Criminal procedure EXAM- Cheat- Sheet PDF

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cheat sheet perfect to prompt what to write in the final exam as well as handy hints...

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RELEVENCE

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Section 56 EA: Only relevant evidence is admissible o Section 55: Relevance is evidence (direct or circumstantial) that has RATIONAL CONNECTION to the FACT IN ISSUE (the elements of an offence) – such connection increases or decreases the probability of that fact coming into existence. EXAMPLE: Security footage camera captures video of someone break & enter – however image very blurry. Cannot identify the accused. Police arrest X on suspicion that he is the accused. The prosecution call in police officer and ask how he came to conclusion that X was accused. Police states that he saw security footage and “may had an idea who the accused was”. This would be inadmissible because the police officer's evidence could not rationally affect the assessment of the probability that it was X in the video (he is no better position than jury to know who accused is).

FORMS OF EVIDENCE: DOCUMENTARY EVIDENCE

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Section 47 EA: Documentary evidence - refers to the use of a document as evidence of the CONTENTS of the document (ie the information recorded) WHICH IS SOUGHT TO BE ADDUCED EXAMPLE: recorded information whether it be on paper, tape or computer device.

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Section 48 EA: You can adduce information from a document in the following ways o Tendering the original document o Admission made by another party as to the document in question o Tendering a copy of the document in question o Tendering a transcript of words recorded in a device that can reproduce sound or a document on which words are recorded in code (such as shorthand writing) *NOTE!: if sound is indistinct a transcript can be used to assist the jury in understanding what is recorded on the tape BUT CAN ONLY BE USED AS AN AIDE-MEMOIRE ONLY! – Butera v DPP o o o

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Tender a document produced by a device that stores information Tender a document that forms part of the records of business Tender a document that is a copy of the public document in question by an appropriate authority

Section 51 EA: You are now allowed to use copies of the original document

FORMS OF EVIDENCE: REAL/OTHER EVIDENCE 

Section 52 EA: Real evidence – physical objects that can be admitted into the court as EXHIBITS and the jurors can EXAMINE or USE them in any REASONABLE MANNER

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“reasonable manner” – The jury o o o

1. Must apply their own common sense 2. Cannot substitute their inexpert opinion where expert evidence has been given 3. Must not go beyond examination such that it would make new evidence – Kozul v R

Section 53 EA: Judge may on application order demonstration, experiment or inspection on satisfaction that 1. 2.

Parties given reasonable opportunity to be present Judge and jury will be present

Following facots MUST BE TAKEN INTO ACCOUNT when exercising discretion -

Party may choose not to be presence at inspection – R v Milat Whether such demonstration will resolve fact in issue or understanding Danger of creating evidence that is prejudice, misleading or confusing Whether a place or thing has materially altered when it comes to inspection EXAMPLE: Crime scene that has changed due to bad whether.

Section EA 54: Court allowed to draw any REASONABLE INFERENCE from what is sees, hears or notices during a demonstration, experiment or inspection.

HEARSAY EVIDENCE 

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Section 59 of EA – evidence that is of o Previous representation made outside of court o Used to prove that the asserted facts in that representation are true Such evidence is not admissible as it was given by someone not under oath and there is no way to test that evidence (as the maker may have been lying or impaired) REPRESENTATION – EA DICTIONARY: A representation can be o Express or implied (whether oral or in writing) o o A representation to be inferred from Conduct o A representation not intended by its maker to be communicated to or seen by another person PREVIOUS REPRESENTATION – is any of those listed representations made outside of court  

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NOTE: Section 59(2A) – for implied hearsay you are take into account the circumstances in which the representation was made (what did the person intend to assert) EXAMPLE: Little boy saying “hello daddy” on phone – is it what he intended? or was it just a natural byproduct. If intended, then it will be hearsay.

