Application of Procedural and Evidentiary Rules - Assignment Example

Application of Procedural and Evidentiary Rules SCENARIO: You are working as a police officer on the afternoon shift, when at 3:30 pm you are calledto ‘Skatebiz’, at the Southport Mall on the Gold Coast, Queensland, Australia. Your conversation with a shop assistant, Rod Carter, ascertains that he detained a 20-year-old male, Joe Densley walking out of the shop with a pair of 0.00 roller blades, secreted in his backpack. Answer the following questions with regard to the above scenario. Your answer to these questions should total approximately 1200 words in length. 1. Define each type of evidence listed below and give examples of how you would gain each one: Real evidence Real evidence is a “thing” or matter that is actually experienced or observed by the court. It is a class of evidence which appeals to the senses of the court and decision is reached on the basis of its direct observation (Queensland Law Reform Commission 1998). In the above scenario, the pair of roller blades that was shoplifted is the real evidence if offered in court. Admission An admission is an acknowledgment voluntarily given by a party to a criminal prosecution or a case which is inconsistent with his own position. It is a statement made by a party in or out of court which supports the claim of the other side. Being adverse to the interest of the maker, it is naturally reliable, thus a common law exception to the hearsay rule (R v Swaffield 1998 as cited in Queensland Law Reform Commission 2005). If in the above case, Joe Densley made a voluntary statement to the arriving police or to the shop assistant that he stole the pair of roller blades, that statement is deemed to be an admission. Identification Identification refers to an eyewitness account which identifies a defendant as the person who was connected with the commission of the offence. Applying to the above scenario, assuming there were other witnesses to shoplifting, they may be made to identify the suspect through identification parade, photo board, videotape, or computer generated images (Police Powers and Responsibilities Act 2000, s. 377A). Contemporaneous notes These are accurate notes or record which are made at the time of an incident or immediately thereafter. It may include diaries, notebooks, minutes, or file notes which were made contemporaneously by the maker (Carney 2009). For example, if Rod Carter, the shop assistant immediately reported the stealing incident to his manager through their record book, the entry made at the time of the event is a contemporaneous note which is assumed to be accurate since it was made while still fresh in his memories. Connor makes a statement to police about a sexual assault that happened at a local nightclub the previous night. Connor was not at the nightclub but heard his friends talking about it, and what they had seen. Connor made sure that the police knew exactly what was said and who was saying what. 2. What sort of evidence did Connor give? Is this evidence admissible in court? Connor gave hearsay evidence, a type of evidence related by one who does not have personal knowledge of the incident but relates only what he has heard from others. It is an out-of-court statement which is offered to prove the truth of the matter asserted. In this case, Connor cannot testify in court what he heard if the purpose of the testimony is to prove the truth of the statements he heard from his friends. Subject to several exceptions, an out-of-court statement offered in court for the purpose of proving the truth asserted in such statement is inadmissible. This is an exception to the admissibility of all relevant evidence. According to Riordan, the hearsay rule prohibits the admission of a written or oral statement as evidence of the truth of the statement, unless it was actually made in court by the witness himself (as cited in Queensland Law Reform Commission 2005). The rationale for its inadmissibility has been explained by Teper v The Queen when it held that “the truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost” (as cited in Queensland Law Reform Commission 2005). The inadmissible nature of hearsay testimonies stems from the fact that it is very unreliable. Unless there are guarantees of its truthfulness, the court should altogether rule it out. 3. What is the obligation of the prosecuting authority (in this case, the police) to act on this evidence? The prosecuting authority in this case should not give credence to the secondhand information given by Connor as it is inadmissible in court. However, it has the obligation also to determine the availability of the witnesses who personally witnessed the sexual assault, and if there is reasonable certainty of ‘unavailability’ of the maker, the hearsay statement of Connor may be used for ‘non-hearsay’ purpose like when it is presented to establish the state of mind of the maker or the fact that the statement was made. Hearsay evidence may be admitted for a ‘non-hearsay purpose’ if offered not as proof of the truth that it asserts (Evidence Act of 1977). In Lee v The Queen, “the assertion intended to be made by the witness was that the accused had made some statements (admissions) to him, not that the admission was true” (as cited in Queensland Law Reform Commission 2005). In addition to this, a doctor from the local hospital did not witness the offence relayed by Connor to the police, but she did examine the victim and made a full medical report. 4. What sort of admissible evidence can the doctor give? The doctor may give an expert opinion based on his medical examination of the victim. While generally “evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed,” a person may be permitted to offer evidence of his/her opinion on areas which need expertise or technical knowledge (Evidence Act of 1995). Experts may base their opinions on the facts he/she observed. Thus, the doctor in this case may base his/her opinion on his medical findings during the examination of the victim as reflected in the medical report. The doctor may not have witnessed the sexual assault, yet he/she can give an expert opinion on the matter. 5. What precautions must be taken to ensure the evidence is admissible? Aside from the general requirement of relevancy, in order to ensure that evidence will be admissible, it is important to first establish whether the expert opinion “forms part of a recognized body of learning,” and that it is “beyond the knowledge of human experience.” Hence, in this case, the doctor’s opinion meets the two requirements as it is based on scientific process and technical knowledge that a lay person may not be able to understand. The UCPR Part 5 and the Federal Court guidelines specify the requirements of the expert’s report: “detail of the expert’s qualifications, the facts relied on, the expert’s assumptions, the literature relied on, and the expert’s opinion and reasons for that opinion” (Freeburn 2007). It is particularly important to establish with certainty the doctor’s qualifications in the area of interest in order for the court to allow the admission of the evidence (Factsheet 2009). Therefore, it must be proved that the doctor has the appropriate expertise which is confined to the relevant area of “specialised knowledge.” In the words of Heydon, “it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; the experts evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience,’ and on which the opinion is ‘wholly or substantially based,’ applies to the facts assumed or observed so as to produce the opinion propounded” (as cited in Fynes-Clinton 2008). The expert must be able to furnish criteria which enable evaluation of his conclusion’s validity. Connor’s girlfriend Carla found the victim of the sexual assault in the nightclub toilets. The victim was crying and her clothes were ripped. 6. What evidence can Carla give and why? Carla can give a testimony of what she has seen as a secondary evidence of the sexual assault. This is not primary evidence since Carla did not personally witness the assault of the victim, but she can testify on the appearance of the victim to corroborate the primary evidence. Although corroboration is not required, Carla’s testimony may be helpful in confirming, supporting or strengthening other evidence because it makes such other evidence more probable (Judd 2005). Corroboration is evidence that is complementary to other evidence and is taken from a source other than the relevant witness implicating the accused. References Carney, W 2009, When to make notes contemporaneously, viewed 5 January 2010, Evidence Act of 1995 s. 76-79, viewed 12 January 2010, Evidence Act of 1977 s. 101, viewed 4 January 2010, Factsheet 2009, Evidence and proof in civil proceedings, viewed 5 January 2010, Freeburn, P 2007, ‘Single Experts’, The Journal of the bar Association of Queensland, issue 19, viewed 12 Jan. 2010, Fynes-Clinton, S 2008, ‘Expert evidence and the family pet,’ The Journal of the bar Association of Queensland, issue 25, viewed 4 January 2010, Judd, K 2005, Corroboration, viewed 12 Jan. 2010, Police Powers and Responsibilities Act 2000 s. 377A, viewed 5 January 2010, Queensland Law Reform Commission 1998, The receipt of evidence in Queensland courts: electronic records, viewed 5 January 2010, Queensland Law Reform Commission 2005, A review of the uniform evidence act, viewed 5 January 2010, Read More