Week 7

Question 1

Who makes the determination in relation to the question of law in a Voir Dier

Answer 1

The Judge / Magistrate

Question 2

Section 189 Evidence Act 1995

Answer 2

(1) If the determination of a question whether—
(a) evidence should be admitted (whether in the exercise of a discretion or not), or
(b) evidence can be used against a person, or
(c) a witness is competent or compellable,

Question 3

DPP v Zhang 2007 NSWSC 308

Answer 3

• the grant of a voir dire by a Court is a matter of discretion and not a right of the party requesting.
• the party seeking the voir dire must first satisfy the Magistrate that there are reasonable grounds for a voir dire and must identify the issues to which it is directed.
• Specification by counsel of issues to be examined is important to allow objections to be taken and considered on relevance.
• the need for a Magistrate to identify with precision the material which is objected to, and the basis for the objection.
• where a voir dire is permitted, there is a further need for a Magistrate to rule upon the admissibility of the evidence which is objected to in clear and understandable terms during the prosecution case.

Question 3

S.189 (3) Evidence Act 1995

Answer 3

In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.

Question 4

What are the 3 points in Section 135 of the Evidence Act 1995

Answer 4

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

Question 5

What is probative value and cite the case?

Answer 5

Probative value is determined by taking evidence at its highest: R v Shamouil [2006] NSWCCA

Question 6

Papakosmas v The Queen HCA

Answer 6

Evidence is not unfairly prejudicial just because it suits prosecution case. Must be actually unfair

Question 7

S.138 (3) Evidence Act

Answer 7

(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note—

Question 8

strands
Links in the chain case law

Answer 8

Peacock v the King
Shepherd v the Queen

Question 9

Know 4 circumstantial case law

Answer 9

Chamberlain
Peacock
Baden Clay
Dawson

Question 10

Difference between circumstantial and direct evidence

Answer 10

Circumstantial can be an inference

Question 11

3 steps to prove guilt with circumstantial evidence

Answer 11

basic fact (individual piece of evidence)
Intermediate fact (single or combination of facts)
ultimate inference of guilt (proof beyond reasonable doubt)