From Criminal Law Notebook
|
|
Line 78: |
Line 78: |
| | style="width: 50%; vertical-align: top;"| | | | style="width: 50%; vertical-align: top;"| |
| ; Actus Reus and Circumstances | | ; Actus Reus and Circumstances |
| * {{Box}} Observation of incident or circumstances surrounding the incident | | * {{Box}} Observation of the incident or circumstances surrounding the incident |
| * {{Box}} [[Real Evidence|Real evidence]] of items collected by police | | * {{Box}} [[Real Evidence|Real evidence]] of items collected by police |
| ** {{Box}} Recognition of the real evidence as sourced from circumstances surrounding the incident (including [[Continuity]]) | | ** {{Box}} Recognition of the real evidence as sourced from circumstances surrounding the incident (including [[Continuity]]) |
Latest revision as of 08:14, 19 May 2022
All Evidence
- General Admission
- ☐ Identify one or more propositions that are sought to be proven by the evidence
- ☐ Does the evidence make the proposition more likely to be true
- ☐ Is the evidence material to an legal element of proof or issue to be determined in the case
- ☐ Is the proposition collateral, possibly excluded for collateral fact rule
- Discretionary Exclusion
|
- General Exclusionary Rules
|
Hearsay
- ☐ Is it a statement or an implied assertion
- ☐ Is it intended for the truth of what is being said or some other purpose
- Principled Exception
- ☐ is the person who made statement able to be meaningfully cross examined
- ☐ is the context of the statement suggesting that it is trustworthy (motivation for accuracy, sufficient testing of evidence)
|
Prior Statement of Accused
- ☐ is it excludable as a prior consistent statement
Disreputable Conduct
Documentary Evidence
- ☐ CEA Business Records
- ☐ CEA Financial Records
- ☐ Common law business records
- ☐ principled Admission
|
Images and Video
- See also: Electronic Documents and Records
- Authenticate Recording
- Either:
- ☐ Person who created the record can vouch for authenticity
- ☐ Person who observed the creation of the record on the electronic device
- ☐ Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
- ☐ Evidence of circumstancial reliability of the device
|
- Establish Creation Time
- Either:
- ☐ Person who created the record can vouch for time
- ☐ Person who observed the creation of the record on the electronic device
- ☐ Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
- ☐ Evidence of circumstancial reliability of the device
|
Relevance and Materiality
- Actus Reus and Circumstances
- ☐ Observation of the incident or circumstances surrounding the incident
- ☐ Real evidence of items collected by police
- ☐ Recognition of the real evidence as sourced from circumstances surrounding the incident (including Continuity)
- ☐ Propensity of the accused to engage in conduct similar to the offence (Similar Fact Evidence)
|
- Identity
- ☐ Recognition of accused as the culprit
- ☐ Circumstantial evidence consistent with accused as culprit
- ☐ Circumstantial evidence inconsistent with available third parties as culprit
- Mens Rea
- ☐ Observed utterances/conduct of accused to infer an awareness of circumstances OR intention
|
Credibility and Reliability
- Credibility and Reliability of a Witness
- ☐ Animus, Bias, Dependence, Partiality, or Motive to fabricate
- ☐ Tainting of evidence (determine how much claimed is based on second-hand info or mere personal belief)
- ☐ Quality of Observation
- ☐ Opportunity to Observe (frequency of personal presence, duration, distance, obstructions)
- ☐ Reasons (or abscence of reasons) to make observations at the time
- ☐ Focus on attention at the time (distractions, etc)
- ☐ Emotional state at time
- ☐ Level of Intoxiation
- ☐ Quality of recollection and recall
- ☐ Opportunity to record the memory accurately
- ☐ Time of recording of the memory
- ☐ Opportunity to refresh memory
- ☐ Timing of memory refresh memory
- ☐ Exposure to other versions of events through witnesses or the news
- ☐ Contradictions with Common Sense
- ☐ Accuracy of memory given level of importance at the time, given the lack of recording or corroborating records
- ☐ Failure to record only select events of importance
- ☐ Contradictions on Prior Statements
- ☐ Demeanour and manner of response
- ☐ Plausibility and Possibility
- ☐ Reasons and explanations for choice of actions (with special consideration for sexual offenes)
- ☐ Whether choice of actions match emotional state
- ☐ Signs of embellishment or minimization (eg. efforts to cast self in a good light)
- ☐ How the witness responds and changes evidence when confronted with new evidence
- ☐ Overly and inordinately complex answers
- ☐ Proven history of related dishonesty
- ☐ Corroboration or absence of corroboration with other witnesses or objective evidence
|
Application to Cross-Examine Witness
- See also: Adverse and Hostile Witnesses
- If witness cannot recall events
- If witness says something NOT in prior statement