Rules of Evidence and Procedure

Question 1

What is natural justice?

Answer 1

The idea that people have certain rights that were inherently deserved and should not be removed.

Question 2

What are the 3 governing principles of natural justice?

Answer 2

• Everyone has the right to be heard
• No person may judge their own case
• All persons will receive ‘due process of law”

Question 3

What are the additional features of natural justice in Australia?

Answer 3

• An independent judiciary that is impartial and free from government interference
• A fair trial that involves:
  
  • A trial before a jury of your peers
  • Legal representation
  • A right to test the others evidence
  • Presumption of innocence in a
    criminal trial
  • A speedy trial

Question 4

What are the principles of criminal law?

Answer 4

• Accused people are presumed innocent until proven guilty beyond reasonable doubt
• The burden of proof lies on the prosecution
• Double jeopardy
• Accused has the right to silence
• Accused has a right to be represented and heard
• Evidence can be challenged

Question 5

What are the two tiers of the right to silence?

Answer 5

The right of a suspect to:
- say nothing in the face of police questioning
- say nothing during a trial

The right of silence also includes that no inference of guilt can be drawn from the exercise of this right – just because I exercise my right to say nothing does not mean the jury or judge can assume that I have something to hide or that I am guilty

Question 6

What are the origins of the right to silence?

Answer 6

• Very old and can be traced back to an English trial in 1316
• It began as a privilege against self incrimination when torture was regularly used to extract confessions
• Codified in the Evidence Act 1898

Question 7

What are some criticisms of the right to silence?

Answer 7

• Many consider the right to silence to be a trick or tactic
• Abused by hardened criminals
• Hampers police
• Terrorism waterboarding

Question 8

Why is having a continuous trial important?

Answer 8

• Ensures that both parties must have prepared the best case possible before the commencement of the trial.
• It also means lawful conclusions can be reached at the conclusion of the trial (the idea is that the defendant only has to face court on one occasion.

Question 9

What is evidence?

Answer 9

any information presented in court to assist a judge/jury to determine facts of the case.

Question 10

How must evidence be introduced?

Answer 10

All evidence must be introduced by a witness, so that it’s provenance (authenticity and quality) can be subject to cross-examination.

Question 11

What are the 2 categories of evidence?

Answer 11

admissible or inadmissible

Question 12

What is perjury?

Answer 12

When a witness knowingly misleads a court. If convicted of perjury, an individual may face criminal penalties.

Question 13

What happens before a witness can give evidence?

Answer 13

Must swear an oath or affirmation

Question 14

What are the categories of admissible evidence?

Answer 14

Direct
Indirect
Primary
Secondary
Opinion evidence

Question 15

What is direct evidence?

Answer 15

original evidence of what was seen, heard, smelt or felt – e.g. eye witness

Question 16

What is indirect evidence?

Answer 16

circumstantial evidence from which facts can be inferred – e.g. fingerprints at crime scene prove that accused had been there

Question 17

What is primary (best) evidence?

Answer 17

original objects and documents – e.g. the murder weapon

Question 18

What is secondary evidence?

Answer 18

which suggest the existence of best evidence but it is not available – e.g. photocopies of forged documents

Question 19

What is opinion evidence?

Answer 19

Evidence from experts in the field i.e. forensic pathologists

Question 20

What are the categories of inadmissible evidence?

Answer 20

Hearsay
Illegally obtained evidence
opinion evidence
past criminal record

Question 21

What is hearsay evidence?

Answer 21

not direct evidence but been relayed from one person to another – e.g. gossip spread by someone wo was not there or didn’t actually see or hear anything but “heard about it.”

Question 22

What is illegally obtained evidence

Answer 22

e.g. a confession without prior advice about right to remain silent, confession under duress, unlawful surveillance

Question 23

What is an example of evidence being illegally obtained?

Answer 23

Coco v R [1994]

Question 24

What happened in Coco v R [1994]?

Answer 24

• Mr Coco was convicted in QLD.
• He was convicted of attempting to bribe a Commonwealth Officer.
• A lot of the evidence against Mr Coco was captured on a listening device installed on his phone by two federal police officers, dressed as telephone repair men.
• Mr Coco initially appealed to the Supreme Court of QLD, which upheld his conviction.
• Mr Coco appealed to the High Court, arguing that while a judge had granted the policemen authority to install the listening device in his telephone legally, the legislation did not grant the policemen authority to enter his property install the device- and that this was a breach of his privacy which was protected by the Invasion of Privacy Act 1971 (QLD).
• High Court- upheld the appeal and quashed the conviction- on the basis that the evidence had been illegally obtained.

Question 25

Why can opinion evidence sometimes be inadmissible?

Answer 25

If it is by a person not an expert in the field

Question 26

Why are past criminal records inadmissible evidence?

Answer 26

prejudicial, not relevant to whether the accused committed THIS offence. Note: can be taken into account by the judge for sentencing if the accused is found guilty