NOTE!: Representation must be MADE BY A HUMAN BEING – does not apply to  Machine or electronic generated information where there is NO HUMAN INPUT  Conduct from animals (even if they understand human commands)

Using a previous representation for the PURPOSE THAT SOMETHING WAS SAID rather than using it to prove the facts asserted WILL NOT BE HEARSAY o EXAMPLE: X is accused of murdering Y for revenge for having an affair with (X) wife On X possession police find Y mobile with a text message sent to X girlfriend saying that he loves her Although this text message is a previous representation the prosecution will not use it to prove that the facts in that text message are true INSTEAD they will use it for establishing motive for X to kill Y (X reading that text would make him angry regardless if that text is true or not)

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EXCEPTION TO HEARSAY RULE (INCLUDING ADMISSIONS) Section 60 EA: HEARSAY EVIDENCE RELEVANT FOR NON HEARSAY PURPOSE  If a previous representation is admitted for its non-hearsay purpose ie to disprove a current representation, then it can be used for its hearsay purpose!  EXAMPLE: X is an eye witness to a car accident. X provides a police statement saying that the light was red (previous representation). In court X is in the witness box and says the light was green. Prosecution says X is lying and produces police statement saying light was red. Prosecution is now allowed to use X police statement (previous representation) to say that the light was red.

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Section 65 EA: FIRST HAND HEARSAY IF MAKER IS NOT AVAILABLE  You are allowed to use a previous representation if it is FIRST HAND HEARSAY, the person who made the previous representation is UNAVAILABLE and the representation was given in CIRCUMSTANCES THAT GUARANTEES THE RELIABILITY

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FIRST HAND HEARSAY  Section 62 of EA: FISRT HAND HEARSAY - where the maker of the representation perceived the facts with their senses.

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UNAVAILABLE o S4 EA DICTIONARY – unavailable means the maker is  Dead  Not competent to give evidence  Mentally or physically impaired and not reasonable to overcome impairment  Unlawful to give evidence  If provision in EA prevents that maker giving evidence  All reasonable steps have been taken but cannot find or secure attendance  All reasonable steps taken but cannot compel to give evidence.

GUARANTEES THE RELIABILITY of the evidence o S65(2) of EA – Guarantees includes  S65(2)(a) – made under a duty to make the representation (or one of its kind)  S65(2)(b) – MADE SHORTLY after the fact was made + IN CIRCUMSTANCES that make it unlikely to be fabrication  S65(2)(c) – MADE IN CIRCUMSTANCES making it highly probable that representation is reliable.  S65(2)(d) – Made against the interests of the representor + IN CIRCUMSTANCES that make it likely reliable 

Made shortly - some have argued a lapse of 5 days took the representation out of the realm of reliability because it was no longer made spontaneously or under proximal pressure of events – Harris v R. some have argued that a lapse of 2 WEEKS based on whether or not the event was still fresh in the mind of the person recounting the narrative – R v Kuzmanociv

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In Circumstances - refers to the circumstances surrounding the making of the representation as opposed to the accuracy of the representation – R v Ambrosoli o EXAMPLE: a victim of an assault makes a death confession to an ambulance officer ie “he did it!” will make the circumstances that the representation was not fabricated if that ambulance officer was called to give evidence. o NOTE!: the fact a representation is part of a police statement does not alone make it likely to be reliable – R v Amrbosoli

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Section 66 EA: FIRST HAND HEARSAY IF MAKER IS AVAILABLE  Hearsay rule does not apply to a representation given by  The maker of the representation  A person who perceived the representation being made by the maker (first hand hearsay) IF when the representation was made THE ASSERTED FACT WAS FRESH IN THE MEMORY of the maker of the representation 

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Section 66(2A) of Ea – Fresh in the memory  in determining if the representation was fresh in the memory of the maker the court takes into account: 1. NATURE OF THE EVENT CONCERNED + 2. THE AGE AND HEALTH OF PERSON + 3. THE PERIOD OF THE TIME BETWEEN THE OCCURANCE OF THE ASSERTED FACT  AND  THE MAKING OF THE REPRESENTATION

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Section 66(A) EA: CONTEMPORANEOUS STATEMENTS ABOUT SOMEONE HEALTH  Where a person has made a contemporaneous representation about their health, feelings, sensation, intention, knowledge of state of mind – hearsay rule does not apply  EXAMPLE: X punched Y in the eye and ran. Z who didn’t see the assaults comes across X X says to Z that Y had punched him and that his eye hurts. Z is relying upon X representation because he cannot perceive the pain himself.

