009 Flashcards
Def Circumstantial Evidence:
A fact that by inference can prove another fact in issue (This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime).
Def Veracity
A disposition to refrain from lying
Def Voir Dire:
Is – a hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. It is conducted without a jury being present.
Def Witness
This is a person who gives evidence and is able to be cross-examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence, and may also include a person who has previously given evidence in the proceeding. For a limited number of provisions in the Evidence Act 2006
Def Facts in issue
Are those which the prosecution must prove in order to establish the elements of the offence or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.
Def Standard of Proof required- defence :
On the balance of probabilities.
Def Admissible Evidence
Evidence is admissible if it is legally able to be received by a court
Def Hearsay Evidence
statement that (a) made by a person other than a witness; and (b) is offered in evidence at the proceeding to prove the truth of its contents”
Def Statement
A statement is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter
Def Leading question
A leading question is one the directly or indirectly suggests a particular answer to the question. (Examples) Identification / Assisting memory / Contradiction / Hostile witnesses.
Def Expert
“A person who has specialised knowledge or skill, based on training, study or experience”. MC
Def Incriminate
To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
Def Associated defendant
means a person against whom a prosecution has been instituted for—an offence that arose in relation to the “same events” as the defendant is being prosecuted; or
an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted
Def Enforcement Agency
This refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department.
Def Informer
The section defines an “informer” as someone who has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed (s64(2)). An informer may be a member of the police working undercover (s64(3)).
Def Relevance
Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (s7(3)of the Evidence Act 2006).
Def Exclusion Rules
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).
Def Exclusion rule deals with
• Veracity • Propensity • Hearsay • Opinion • Identification • Improperly obtained evidence
Def Weight of Evidence
The “weight” of evidence is its value in relation to the facts in issue. The value will depend on a wide range of factors, such as:
• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
- the extent to which it is supported or contradicted by other evidence produced
- the veracity of the witness.
The “weight” is the degree of probative force that can be accorded to the evidence.
Def Offer Evidence
Evidence must be elicited before it is “offered”: Merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition – s96(1) of the Evidence Act 2006. Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross-examination of a witness called by another party.
Def Proceeding
This means a proceeding conducted by a court, and any application to a court connected with a proceeding.
Def Preparatory materials for proceedings
The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.
Def Opinion
A statement of opinion that tends to prove or disprove a fact – Rule: A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.
Def Rational behind Opinion Rule
• Bare - Where a witness offers a Bare opinion it holds little probative weight • Confuse - There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence • Based - A witness’s evidence of opinion may be Based on other evidence which, if stated expressly, would be inadmissible
Def When Opinion Evidence permissible (generally)
Sec 24(1) A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived
Under this section, witnesses are routinely permitted to give evidence if it assi concerning: - apparent age - identity, - physical and emotional state of people, speed of vehicles (sound of vehicle revving), state of items (e.g clothing)
Def Unfairness
Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair.
e.g. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.
Def Provisional Admissibility
Where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.
Def Specific restrictions
Once evidence is admitted, it can generally be used for all purposes:
Hart v R “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or is not admissible at all.”
Def Beyond reasonable doubt
R v Wanhalla - A reasonable doubt is “an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence”
Def Business Records
- Made to comply with a duty or in the course a of business, and as a record or part of a record of that business
- Made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied.
Def Drug Dependency
State of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug.
Def Unacceptable Questions
85(1)
Improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand. Eg, age or maturity of witness, any impartments.
Def Evidence in Rebuttal
- Relates to a purely formal matter
- Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
- Was not available or admissible before the prosecution’s case was closed,
Once the judge has granted an application to treat a witness as hostile, that witness may be?
What are two types of questions that can be asked once a witness has been declared hostile? #
- Asking leading questions
- Asking questions designed to probe the accuracy of memory and perception
- Asking questions as to prior inconsistent statements, and
- Other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is “substantially helpful” in assessing the witness’s veracity).
What to address the judge as?
Your honour or Sir/Ma’am
List 4 of the functions of the judge’s role in a trial by jury?
