Short Answers 2 Flashcards
The fundamental principle 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?
1: Where a specific statutory exceptions exist
2: Where section 67(8) of the Summary Proceedings Act 1957 applies
The fundamental condition for the admissibility of evidence is that it must be relevant. What is the two prong test of relevance? Describe each prong:
1: Materiality - This checks if the evidence relates to an important fact in the case.
2: Probativeness - This checks if the evidence helps to prove or disprove that important fact.
Section 37 EA 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:
1: Lack of veracity on the part of the person when under legal obligation to tell the truth
2: Any previous inconsistent statements made by the person
3: Bias on the part of the person
4: A motive on the part of the person to be untruthful
Define “statement”
A statement is something that someone says, writes, or does to show they are making a claim or expressing an idea.
What are ‘Presumptions of Law”
They are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable.
What are “Presumptions of Fact”:
Are facts that the mind naturally and logically draw from the facts given.
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:
CHANT
Contents of the statement
How the statement was taken
Accuracy of the statement
Nature of the statement
Truthfulness of the maker of the statement.
What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by sections 24 & 25 of the Evidence Act 2006?
JAOO
Justifications for the rule derive from this rationale:
- A simple opinion from a witness holds little probative weight
- Opinion evidence can interfere with the jury’s role in interpreting facts, potentially confusing them and lengthening the trial.
- Opinions may rely on other evidence that isn’t allowed in court, for example where an opinion is based largely on propensity evidence.
The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination.
What are the three reasons why leading questions are not generally permitted?
1: People often tend to say “yes” to suggestions, even if it doesn’t fully match their own views of what happened.
2: It is easier for counsel to get the answers they want from their own witnesses which reduces the spontaneity and genuineness of their testimony.
3: There is a danger that leading questions can lead to the manipulation of evidence due to possible collaboration, conscious or not, between counsel and the witness.
List four of the functions of the judges role in a trial by jury:
TDEG
1: To decide which evidence is admissible.
2: Determine if there’s enough evidence for the jury to consider.
3: Explain the relevant laws related to the case.
4: Guide the jury on how to evaluate the evidence.
Briefly outline the four reasons why hearsay evidence is generally excluded?
WJWT
1: When the person making the statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on
2: Juries can’t properly assess evidence without seeing how the original speaker acted when making the statement.
3: Witnesses might misunderstand or misrepresent what others said.
4: There’s a risk of giving too much importance to evidence that hasn’t been properly tested. Evidence must be reliable enough for the jury to consider it and reach their own conclusions.
Give two exceptions to the general rule concerning leading questions?
1: Contradiction
2: Hostile witness
3: Assisting memory
4: Identification
Define ‘direct evidence’:
It is any evidence given by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.
Define ‘Admissible evidence’:
Evidence is admissible if it is legally able to be received by a court.
When is a witness deemed to be unavailable as a witness according to section 16(2) of the Evidence Act 2006:
When a person is:
1: Dead
2: Is overseas and can’t be contacted
3: Is unfit to be a witness because of age, physical or mental condition
4: Cannot with reasonable diligence be identified or found
5: Is not compellable to give evidence
Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. The duty to cross-examine will arise under the Act when:
TTTT
1:The cross-examination deals with significant matters in the proceeding.
2: The matters are relevant and in issue
3: The matter must ‘contradict the evidence of the witness’
4:The witness should be able to provide admissible evidence on those topics.
What are the two exceptions to the general prohibition on previous consistent statement (S35, EA 2006)
A previous consistent statement can be used in court if it’s needed to:
1: Address doubts about the witness’s veracity or accuracy due to earlier conflicting statements, or
2: Counter claims, that the witness recently made up their story.
There are two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law. Name the two types of offences:
Perjury and related offences (S108, 110 & 111 CA 1961)
Treason (S73 CA 1961)
In order to be admissible under section 24, the statement of opinion must fulfil two basic criteria:
1: Opinion must be the only way to effectively communicate the information to the finder of fact
2: The witness must be stating an opinion from something personally perceived.
