Allison Baden-Clay - GENERAL DISCUSSION THREAD #36

[marlywings]

Ah, glad someone else remembers better than I do. Didn't one of our members ? Alioop? Get made an expert on WS in the law? Perhaps they can add some knowledge.

Yep alioop is a verified solicitor...

List of Professional Posters & Verified Locals / Insiders

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[Karo]

In order for evidence to be admissible, three separate but related issues must be considered.[4] Firstly, a witness must be competent; they may be lawfully called to give evidence. Instances of non-competence at common law are limited to certain types of children,[5] to ‘persons of defective intellect’, [6] and to the accused or the accused's spouse when called as a prosecution witness,[7] although family members are now deemed competent at law.[8] In modern Australian law, the topic of non-competence is heavily regulated by statute.

http://www.deakin.edu.au/deakin-speaking/node/264
too difficult for me to understand sorry but I think it means she has to give evidence.

 

[Rational]

In order for evidence to be admissible, three separate but related issues must be considered.[4] Firstly, a witness must be competent; they may be lawfully called to give evidence. Instances of non-competence at common law are limited to certain types of children,[5] to ‘persons of defective intellect’, [6] and to the accused or the accused's spouse when called as a prosecution witness,[7] although family members are now deemed competent at law.[8] In modern Australian law, the topic of non-competence is heavily regulated by statute.

http://www.deakin.edu.au/deakin-speaking/node/264
too difficult for me to understand sorry but I think it means she has to give evidence.

Karo
I amnot sure that applies in Qld? Any experts out there!??!

 

[alioop]

I am on the job and will report on the legal position later this evening when my household is a bit calmer.

 

[drsleuth]

4 Corners ( ABC 1 ) is running a story on domestic violence tonight.........8:30pm

http://www.abc.net.au/4corners/stories/2012/07/26/3554420.htm

 

[emirates1957]

Have just tuned in thank you.

 

[Rational]

I am on the job and will report on the legal position later this evening when my household is a bit calmer.

Thanks Alioop appreciated!!

 

[TootsieFootsie]

OT but new lead in local to me case of missing 15 year old girl Jessica Small.
Missing since 1997 from Bathurst NSW

http://www.smh.com.au/nsw/search-for-jessica-police-to-dig-near-bathurst-20120730-2385y.html

 

[J-Diggety]

Good thinking!! Alioop?? Every time I see your name I have to sing that song 'Alioop oop oop oop'. Don't ask me the name of the song or who sings it though (sorry Marly no link!!?)

Shoop - Salt N Pepa?



Was it Sept 3rd for the new date?

Apologies for not having a look for it

 

[summer_breeze]

I wish I was closer! I would play a round....

http://www.river949.com.au/index.ph...-into-delight&catid=53:around-river&Itemid=89

<snipped>

The event is on next Sunday August 5 at the Sandy Gallop Golf Course in Ipswich.

 

[summer_breeze]

Shoop - Salt N Pepa?



Was it Sept 3rd for the new date?

Apologies for not having a look for it

Yes J-D, Sept 3rd for next court date.

I believe it is August 20 that all evidence outside of the forensic accounting reports must be turned over to the defense team. Perhaps we will receive slivers of new information from this turnover.

 

[alioop]

A few legal questions have been asked and I will attempt to answer them as best I can as well as some other matters of interest. Some of these I have previously mentioned prior to my being verified as a solicitor. I also want to say that my speciality is not criminal law, but I studied it many years ago and know where to look to find answers so please keep that in mind.

1. Does an accused have to give evidence at their trial. No but if they do then they can be cross-examined on that evidence and cannot refuse to answer on the ground that to do so would tend to prove the commission by the person of the offence with which they are charged. Sec 15 Evidence Act QLD

2. If more than one person is charged , each person can give evidence on behalf of the defence (and therefore can be cross-examined) but cannot be compelled to do so. Sec 8 (1) Evidence Act QLD

3. Can a spouse of an accused be compelled to give evidence. Yes, the husband or wife of an accused person in a criminal proceeding is competent and compellable to give evidence either for the prosecution or for the defence and without the consent of the accused. Sec 8 (2) Evidence Act. Further the husband or wife is competent and compellable to disclose communications made between the husband and wife during the marriage. Sec 8 (3) Evidence Act

4. What involvement can the Crime and Misconduct Commission have in this case as questions have been raised about its coercive powers to question i.e. "Star Chamber" . One of the functions of the CMC is its major crime (which includes murder) investigation powers in response to requests from the QPS where investigations using ordinary methods are unlikely to gain enough evidence to secure convictions. A witness at a CMC hearing must answer questions and cannot remain silent or refuse to answer on the ground of privilege against self incrimination. However if that witness could have claimed this privilege under the general laws of evidence that apply other than to the CMC, then the answer is not admissible in evidence against the individual in any other proceeding There are a couple of exceptions, one of them being if the later proceeding is about false answers to the CMC. For eg they could be charged with perjury.

