Evidence

Question 1

Woolmington Principle

Answer 1

The Burdon of proof lies clearly with the prosecution in relation to all elements of the offence.

Question 2

Beyond reasonable doubt

Answer 2

A very high standard of proof which the crown will have met only if at the end of the case you are sure the accused is guilty.

Question 3

Reasonable doubt

Answer 3

An honest uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

Question 4

Balance of probabilities

Answer 4

It must simply show that it’s more probable than not

Question 5

Visual identification evidence

Answer 5

A confident statement by a person based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place when the offending was done. An account whether oral or in writing of the confident statement described above.

Question 6

Formal procedure photo montage

Answer 6

• ASAP
• No few than 7
• No indication to who the suspect was is provided
• Advised may or may not be there
• Montage is sworn in
• Pictorial record and sworn in to be true and correct by the officer who conducted the montage
• Any other requirment

Question 7

Reasons for not following formal procedure

Answer 7

• Suspect refuses to take part
• Appearance of suspect can not be disguised
• Change in appearance
• ID wasn’t believed to be an issue
• ID was made to OC soon after the offence in the investigation period
• ID made to an OC in a chance meeting

Question 8

Effect of S45 visual ID

Answer 8

• Visual ID will be admission unless defence can prove on balance of probabilities it is unreliable.
• Issues with how it was conducted
• If no formal ID conducted it will be inadmissible unless prosecution can prove that ID is reliable beyond reason doubt
• Conducted by enforcement agencies other than Police.
• Only applies to those suspected of committing an offence
• Avoids dock ID

Question 9

Who should conduct ID Parade

Answer 9

Sergeant, senior sergeant or above

Question 10

Formal procedure

Answer 10

• 7 Similar appearance individuals should be picked
• Not police members
• Different participants should be used if there is more than 1 parade for the witness
• Suspects to be advised that they do not need to take part and may have a lawyer present
• Witness not allowed to see suspect before the parade
• Must be told may or may not be there
• OC must record the any indication or person picked out
• A written or pictorial record should be made of the procedure

Question 11

Good reasons for not following formal procedure

Answer 11

• Refusal to participate
• Singular in appearance
• Change in appearance ( If there is a delay)
• ID doesn’t appear to be an issue

Question 12

Recognition

Answer 12

• Identification made shortly after the offence ( IE shows the officer on arrival)
• Chance meetings

Question 13

Admissibility of voice ID

Answer 13

Voice ID is not admissible unless the prosecution proves on the balance of probabilities that the evidence is reliable.

Prosecution only needs to prove that evidence is probably reliable.

Question 14

Defendant statements

Answer 14

Evidence offered by the prosecution of statement made by a defendant is not admissible against a co defendant.

Relates to accuracy and soundness of the statement.

Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it’s excluded under:

• The reliability rule (s28)
• The oppression rule (s29)
• The improperly obtained evidence rule (s30)

Question 15

Section 28 Reliability rule

Answer 15

Applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if:

• The defendant offers issues with reliability and advises the judge.
• The judge raises the issue and informed the prosecution.

The judge may exclude the statement unless satisfied that on the balance of probability that the circumstances in which the statement was taken did not effect reliability.

Exceptions:

• If the prosecution wishes to use the statement as evidence of the defendants physical, mental or phycological condition.
• Where the prosecution offers the defendants statement only as evidence of if it was made.

Question 16

Section 29 Oppression rule

Answer 16

Definition - Violent, inhuman, degrading conduct or treatment towards the defendant or a threat of conduct or treatment of that kind.

The defendant may advise the judge. The judge will advise the prosecution.

May exclude the statement unless satisfied beyond reasonable doubt that the statement was not influence by oppression.

Question 17

Section 30 improperly obtained evidence

Answer 17

-Evidence is improperly obtained if they breach section 3 of the BOR act 1990
- That I would be inadmissible if offered by prosecution
- unfairly

Judge must determine under the balance of probabilities whether or not the evidence was improperly obtained.

• A member of police may ask questions of any person who it is though that useful information may be obtained. Must not suggest it’s compulsory.
• If police have sufficient evidence to charge they must be cautioned prior to.
• Questions of a person in custody must not amount to cross examination.
• Statements or evidence by others must be fairly explained.
• Preferably in video. Must be given the opportunity to review and fix errors. If written must be asked if he/she wishes to record it as correct by signing it.