SHORT ANSWERS - PART 1 Flashcards
**What did the case Woolmington v DPP establish in relation to the presumption of innocence?
The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington Principle”.
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all the elements of the offence.
***Throughout the course of a trial there are differing standards of proof within the laws of evidence that relate to both the prosecution and defence.
What is the standard of proof applies to?
a) Prosecution
b) Defence
a) Prosecution
“Beyond Reasonable Doubt” - “An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.” Where the jury is sure of the defendant’s guilt
b) Defence
On a balance of probabilities, it is more probable than not.
What are Hostile Witness questioning?
1) Asking leading questions
2) Asking questions designed to probe the accuracy of memory and perception
3) Asking questions as to prior or inconsistent statements
4) Other challenges to veracity, including evidence from other witnesses
What 4 fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?
- relevance
- reliability
- unfairness
- public interest
***What is a leading question (a) ? What is the general rule in relation to a leading question (b)?
(a) a leading questions as one that directly or indirectly suggests a particular answer to the question
(b) the general rule is that leading questions may not be asked during examination in chief or re-examination
Briefly explain what a “Vior Dire” is?
- A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
- It is conducted without a jury being present
***A witness giving evidence during a trial claims privilege against self incrimination and declines to answer.
Discuss when privilege would be granted by the Court under Section 62(2)?
A person who claims privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information.
***List 4 categories of privilege?
- Privilege against self-incrimination
- Marital privilege
- Professional confidences
- Public policy
- Police informants
Reliability of hearsay evidence?
a) Where the maker of a statement is not called as a witness and is unable ot be cross examined
b) concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
c) Danger that witnesses will make mistakes about the meaning or content of statements made by other people. Game of ‘Chinese whispers’.
***With regards to reliability, Section 16(1) Evidence Act 2006, defines “circumstances” in relation to a statement by a person who is not a witness.
Name four of these “circumstances”?
a) Nature of the statement
b) Contents of the statement
c) Circumstances that relate to the making of the statement
d) Circumstances that relate to the veracity of the statement
e) circumstances that relate to the accuracy of the observation of the person
Explain Qualifications as an Expert?
An 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. Opinions given by non-experts on matters calling for expertise will be inadmissible.
The expert is required to demonstrate to the court that they have the requisite qualification to be deemed and expert in the field in question. The expert must be qualified through formal study and training, from experience, or both. Evidence offered by an expert should be within their area of expertise.
***What does the Judge consider in relation to the suitability of the witness (meaning whether witness understands the questioning)?
a) Age and maturity of the witness
b) Any physical, intellectual, psychological, or psychiatric impairment of the witness
c) The linguistic or cultural background or religious beliefs if the witness
d) Nature of the proceeding
e) In the case of a hypothetical question, if the hypothesis will be proved by other evidence during the proceeding
**Before a summons is served the following verification must be made… (list 4)
1) Whether they are allowed to give evidence
2) Whether they are required to give evidence
3) Weather they can refuse to give evidence
4) What type of witness they will be
***Evidence that is both relevant and reliable may be excluded if it would result in unfairness.
Discuss the two ways this usually arises and may result in the exclusion of evidence?
a) have an unfairly prejudicial effect on the proceeding
b) where it has been obtained in circs that would make its admissions against the defendant unfair.
Oaths and affirmations – Witnesses under 12 must?
- Be informed by the judge of the importance of telling the truth and not telling lies AND
- After being given that information, make a promise to tell the truth before giving evidence.
