Evidence Law Prosecution Notes PDF

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Notes for turn as prosecution...

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STAY CALM. TAKE A BREATH. DO NOT ASK LEADING QUESTIONS. BE KIND. PRETEND NOT TO KNOW HER ANSWERS. Divya for the Prosecution Could you please state your name and address for the court? If you wouldn’t mind, could you state your age for the court? Do you recall where you were on the 17 th of January 2017? (Which Commonwealth Bank was this? Do you have the address?) What were you doing at the bank? How were you feeling at the bank? (by the time you were serviced?) What happened at the bank? What did you do after you withdrew the money? (Where was it placed?) Could you describe the bag? Where did you go after that? What happened when you proceeded to exit the bank? Did the man who pushed you and grab your bag say anything to you? Could you describe the appearance of this man who pushed you? Do you remember his face well? Ms. Davidson, do you see the gentleman who pushed you and grabbed your bag in the courtroom today? Where is he? You’re referring to the accused in the dock? Have you received your items back?

[ IF THE WITNESS DOES NOT RECALL THE APPROPRIATE EVIDENCE OR FOR TENDERING DOC] = I’d like you to please have a look at this document. Do you recognize this document? What is the document? What date did you make the statement? Did you sign the statement? Is this document the same today as when you signed it on the 17 th of January 2017? Your Honour, I’d like to have this document tendered.

[ IF OBJECTION FOR OPINION] = S78 lays out an exception for opinion evidence. Ms. Davidson is expressing what she saw, heard and perceived about this event. S114 OBJECTION-

Defence is going to object using Alexander, saying that ‘in court identification is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock’ OR exclusion of the evidence per s114 of the Evidence Act. RESPONSE: The crown against David Taufua established that s114 is applicable to in-court identification. S114(2)– This visual identification evidence is admissible, in accordance with s114(2)(b) and(c) as it was not reasonable to have held an identification parade (they could not find 9 people, as is required for a parade and the defendant refused to take part), hence this is the only chance Ms Davidson has of identifying the defendant and is admissible. Additionally, Ms. Davidson has not been intentionally influenced to identify the defendant. Therefore, the presumption found in s114(4) is applied. Without 9 people who looked sufficiently similar to the defendant, it was difficult to conduct an identification parade that would not have been unfair to the defendant, and hence it was not reasonable to do so. Tahere = (identity of the driver who exited the vehicle after ramming back into a police vehicle). There was no evidence before the court that stated that the particular unfair circumstances that were present on the night of the offence were also present at a time reasonably proximate to the trial. This case differs to that as police went back to Swifty’s residence 2 weeks before the trial to attempt another line-up, however Swifty refused and slammed the door in their faces . This shows that there were unfair circumstances both on the day of the offence and at a time reasonable proximate to the trial. Holding an identification parade would have been unfair to the defendant, and hence s114(2) applies, as does the presumption in s114(4).

2nd attempt – no notification made to defence counsel of Swifty. (NO EVIDENCE OF THAT).

S137 OBJECTION Defence is going to object, using s137 saying that a court must refuse to admit evidence presented by prosecutor if its probative value is outweighed by the danger of unfair prejudice. (She had bad vision, her glasses had fallen, and she could not see the offender). Low probative value – a delay of a year and a half between beating and trial. Memory may have been contaminated. Ability to adequately address that with a warning. RESPONSE: In Dickman (The Queen against Dickman 2017), The High Court stated that (although the probative value may be low) this was an estimate that did not depend upon the assessment of the witness’s truthfulness or reliability. Your Honour, Ms. Davidson’s dentification of the defendant is not unfairly prejudicial towards the defendant. The reliability of this evidence, and of the witness can be addressed by a direction to the jury under s116. An example of such a direction was given in Tahere, minimizing the unfair prejudice against the defendant. Dickman = (German National being involved with Hells Angels Motorcycle Club) The High Court held that the admission at trial of the August identification was not erroneous, because the trial judge was correct to conclude that the danger of unfair prejudice was minimal and could be adequately addressed by directions to the jury. This case can be

differentiated from that as they were discussing a photoboard, whereas we are discussing an in-court identification.

[IF OBJECTION WHEN SHE DESCRIBES HIM] = At this point, Ms. Davidson has simply described the man who she saw at the bank. As per the definition of identification evidence, there needs to be an assertion to the effect that a defendant was or resembles a person who was present or near the place where the offence was committed. Ms. Davidson’s mere description of the man who she saw is not an assertion by her that the defendant was or resembles that man. At this point, her description is not considered identification evidence. IF ASKED, authority for this is The Crown against David Taufua. In that case, the Court found that there was nothing to link the evidence of what Mr Little saw at the railway station with the appellant, and that that link was necessary to make before the evidence would be described as identification evidence. This case also does say that s114 applies to in-court identification.

POSSIBLE OBJECTIONS FOR ME TO MAKE: (IF THEY QUESTION HER CREDIBILITY IN REGARD TO THE STRAP ON HER SHOULDER) I object on the grounds of ADMISSIBILITY: The defence counsel is attacking the credibility of the witness. The defence counsel is seeking this information to question the truthfulness of the witness and the accuracy of her testimony. The effect of ss101A and 102 is that evidence relevant only to matters relating to the truthfulness of the witness and the accuracy of their testimony is prima facie not admissible. Considering the situation, Ms. Davidson clearly did her best to keep her bag and the money safe. Ms. Davidson is 78 years old, she was tired and had to rest on her walking stick at the bank. With a strap on her shoulder and holding it closer to her body with one hand whilst the other is balancing weight on her walking stick, she clearly wasn’t very stable or capable of keeping a strong grip on her handbag. It would be easy for a young, fit man to overpower her and grab her handbag off her. (IF THEY ATTEMPT TO BRING ABOUT THE PHOTO IDENTIFICATION FROM POLICE) I object on the grounds of ADMISSIBILITY: In Alexander and The Queen (1981) The High Court disapproved of identification by photographs at the evidentiary stage. Photo Identification was ONLY seen as necessary and legitimate during the detection phase of an investigation, hence why the police conducted it.

1. Photoboard – clear case law in court identification has higher risk of - identification parade is the most reliable; photographs are the least reliable. 2. Does now know – did not know then. (Witness has a recollection. Has seen 12 different faces.) She is an elderly lady, pushed down by a young man. 3. Failure to recollect – if she was in...