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Section 69 EA: BUSINESS RECORDS  A document is admissible if the document contains a previous representation made in the course of or for the purpose of a business  Document MUST  Form part of the records kept in the course of or for the purpose of business  Representation made by a person who has personal knowledge of an asserted fact  Document was not prepared or obtained for in contemplation of legal proceedings or in connection to an investigation. EXAMPLE: shopping receipt, email created by author as part of their role in the organisation or business or drafting plans (such as those by an architect) NOTE: can be excluded under other rules such as opinion evidence.

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Section 70 EA: CONTENTS OF TAGS, LABELS AND WRITING  Tags and labels or other writing on an object including a document attached or placed in the course of business convey a previous representation but it excepted

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Section 71 EA: ELECTRONIC COMMUNICATIONS  Representation in documents recording an electronic communication detailing THE IDENTITY OF THE SENDER, IDENTITY OF THE RECIPIENT and/or DATE AND TIME OF THE MESSAGE are allowed.  NOTE!: Cannot use the representation of content in the document.

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Section 72 EA: ATSI LAWS AND CUSTOMS  Hearsay rule does not apply to evidence of a representation about the existence or non-existence or the content of the tradition laws and customs of an ATSI group.  EA Dictionary: This includes  traditions, customary laws, customs, observance, practices, knowledge, Belief of the group

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CRIMINAL PROCEDURE ACT 1986 (NSW): Evidence of Domestic Violence  Victim of domestic violence may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court  S289D of the CPA: a recorded statement must be made with the  Informed consent of the complainant  As soon as practicable after the offence

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S289F of the CPA: A recorded statement must contain the following statements by the complainant.   

1. Statement of the complainant age 2. A statement as to the truth of the representation 3. Other matter required by the rules

Section 81 EA: ADMISSION  The Hearsay rule does not apply to a previous representation that is admission to an offence

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EA DICTIONARY: ADMISSION - previous representation (express, implied or by conduct) that is o Made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and o Goes against the person’s interest in the outcome of the proceeding o

ADMISSIONS WILL NOT GET IN IF THE FOLLOWING APPLIES (EXCEPTION TO THE EXCEPTION RULE)  

Section 82 of EA: If the admission is second hand hearsay EXAMPLE: lee said I fired two shots – Calin heard lee say this– Calin can give this evidence because it is first hand – if Calin tells, police this statement. Can police say Calin said, lee said, I fired two shots? No because it is second hand hearsay.

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Section 83 of EA: admissions only count against the person who made the admission not against third parties. EXAMPLE: “I drove the getaway car but Rory did the robbery”. Admitting that you drove the getaway car can be used against you but not against Rory”.

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Section 84 of EA: admissions is not admissible if it was obtained through a course of violence, oppression, inhuman conduct towards person who made admission or towards another person.

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Section 85 of EA: When an admission is made in the presence of an investigating official –it will not be admissible if it was made in circumstances that made that admission unlikely true. o Section 85(3) of EA: Court takes into account the  Age  Personality  Physical/mental disability  Nature of the question EXAMPLE: When an accused feels scared or intimidated and a police officer’s tells him that if he confesses everything will be ok.

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Section 86 of EA: exclusion of records and oral questioning – police cannot right something down and claim that you’ve said it UNLESS YOU HAVE SIGNED AND DATED IT! 

Section 89 of EA: In a CRIMINAL proceeding (ie investigation), in the course of OFFICIAL QUESTIONING, if a party FAILS/ REFUSES to answer questions or respond to representations, an UNFAVOURABLE INFERENCE must NOT be drawn from this failure/refusal. o

Section 89A of EA: HOWEVER if the accused is charged with a serious indictable offence – unfavourable inference may be drawn upon if the accused fails to answer questions  BUT THE INVESTIGATING POLICE MUST GIVE A SPECIAL CAUTION INFRONT OF THE DEFENDANT LAWYER AND IF THE DEFENDANT DOES NOT ANSWER A QUESTION AND THEN IT IS LATER MENTION IN COURT IT CAN BE HELD AGAINST THEM. 

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Special Caution: “the person does not have to say or do anything, but it may harm the person's defence if the person does not mention when questioned something the person later relies on in court, and anything the person does say or do may be used in evidence”.

