S/As Flashcards
Referring to a notebook?
- Ask the courts permission.
- Introduce the material properly.
- Remember their defence and Jerry are entitled to view your notes, so seal off other entries.
- Remember that you are only allowed to refresh your memory, you cannot read the whole entry unless you have permission to read the notes of the interview.
Directions about evidence given by children. To be treated the same way.
Thus it prohibits:
- The judge from giving warnings about the absence of corroboration
when a warning would not have been given in the case of an adult complainant - Any direction or a comment that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.
List four warnings a judgement give under section 122(2).
In relation to evidence which may be unreliable.
Judge may warn (1a) whether to accept and (1b)weight to be given
A) Hearsay evidence.
B) Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant.
C) Evidence given by witness who may have a motive to give false evidence that is prejudicial to a defendant.
D) Evidence of a statement by the defendant to another person made while both the defendant and the other person with detained in prison, police station, or another place of detention.
E) Evidence about the conduct of the defendant if that contact is alleged to have occurred more than 10 years previously.
What may the judge take into account for purposes of 85(2) for unacceptable questions?
a) the age of maturity of the witness
b) any physical, intellectual, psychological or psychiatric impairment of the witness
c) the linguistic or cultural background or religious beliefs of the witness
d) the nature of the proceeding
e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding
What are the two sets of rules for referring to relevant notes and statements. refreshing memory
One relates to refreshment of memory by reference to written documents in court.
The other relates to refreshment of memory out of court. Eg Whatever means to refresh my memory prior to trial
What is corroboration?
It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged
Apart from the exceptions there is no requirement for a general warning to the jury about the dangers of relying on uncorroborated evidence
Claiming privilege against self-incrimination in court proceedings.
What would privilege be granted under 62(2)
A person who claims a privilege against self-incrimination in court proceedings must offer sufficient evidence to enable the judge to assess whether self incrimination is reasonably likely if the person provides the required information
What is an expert and how do they demonstrate it
And expert is a person who has specialised knowledge or skills based on training, study or experience. The judge must determine whether the expert witness is properly qualified to testify.
They are required to demonstrate to the court that he or she has the requisite qualification to be deemed expert in the field in question.
Communication with legal advisors
- The communication must be intended to be confidential.
- The communication must be made for purposes of obtaining or giving legal services.(authorised reps)
- The privilege is vested in the person seeking or receiving the legal services
- Privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
- Provided it was intended to be confidential, even if overheard does not abrogate the privilege, even if no precautions to preserve conversation were taken.
Rationale behind section 59
Is to encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from him they seek help
What are the conditions and limits under re examination?
After cross examination by opposing counsel, the party who called the witness may re-examine that witness for the purpose of clarifying or qualifying any issue raised during cross-examination but may not be questioned on any other matter except with the permission of the judge.
If additional evidence is allowed by the judge, then the other parties must be allowed to cross-examine on the additional evidence
General prohibition on previous consistent statements
35(2)a previous statement of a witness that is consistent with the witness evidence is admissible of the statement:
A) Responds to a challenge that has been made to the witnesses veracity or accuracy, based on a previous inconsistent statement Of the witness or on a claim of recent invention on the part of the witness.
B) Forms and integral part of the events before court
C) Consists of the mere fact that a complaint has been made a criminal case.
Even though evidence is relevant + reliable, it may be excluded if it would result in unfairness. That usually arises in two ways discuss these?
And when would confession be excluded
- Evidence may be excluded if it would result in some unfair prejudice in the preceding.
- Evidence not prejudicial in itself In terms of the actual verdict may still be excluded where it has been obtained circumstances that would make its admission against the defendant unfair.
Eg Statement of defendant obtained by unfair or improper methods. The confession may well be impeccable evidence but the way in which it was obtained may lead to exclusion under the fairness discretion.
Presumption of innocent - 2 exceptions
Defence of insanity is claimed
S202A(4)(b)
Public welfare regulatory offence.
