Rules of Evidence and Procedure Flashcards
What is natural justice?
The idea that people have certain rights that were inherently deserved and should not be removed.
What are the 3 governing principles of natural justice?
- Everyone has the right to be heard
- No person may judge their own case
- All persons will receive ‘due process of law”
What are the additional features of natural justice in Australia?
- 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
What are the principles of criminal law?
- 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
What are the two tiers of the right to silence?
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
What are the origins of the right to silence?
- 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
What are some criticisms of the right to silence?
- Many consider the right to silence to be a trick or tactic
- Abused by hardened criminals
- Hampers police
- Terrorism waterboarding
Why is having a continuous trial important?
- 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.
What is evidence?
any information presented in court to assist a judge/jury to determine facts of the case.
How must evidence be introduced?
All evidence must be introduced by a witness, so that it’s provenance (authenticity and quality) can be subject to cross-examination.
What are the 2 categories of evidence?
admissible or inadmissible
What is perjury?
When a witness knowingly misleads a court. If convicted of perjury, an individual may face criminal penalties.
What happens before a witness can give evidence?
Must swear an oath or affirmation
What are the categories of admissible evidence?
Direct
Indirect
Primary
Secondary
Opinion evidence
What is direct evidence?
original evidence of what was seen, heard, smelt or felt – e.g. eye witness
What is indirect evidence?
circumstantial evidence from which facts can be inferred – e.g. fingerprints at crime scene prove that accused had been there
What is primary (best) evidence?
original objects and documents – e.g. the murder weapon
What is secondary evidence?
which suggest the existence of best evidence but it is not available – e.g. photocopies of forged documents
What is opinion evidence?
Evidence from experts in the field i.e. forensic pathologists
What are the categories of inadmissible evidence?
Hearsay
Illegally obtained evidence
opinion evidence
past criminal record
What is hearsay evidence?
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.”
What is illegally obtained evidence
e.g. a confession without prior advice about right to remain silent, confession under duress, unlawful surveillance
What is an example of evidence being illegally obtained?
Coco v R [1994]
What happened in Coco v R [1994]?
- 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.
