Week 6 Flashcards
S.59 The Hearsay Rule what is the 3 Part Test (exclusion of Hearsay Evidence)
- Previous representation
- Made by a person
- Relied upon for proof of its asserted facts
S.60(1)
S.60 (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
Walton V Queen (1989) HCA
Hello Daddy, S.59 Evidence Act
Maker Unavailable Section
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was—
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
Is S60 an exemption to the hearsay rule?
No, it is hearsay for a non hearsay purpose, i.e search powers
What is the legislative term for the hearsay purpose
Asserted fact purpose
Is a S.257 certificate hearsay?
Yes, but exempt under section 59 (3)
What is an attempt
“an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted”
HAUGHTON v SMITH[1973]
What is specific intent?
The offence MUST be a crime of specific intent
We can not use an attempt provision for Offences of recklessness/negligence (see WHYBROW 35 Cr App R141)
History of impossibility defence
R v MAI and anor (1991)
Adopted the VIC view (BRITTEN v ALPOGUT [1987]) and is NSW authority that impossibility is no longer available as a defence to a charge of attempt
Woolmington v Director of Public Prosecutions [1935] - Golden Thread
that it is the duty of the prosecution to prove the prisoner’s guilt
First Leg
Law - Could
Second Leg
Fact - Should
What do we submit on in each leg
1st - Prosecution case at highest
2nd - All of the evidence
When can defence not call their client
After second leg submissions