- To decide all questions concerning the admissibility of evidence
- To determine whether there is any evidence that is fit to be submitted to the jury for its consideration
- To explain and enforce the general principles of law that are applicable to the point at issue
- To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
When can a judge allow evidence about jury deliberations?
When judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. Judge must weigh up:
• The public interest in protecting the confidentiality of jury deliberations generally, and
• The public interest in ensuring that justice is done in those proceedings.
A witness is eligible to give evidence if:
They are lawfully able to give evidence on behalf of both prosecution and defence.
Define hostile witnesses pursuant to section 4 of the Evidence Act 2006:
A witness is deemed to be hostile when? #
- Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
- Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
- Refuses to answer questions or deliberately withholds evidence.
Before giving evidence in court a witness may refresh their memory from?
Their original statement or transcript ; their deposition.
Which statement is correct regarding the eligibility and compellability of a witness in a preceding?
Any person who is eligible to give evidence is compellable.
When is a witness deemed to be unavailable as a witness according to Section 16(2) of the Evidence Act 2006? #
16(2) defines what is meant by ‘unavailable as a witness” a person is unavailable as a witness in a proceeding if the person –
a. Is dead, or
b. Is outside New Zealand and is not reasonably practicable for him or her to be a witness, or
c. Is unfit to be a witness because of age or physical or mental condition, or
d. Cannot with reasonable diligence be identified or found, or
e. Is not compellable to give evidence
Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?
Four conditions
The duty to cross-examine will therefore arise under the act when four conditions are present:
• The topic of cross-examination must deal with ‘significant matters’ in the proceeding
• The matters must be ‘relevant’ and ‘in issue’ in the proceeding
• The matters must ‘contradict the evidence of the witness’ and
• The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters’.
There are two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law. Name these two types of offences? #
- Perjury, False Oath & Statement (s108, 110 and 111 Crimes Act 1961)
- Treason (s73 Crimes Act 1961)
Previous Consistent Statements Rule
Three exceptions
Previous statement of a witness that is consistent with the witness’s evidence is admissible:
- to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or a claim of recent invention
- forms an integral part of the events before the court
- consists of the mere fact that a complaint has been made in a criminal case.
Recalling / re-examining witnesses:
In addition to evidence in rebuttal, a judge may recall a witness who has given evidence, where he or she considers that it is in the interests of justice
What is the general rule in relation to leading questions?
Is that the leading question may not be asked during examination-in-chief or re-examination.
When are leading questions allowed in evidence in chief?
(a) The question relates to introductory or undisputed matters; or
(b) The question is put with the consent of all other parties; or
(c) The Judge, in exercise of the Judge’s discretion, allows the question.
Why would the judge exercise his discretion to allow leading questions?
- To direct the witness’s attention to the subject of Identification
- In respect of questions about surrounding Circumstances in order to jog a witness’s memory about some fact or event in issue
- assist counsel in eliciting the evidence in chief of very young people
– Where a witness is hostile.
What is the general rule of evidence?
A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence.
Two main Exceptions:
• Judicial notice is taken
• the facts are formally admitted.
Exceptions to the General Rule of Evidence
The two main exceptions to the general rule are when no evidence needs to be given of facts because:
• Judicial notice is taken
• the facts are formally admitted.
The general purpose of the examination-in-chief is to?
Elicit testimony that supports the case of the party calling that witness
Which is not an example where judicial notice can be taken?
The date of birth of a complainant under 16.
An oath of affirmation may be taken by?
Any witness 12 years or over involved in a proceeding. Under 12 must be informed by the judge of the importance of telling the truth and not telling lies, and after being given that information, make a promise to tell the truth, before giving evidence.
Where an expert is called to give specialised evidence?
The expert must demonstrate to the court that he/she has the qualifications to be deemed an expert.
The conduct of expert witnesses:
• An expert must state his or her qualifications when giving evidence • The expert must not give opinion evidence outside his or her area of expertise • If an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated. Stated Explicitly - • The facts, matters and assumptions on which opinions are expressed must be stated explicitly • The reasons for opinions given must be stated explicitly
What 4 fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?