VERY IMPORTANT NOTE!: Section 90 of EA: Court may refuse to admit evidence of an admission if the evidence would be unfair to a defendant to use the evidence! EXAMPLE: : Em was convicted of murder and a firearm offence as a result of a home invasion. The confessions were recorded by a police officer in a public park (undercover) and had not been cautioned. He even said things this “isn’t like the movies where you have a microphone.” Lying, the police officer said otherwise. The defence focused on section 90 of the evidence act to exclude admissions made in those circumstances. COURT HELD: there is a difference between reliability of a confession, the proprietary of obtaining the confession and fairness of admitting the confession into evidence. The High Court held that section 90 only turns on “fairness” and NOT impropriety and that what is unfair will turn on the circumstances. Covert recording is not implicitly unfair. (the police had a legal warrant + they gave him an option to leave + involved serious matter as someone was killed in home invasion). – Em v The Queen

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PRIVILEGES  Section 128 of EA: privilege protects a witness from being compelled to testify or produce documents where to do so would subject that person to a criminal conviction  Only applies if a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence

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CAUTIONING Section 139 of EA: Police must caution arrested persons/suspects that they ‘do not have to say or do anything but that anything they say or do may be used in evidence’ BEFORE TRYING TO OBTAIN AN ADMISSION  Failure to do so will result in evidence deemed taken to have been obtained improperly for the purposes of s138 of EA ELECTRONIC RECORDING OF ADMISSION: Section 281 Criminal Procedure Act: If accused makes admission to indictable offence – police must have electronic recording. If not must have reasonable excuse as to why (hearsay rule and opinion rule do not apply with electronic recorded admissions)

OPINION EVIDENCE 

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Section 76(1) of EA – evidence that is of o Someone belief about something o Not based on facts that he or she perceived Such evidence is not admissible as a witness can only give evidence on what they perceived with their senses and not their conclusion about why something occurred.

Section 76(2) of EA – exception to use such evidence o Section 77 of EA: Used for purpose OTHER THAN ITS OPINION PURPOSE  EXAMPLE: X is accused of attacking Y. X claims self-defence. If witness Z says in their opinion Y had violent disposition to prove Y violent then it will be excluded. However, if use to prove that X was fearful of Y at the time then that evidence is not being used for its opinion purpose. o

Section 78 of EA: Lay Opinions 

Opinion evidence is admissible if  Based on what the person perceived with their senses 

Using an opinion is necessary to OBTAIN AN ADEQUATE UNDERSTANDING OF THE PERSON PERCETPION OF THE MATTER o Adequate understanding – This means where a witness finds it impossible to convey what they had perceived about an event without using up rolled-up summaries of lay opinion. – Lithgow City Council v Jackson (2011) o EXAMPLE: Age of person  “I saw a very old lady at the corner” vs “I saw a lady at the corner with greying hair, wrinkles, cracks around the lips, bags under the eyes etc”

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Section 78(A) of EA: ATSI traditional laws and customs  Members of an indigenous group can give opinion about traditional laws and customs  EA Dictionary: This includes  traditions, customary laws, customs, observance, practices, knowledge, Belief of the group  EXAMPLE: When an aboriginal witness explains facts, they may describe them in a cultural lingo that is understood within a tribal settling rather than in the traditional Anglo/white sense.  NOTE!: If a witness is not a member of a relevant group – they must satisfy the exception to give expert opinion evidence.

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Section 79 of EA: Expert Evidence  If a witness has SPECIALISED KNOWLEDGE based on the persons TRAINING, STUDY or EXPERIENCE they can give evidence of opinion that is WHOLLY OR SUBSTANTIALLY BASED ON THAT KNOWLEDGE 

“Specialised Knowledge” – consists of o Knowledge outside the knowledge or experience of ordinary person + o Recognised to be accepted as a reliable body of knowledge or experience – Velveski v R

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“Based on persons training, study or experience” – An expert CAN ONLY give an opinion based on that area of expertise – they cannot go beyond from what they know – Honeysett v R (2014) o EXAMPLE: Dr Basden did not have experience in quantification of silica dust levels experiences by stonemasons. He could only adduce that silica dust may have some effect on stone masons’ lungs.

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“wholly or substantially based on that knowledge” – The expert must give the opinion first THEN support it with further testimony explaining its basis (such as scientific or psychological reports) – Makita v Sprowles (2001)

ULTIMATE ISSUES AND COMMON KNOWLEDGE  

Section 80 of EA – evidence of an opinion is not inadmissible...