5. I think it is unlikely that the CMC would be requested by the QPS to get involved in this matter as I think that the QPS are more than capable of dealing with anyone else who may be criminally involved. That is just my gut feeling, I have no inside knowledge and I could be wrong. We will probably never know.

There is a lot to absorb here so if anyone has any specific questions about how it all relates to the BC case I will do my best to answer them.

 

[J-Diggety]

Yes J-D, Sept 3rd for next court date.

I believe it is August 20 that all evidence outside of the forensic accounting reports must be turned over to the defense team. Perhaps we will receive slivers of new information from this turnover.

Thank you Summer, much appreciated

5 weeks today then!

 

[whitechapel]

A few legal questions have been asked

<respectfully snipped>

Thanks Alioop.

I am interested in whether a witness (not charged) can refuse to answer questions that may incriminate themselves.

For example...
If GBC goes to trial and NBC is called as a witness, could NBC refuse to answer certain questions that may incriminate him?
IE "were you with GBC between the hours of 8pm and 6am on the night in question"

MOO/IMO etc

 

[alioop]

Sorry whitechapel, just bad numbering! Fixed it now.

In your example the answer is definitely yes. NBC could refuse to answer any questions that may incriminate him such as the question you suggested. Though the better question would be "Were you with GBC at any time during the hours of 8 pm to 6 am on the night in question"

In determining if NBC had to answer that question, the judge could send the jury out whilst there is legal discussion about whether the answer was likely to incriminate him. Then the jury would come back and the judge would tell NBC if he had to answer the question or not.

<respectfully snipped>

Thanks Alioop. BTW, was there a point 4. ?

I am interested in whether a witness (not charged) can refuse to answer questions that may incriminate themselves.

For example...
If GBC goes to trial and NBC is called as a witness, could NBC refuse to answer certain questions that may incriminate him?
IE "were you with GBC between the hours of 8pm and 6am on the night in question"

MOO/IMO etc

 

[itsthevibe]

Thankyou very much summer, thanks also to all WS mods & also our Aussie members. I hope to give it my best shot....looking forward to working with all of you.

I'm a little bit embarrassed now but I'll be ok...lol..

Absolutely thrilled with this news! Best choice ever - these Mods are not stupid, they see all! Hope you enjoy your history-making role - Go marlywings!! xxoo

 

[itsthevibe]

Sorry whitechapel, just bad numbering! Fixed it now.

In your example the answer is definitely yes. NBC could refuse to answer any questions that may incriminate him such as the question you suggested. Though the better question would be "Were you with GBC at any time during the hours of 8 pm to 6 am on the night in question"

In determining if NBC had to answer that question, the judge could send the jury out whilst there is legal discussion about whether the answer was likely to incriminate him. Then the jury would come back and the judge would tell NBC if he had to answer the question or not.

Interesting. so if the prosecution were smart they would make sure they phrased their questions very carefully? So that it might have at least some chance of the judge deciding it was not definitely going to be incriminating?

 

[alioop]

Barristers specialise in the art of questioning witnesses, particularly in cross examination. Questions and the order in which they are asked are well planned and there is a saying that as a lawyer you don't ask a question that you don't know the answer to. That isn't always true but it is risky if you are trying to get to a particular point with a witness. Re self incrimination you would have to question the witness very carefully to try to get as much information out of them before they can refuse to answer by claiming privilege.

Interesting. so if the prosecution were smart they would make sure they phrased their questions very carefully? So that it might have at least some chance of the judge deciding it was not definitely going to be incriminating?

 

[pulpfiction]

"and did you, at any point, in the 3 days prior and post the deceased going missing, see the accused being attacked by these, um er, caterpillars?". Hehe.

 

[whitechapel]

OT - Batman shooting in Colorado
.
Mr Holmes faces two counts of first degree murder for each of the 12 people killed - one each for their deliberate killing and one more for killing through "depraved indifference" to the lives of his victims.
http://www.heraldsun.com.au/news/world/batman-shooting-suspect-to-face-first-degree-murder-attempted-murder-charges/story-fnd134gw-1226438964619

I can't see the point of two murder charges for each victim.