Law Notes Litigation 2 - Evidence Law Notes
These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.
At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...
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Lit 2 20-21 Identification evidence
A. Fundamentals on identification evidence 2
1. Is the evidence relevant? S 55 2
2. Is it a criminal proceeding? s 113 – then ss 114-116 apply 2
3. Is it identification evidence? EA Dictionary definition; Trudgett 2
B. Visual identification: s 114 3
1. State rule for visual identification evidence: s 114(1)-(2). 3
2. Req 1#: Has s 114(2)(a), (b) or (c) been satisfied? 3
Issue 1#: Has s 114(2)(a) been satisfied: was an IP held? 3
Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade. 3
Issue 3#: Was s 114(2)(b) satisfied: unreasonable to have held such a parade (taking into account s 114(3) factors), note s 114(4)-(6); Alexander; Ilioski 4
3. Req 2#: s 114(2) no intentional influence? 6
4. Req 3#: If admitted, need direction under s 116 that has s 116(a) and (b) 6
5. Issue 4#: Exclude/Limit under ss 135-137, with s 116 and 165 direction, SEE notes. 6
a) Limit use? S 136, 6
b) Exclude under s 135? 6
c) Exclude under 137? Eg Leroy and Graham 6
6. go to notes at bottom about ss 135-7, and s 116, 165 7
C. Picture identification: s 115 8
1. Is it picture identification: S 115(1), (10)? Then must satisfy s 115-6. 8
2. Exception 1# to all exclusions of picture ID.E: Where it is adduced to contradict or qualify picture adduced by D: s 115(8) 8
3. Exclusion 1#: picture IE inadmissible if pictures suggest that they are photos of persons in police custody: s 115(2) 8
4. Exclusion 2#: s 115(3) makes IE inadmissible if (a) picture ID occurred when D in police custody and b) examined pic made before taking into custody unless s 115(4)(a) appearance changed or (b) not reasonably practicable to take a photo: 8
5. Exclusion 3#: If the picture identification occurred when the D was in police custody, inadmissible under s 115(5), unless either s 115(5)(a), (b) or (c) is satisfied. 9
6. Req 4# from s 115(7): Judge direction on photo ID evidence 9
7. Req 5#: s 116 direction? see notes below 10
8. Req 6#: s 165 direction? (for all unreliable evidence) see notes in other section. 10
9. Issue; ss 135-7? Consider other notes. But for now s 137 is here. 10
D. Aural identification: Bulejcik 12
E. Judges Warnings for ID.E: s 116 (noting Dhanoa; Trudgett); s 165; and for picture ID 115(7); Kanaan; Domican (s 165(5) still relevant)) 12
1. For all ID evidence: s 116 (exceptions: Dhanhoa, Trudgett) 12
2. For all ID evidence: s 165(1)(b) if triggered by request 14
3. For Picture ID evidence must give s 115(7) direction 14
4. Kanaan direction for negative identification evidence 15
5. Domican warning (still relevant: s 165(5)) 16
F. Exclusions/Limitations: ss 135-137 go to other notes, but remember Festa ; and the different types of identifications listed here that can affect fairness 17
G. Appendix to Identification Evidence statute 21
Def | Definition: Under EA Dictionary: "identification evidence" means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion. |
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Reqs | Requirements:
What this includes identification by:
What this excludes:
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On ID objects |
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Buy the full version of these notes or essay plans and more in our Litigation 2 - Evidence Law Notes.
These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.
At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...
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