• Relevance • Reliability • Unfairness • Public Interest
What is the general rule in relation to ‘establishing facts?’
All facts in issue and facts relevant to the issue must be proved by evidence
2 Purposes of ‘Cross Examination’
- To elicit information supporting the case of the party conducting the cross-examination
− To challenge the accuracy of the testimony given in evidence-in-chief, for example, by casting doubt on the witness’s veracity, or by eliciting contradictory testimony.
It is not necessary in court to prove “uncontroverted facts.” These are admitted as?
Judicial notice
Legislation of “Uncontroverted Facts”
(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.
(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.
Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must?
a. Be that of an “expert”
b. Comprise “expert evidence”
c. Offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding
d. All of the above
It is not necessary in court to prove facts such as ‘the season of summer in New Zealand is over the period of December to February”, these facts are admitted as?
Judicial notice
Defs balance of probablilites
Is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case.
MILLER v the minister of pensions -Need to only prove that it is more probable than not, then the burden will be discharged;
if the probabilities are equal, the burden is not discharged.
S8 Test- General exclusion
Involves balancing the probative value value against the risk it will:
- have an unfairly prejudicial effect of the proceedings
- needlessly prolong the proceedings
37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is “substantially” helpful he/she should take a number of matters into account. Name 4 of these matters?
- Lack of veracity on the part of the person when under a legal obligation to tell the truth
- That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
- Any previous inconsistence statements made by the person
- Bias on the part of the person
- A motive on the part of the person to be untruthful
38(2) In order to be able to offer evidence of a defendant’s veracity the prosecution must meet the following criteria:
• the prosecution must show that veracity is relevant
• the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a
prosecution witness by reference to matters other than the facts in issue
• the proposed evidence must meet the substantial helpfulness test.
• The prosecution must get permission from the judge to offer the evidence.
38(3) In deciding to give permission for prosecution to question the defendant about his or her veracity, the judge may take into account
determining whether to give permission under sub 38(2)(b), Judge may take into account any of the following matters:
- the extent to which the defendant’s veracity, or the veracity of a prosecution witness, has been put in issue in the defendant’s evidence
- the time that has elapsed since any conviction about which the prosecution seeks to give evidence
- whether any evidence given by the defendant about veracity was elicited by the prosecution.
The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
According to section 16(1) of the Evidence Act 2006, circumstances in relation to a statement by a person who is not a witness, include…
(a) The nature of the statement, and
(b) The contents of the statement, and
(c) -The circumstances that relate to the making of the statement, and
(d) Any circumstances that relate to the veracity of the person, and
(e) Any circumstances that relate to the accuracy of the observation of the person
In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?
The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, because?
- Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
- The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question
- There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people
- The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested.
A hearsay statement contained in a business record is admissible if?
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be
expected to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
In relation to non-expert opinion, in order to be admissible under s24, the statement of opinion must fulfil to basic criteria. Name them:
In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
- Opinion must be the only way in which to effectively communicate the information to the finder of fact
- The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination.
What are the three reasons why leading questions are not generally permitted?
- There is a natural tendency for people to agree with suggestions put to them by saying “yes” even if those suggestions do not precisely accord with their own view of what happened.
- Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony
- There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.
Limited use of Evidence –3 sections
- s27, which controls the use of pre-trial statements of defendants and co-defendants
- s31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
- s32, which forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.
Burden of Proof:
• Whoever asserts something must prove it • In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt. • In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.
What did the case Woolmington v DPP establish in relation to the presumption of innocence? THE WOOLMINGTON PRICIPLE
The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington principle”. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence. If the prosecution proves facts: If the prosecution proves facts from which it can be concluded that the defendant committed the act with the requisite mental element, then the defendant has to produce some story or evidence if he or she wants to suggest the conclusion is wrong.
Exceptions to the Woolmington Principle:
There are exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant.
