73
In accordance with section 50 of the Evidence Act 1995 what must happen for a court to accept a summary of voluminous or complex documents into evidence?
- the court may make such a direction if the party seeking to adduce the evidence in a summary has;
- served on each other party a copy of the summary with the name and address of the person who prepared it. And;
- given each other party a reasonable opportunity to examine or copy the documents in question.
74
Does the opinion rule apply to evidence adduced in accordance with section 50 of the evidence act?
Subsection (3) the opinion rule does not apply to evidence adduced in accordance with a direction under this section.
75
Tendency evidence is outlined in when Act and section?
Evidence Act 1995 -
| S97: Tendency Rule
76
Coincidence evidence is outlined in what Act and section?
Evidence Act - S98 Coincidence Rule
77
What case law settled the statutory regime for admitting tendency and coincidence evidence?
R v Ellis 1995 - settled the statutory regime (evidence act) for admitting tendency and coincidence evidence.
78
Section 97(1) of the Evidence Act contains ‘The Tendency Rule’
What criteria must be met for Tendency evidence to be admissible?
1) Evidence of character, reputation, conduct and; tendency of a person.
Not admissible unless:
1) (a) Reasonable notice is given to the other party in writing...
1) (b) Significant Probative Value!!!
79
Section 98(1) of the Evidence Act contains ‘The Coincidence Rule’
What criteria must be met for Coincidence evidence to be admissible?
1) Evidence of 2 or more events...
Not admissible unless:
1) (a) Reasonable notice is given to the other party in writing...
1) (b) Significant Probative Value!!!
80
According to Common Law and prior to the Evidence Act; Tendency and; Coincidence was know as what?
Propensity
(Tendency - regarding the person)
Similar Fact
(Coincidence - regarding events)
81
Section 101 of the Evidence Act places a restriction on the use of Tendency and Coincidence evidence. What is that restriction?
Tendency and Coincidence evidence tendered by the prosecution - Cannot be used against the accused unless its (significant) probative value outweighs any prejudicial effect it may have on the accused.
This rule does not apply when the prosecution adduces the evidence to explain or contradict the accused’s tendency or coincidence evidence.
82
What sections of the Evidence Act have we been notified are important for the DEP? And to what do they relate?
Evidence Act;
S33 - Police may give evidence led through statement.
S50 - Voluminous Documents.
S55 - Relevance.
S59 - Hearsay.
S60 - Hearsay for non-hearsay purpose.
S65 - Hearsay; Maker unavailable.
S66 - Hearsay; Maker available.
S76 - Opinion rule.
S81 - Admissions an exception to hearsay and opinions.
S84 - Mandatory exclusion (violence or threat)
S85 - Mandatory exclusion
(Capability to understand or inducement)
S97 - Tendency.
S98 - Coincidence.
S101 - Rules re Tendency and Coincidence
S114 - Visual Identification Evidence
S115 - Identification by pictures
S138 - Improper/illegally obtained exclusions
S139 - Caution
83
An acronym to assist with the recollection of S16B of the Bail Act (Show cause offences) is;
- L. I. B. S. (👄)
- F. U. M. S. (👍)
- S. A. D. (😥)
- C. O. W. (🐄)
What do all 14 points mean?
The show cause offences are;
👄
L - LIFE imprisonment (offence)
I - sexual INTERCOURSE with <16 as a >18
B - actual BODILY harm w/i to have sexual intercourse with <16 as a >18
S - SERIOUS personal violence; w/prior conviction.
👍
F - serious FIREARM and public order offences using firearm or military weapon.
U - UNLAWFUL possession of firearm or military style weapon.
M - MANUFACTURING / supplying pistol or prohibited firearm.
S - SELLING or manufacturing military style weapon or selling on 3+ occasions any prohibited weapon.
😥
S - SUPERVISION order and commits indictable offence or fails to comply with the order.
A - ATTEMPTS, assisting, aiding, abetting, procuring, soliciting, accessory, encouraging, inciting or conspiring (machinery offences) a serious indictable offence.
D - Supply, cultivation, manufacture, production of Commercial quantity DRUG or plant.
