SHORT ANSWERS - PART 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 2 exceptions to this rule?
- Statutory exceptions, written in legislation.
- Legal burden of proof is placed on the defendant - the defence of insanity (S23.1 CA 1961)
The fundamental condition for the admissibility of evidence is that it must be relevant.
What is the 2 prong test of relevance? Describe each prong…
Materiality and Probativeness:
- Materiality asks whether the evidence is offered on a matter of fact at issue in the case (of consequence to the determination of the proceeding - S7(3)
- Probativeness asks whether the evidence has a logical “tendency to prove or disprove” the material proposition on which it is offered (s7(3))
***The fundamental condition for the admissibility of evidence is that it must be relevant.
According to section 7 of the Evidence Act 2006, when might relevant evidence NOT be admissible in a proceeding?
If it is inadmissible under a provision of the Evidence Act 2006 or any other Act. If it is excluded under the Evidence Act or any other act.
***Section 37 of the Evidence Act 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 4 of these matters.
- Lack of veracity on the part of the person when under a legal obligation to tell the truth.
- That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
- Any previous inconsistence statements made by the person
- Bias on the part of the person
- A motive on the part of the person to be untruthful.
***What are presumptions of law?
Are inferences that have been expressly drawn by the law from particular facts. They may be conclusive or rebuttable.
***What are presumptions of fact?
Are those that the mind naturally and logically draw from the facts given
Eg. one presumes a person has guilty knowledge if they are in possession of recently stolen goods. Presumptions of fact are simply logical inferences and so are always rebuttable.
What is the rationale behind the general exclusionary evidence whereby an opinion is not admissible except as provided by section 24 & 25 of Evidence Act 2006?
- Where a witness offers a bare opinion it holds little probative weight
- There is a danger that a witness offering opinion evidence will “Usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be that the evidence would confuse the tribunal of fact and prolong proceeding.
- A witnesses evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible - for example where an opinion is based largely on propensity evidence
***Section 85 of the Evidence Act 2006, enables a judge to disallow, or direct that a witness is not obliged to answer, certain types of questions.
List 4 types of questions that may apply?
- Improper
- Unfair
- Misleading
- Needlessly repetitive
- Expressed in language that is too complicated for the witness to understand
Describe what is Privilege in relation to giving evidence?
A privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.
***Most of the laws of evidence relate to the things that cannot be given in evidence. List 4 of the matters that the exclusive rules of evidence deal with?
- Veracity
- Propensity
- Hearsay
- Opinion
- Identification
- Improperly obtained evidence
***Name 4 privileges outlined in the Evidence Act 2006?
- Communication with the following:
- Legal Advisors
- Ministers of Religion
- Medical Practitioners
- Clinical Psychologist
- Informers (Informants)
- Journalists
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 3 reasons why leading questions are not generally permitted? -
- There is a natural tendency for people to agree with suggestions put to them by saying “YES” even if those suggestions do not precisely accord with their own view of what happened
- Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
- There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness
***The goal of evidence in chief and re-examination is to draw out the witness’s own recollection.
a) What is a leading question
b) Provide two exceptions found in Section 89 of the Evidence Act 2006 to the general rule with regard leading questions.
A)
A leading question is one that directly/indirectly suggests a particular answer to the question
B)
1) Question relates to introductory or undisputed matters
2) question is put with the consent of all parties
3) Judge can exercise judges’ discretion and allow the question
List 4 of the functions of the judges role in a trial by jury?
- To decide all questions concerning the admissibility of evidence
- To determine whether there is any evidence that is fit to be submitted to the jury for its consideration
- To explain and enforce the general principles of law that are applicable to the point at issue
- To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
What is R v Wanhalla (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.” The crown must prove the accused is guilty beyond reasonable doubt.