- Defence of Insanity (s23(1) of the Crimes Act 1961)
- Specific statutory exceptions exist (“offensive weapon … in circumstances that prima facie show an intention to use it to commit an offence
involving bodily injury …” and then provides a defence where the defendant can prove the absence of any such intent.) - Public welfare regulatory, or ‘strict liability’ offences (prove actus reus only)
Discharging burden of proof - Level of proof for prosecution/defence
In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. Any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
Section 40, Define Propensity Evidence:
and does not include
Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved. Does NOT Include
• evidence of an act or omission that is one of the elements of the offence for which the person is being tried
• evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37).
Requirements for admission of propensity evidence
- Fit the definition of propensity S40
- Comply with S43(1) - if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.
The veracity and propensity rule do not apply to bail or sentencing hearings except when:
• The evidence relates directly or indirectly to the sexual experience of the complainant with any person other that the defendant
• The evidence relates directly or indirectly to his or her reputation in sexual matters.
The court has a discretion to include propensity evidence against a defendant if?
The probative value of the evidence outweighs its prejudicial effect.
When can defence / prosecution offer propensity evidence?
(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
When assessing the probative value of propensity evidence, the Judge may consider?
- The frequency they have occurred
- The connection in time between them and those which constitute the offence
- The extent of the similarity between them and those which constitute the offence
- The number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence
- whether the allegations may be a result of collusion of suggestability
- The extent to which them and those which constitute the offence are unusual
When would a communication with a legal adviser be ‘privileged’?
A communication with a legal adviser would be privileged when:
(a) The communication must be intended to be confidential.
(b) The communication must be made for the purposes of obtaining or giving legal services.
A - Describe what privilege is in relation to the giving of evidence?
B – Name two privileges outlined in the Evidence Act 2006?
(a) A privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.
(b) Any two of the following: • Privilege for communications with legal advisors – s54 • Privilege and solicitors trust accounts – s55 • Privilege for preparatory materials for proceedings – s56 • Privilege for settlement negotiations or mediation – s57 • Privilege for communications with ministers of religion s58 • Privilege for information obtained by medical practitioners and clinical psychologists – s59 • Privilege against self-incrimination – s60
In relation to privilege of medical practitioners, “protected communication” refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient:
Who is suffering for a drug dependency / Who has any other condition or behaviour that manifests itself in criminal conduct
Communications with Ministers of religion
made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
Informer Privilege:
When must it be disallowed
An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
Must or may be disallowed when
- Must be disallowed by the judge where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence.
- May be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence
Journalists Sources Privilege:
Where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered.
Overriding discretion as to confidential information
Allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.
Define presumption of Law:
Presumptions of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable (Example: A child under 10 years is unable to be convicted)
Define Presumptions of fact:
Presumptions of fact are those that the mind naturally and logically draw from the facts given (Example: One presumes that a person has guilty knowledge if they have possession of recently stolen goods.
A presumption of fact is: Always rebuttable
Presumption of innocence
R v Wanhalla “The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
Exceptions to S71 – Eligibility and compellability for Judges, jurors and counsel:
Under s72, a person who is acting as a judge in a proceeding is not eligible to give evidence in that proceeding. Unless the judge gives permission, a person acting as a juror or counsel in a proceeding is ineligible to give evidence in that proceeding. If the juror is given permission to give evidence, he or she would be discharged from the jury and the trial would proceed with the eleven remaining jurors. A defendant who acts as his or her own counsel will not need judicial permission to testify.
Exceptions to S71 – Defendant not compellable and when an associated defendant is compellable:
A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—
(a) the associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined.
Eligibility and compellability in a CIVIL or criminal proceeding? (Who can be compelled – EVERYONE)
(1) In a civil or criminal proceeding, -
(a) any person is eligible to give evidence; and (b) a person who is eligible to give evidence is compellable to give that evidence.
Define Judicial Warnings and directions
There are a number of circumstances in which a judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight. (Lies, unreliable, delayed, children’s evidence, identification)
122 Warning about unreliable evidence
Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable,
may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence: (b) the weight to be given to the evidence.