🐄
C - COMMONWEALTH drug offences regarding commercial quantity; inc cultivation, supply, possession, manufacture and production.
O - ON bail, or parole at the time of a serious indictable offence.
W - WARRANT had been issued and committed a serious indictable offence.
84
Bail - unacceptable risk test
Before making a bail decision a bail authority must assess any bail concerns.
Bail concern is a concern that if released an accused will what?
a) Fail to appear at court, or
b) Commit a serious offence, or
c) Endanger safety of victims, individuals, community, or
d) interfere with witnesses or evidence.
85
Regarding the case R -v- Plevac what can police do in the course of questioning a suspect?
Police may, in the course of questioning put to the suspect the facts, as the police know, or believe, or suspect them to be.
86
Section 281 of the Criminal Procedure Act 1986 relates to the requirements regarding admissions for all Table 1 and Strictly Indictable matters. In order to ensure their admissibility what must be done?
Admissions made by a defendant for a Table 1 or SIO offence must be electronically recorded.
(this can include audio or audio and video)
Unless the prosecution can satisfy a reasonable excuse as to why that electronic recording could be made. These include;
- Mechanical failure,
- Refusal by the person to be electronically recorded, and
- Lack of availability of equipment within a reasonable time period.
87
How many days are required to serve a notice regarding tendency or propensity evidence at each of the three levels of courts?
Local: 14 days
District: 21 days
Supreme: 14 days
88
You receive a subpoena for production regarding police training material; do you have to supply the material and why/why not?
-No; respond to the subpoena with a report objecting to the production of the material citing Public Interest Immunity - police methodology.
89
You receive a subpoena to produce and give evidence regarding the details of a registered source. Do you have to comply and why?
No - we can object on the basis of a Public Interest Immunity claim regarding release the details of a registered source. Cite your reasons, such as the release of the source’s detail will put them at risk of harm. The Crowne Solicitors office will allocate an advocate to argue this point on behalf of the police.
90
With regards to GIPA (Government Information (Public Info) Act; what does OPIAD mean?
- Overriding public interest against disclosure.
91
In accordance with S14 of the Government Information (Public Information) Act; what are the 7 Public Considerations against disclosure?
1) Responsible and effective Governments - Prejudicial effect against a government agency, entity or function.
2) Law Enforcement and Security - Reveal informant, prejudice an investigation, prejudice emergency response, endanger safety, endanger security, facilitates a crime, prejudice lawful custody, prejudice a correctional facility.
3) Individual rights; reveals personal info, exposes them to risk or discloses child info.
4) Business interests; undermines business, reveals confidential info, prejudices the business.
5) Environmental matters; Endangers welfare of environment, nature, heritage, culture etc; inc. ATSI info.
6) Secrecy provision; the release of that info is prohibited by law.
7) Exempt documents under interstate freedom of info legislation.
92
What is Doli Incapax?
It is a REBUTTABLE PRESUMPTION that child aged between 10 to 14 years cannot be held CRIMINALLY LIABLE for their actions as they do not possess the MENS REA. However the prosecution can ARGUE that the child UNDERSTOOD what they had done was SERIOUSLY WRONG.
The evidence required to establish SERIOUSLY WRONG is dependant on their age and cognitive ability to understand. This is a SLIDING SCALE; more required the younger they are.
93
What does the case of R v CRH (the leading case in NSW re doli incapax) say about doli incapax?
The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.
The child knew the act was seriously wrong as opposed to naughty.
The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction.
The evidence to prove the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however, horrifying or obviously wrong the act may be.
The older the child is the easier it will be for the prosecution to prove guilty knowledge.
94
Under what two categories can you object to a subpoena?
- Public interest immunity
| - Legitimate forensic purpose
95
During a trial in which a majority verdict is accepted by the judge. How many members of the Jury are required to establish a finding of Guilty?
At least 10 out of 12
Section 55F of the Jury Act
96
In accordance with Section 33 of the Evidence Act, what can police do?
Read their statement onto record or be lead through their statement by the prosecutor.