Judge must consider whether to give a warning whenever the following evidence is given:
(a) Hearsay - Hearsay evidence:
(b) Defendant Statement - Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) Witness Motive - Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) Cell Confession - Evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) Historic Conduct - Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously
123 Directions about alternative ways of giving evidence
Section 123 requires the judge in criminal proceedings to direct the jury that the law makes special provision for the giving of evidence in certain circumstances, and that no adverse inferences should be drawn against the defendant
where a witness has offered evidence in an alternative way (s105)
where a defendant has not been allowed to personally cross-examine a witness
(s95)
or where a witness offers evidence in accordance with a witness anonymity order (s112).
124 Warnings about telling lies
Section 124 provides for instruction to the jury about evidence suggesting that the defendant lied before or during a criminal proceeding. It is a matter for the jury to conclude whether the defendant actually did lie.
No warning needs to be given unless the judge is of the opinion that the jury
may place undue weight on the evidence of a defendant’s lie,
if the defendant requests that the warning is given, in which case a warning must be
given.
When a warning must be given, it should include direction that:
• The jury needs to be satisfied that the defendant did lie before they use the evidence, • People lie for various reasons, and
• The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.
125 Directions about children evidence
Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults. Thus it prohibits:
- the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
- any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.
127 Delayed complaints or failure to complain in relation to sexual cases
in a sexual case tried before a jury, if evidence is given or comments made about delayed making or failed to make a complaint in respect of the offence.
the Judge may tell the jury that there can be good reasons for the victim of an offence of that kind to delay making or fail to make a complaint in respect of the offence.
What are the six objectives of the Evidence Act 2006 as set out in s6?
The purpose of the Act is to help secure the just determination of proceedings by:
− providing for facts to be established by the application of logical rules
− providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990
− promoting fairness to parties and witnesses
− protecting rights of confidentiality and other important public interests
− avoiding unjustifiable expense and delay, and
− enhancing access to the law of evidence.
Witnesses giving evidence
The officer in charge of the case should:
• Advise witnesses of the time, date, and place of the trial, and the exhibits to be presented at the trial.
• Check whether they have given evidence before. If not, advise them of the procedure. For example, where they are to stand, that they should speak slowly and clearly, tell the truth, and say, “I do not know“ rather than guess an answer.
• Advise witnesses that if they have made a written statement, they may read it to refresh their memory before giving evidence. However, they cannot read other documents, such as the job sheets or briefs.
• Ensure witnesses remain within call if they are excluded from the courtroom.
• Check the jury list to make sure that none of the jurors are known to the witnesses.
• Warn the witnesses that they are not to mix with or speak to jurors.
• Advise the witnesses about witness expenses.
O/C Case General
- Ensure that you look, stand and speak correctly.
- Identify the defendant.
- Locate your witnesses and help them as required.
- Do not mix or gossip with jurors or members of the defence.
O/C Case giving evidence
Giving evidence
When you are giving evidence:
• Take care that you actually answer the question being asked.
• Say you do not know, rather than guess.
• Do not be flippant.
• Address the judge as “Your Honour“ or “Sir/Ma’am”.
• Address the prosecutor and defence as “Sir/Ma’am”.
• Advise the judge of any mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.
Referring to your notebook
If you need to refer to your notebook:
• Ask the court’s permission.
• Introduce the material properly – for example, by saying, “I interviewed the defendant and wrote the answers in my notebook at the time”.
• Remember that the defence and the jury are entitled to view your notes, so seal off other entries.
• Remember that you are only allowed to refresh your memory – you cannot read the whole entry unless you have permission to read the notes of the interview.
Refreshing memory in court (3)
- The leave of the judge must be obtained
- The document must be shown to every other party in the proceeding
- S90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”.
Introducing a notebook statement of admission to the court
When you have obtained a statement of admission which is to be read to the court, begin by giving evidence of any prior discussions or oral admissions. It is important to do this in case the statement is rejected because it is the only admissible evidence of an admission. Your evidence of the discussion should include only passing reference to irrelevant material.
Giving evidence and ways of giving it
“Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence .Of note in a proceeding, evidence may be given:
• In the ordinary way either orally in a courtroom or in an affidavit filed in court
• In an alternative way such as by video link, pre-trial, screen
• In any other way provided for by the Evidence Act 2006 or any other relevant enactment.
Def Corroboration MC
Not defined in the act- Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged
Example of defence having evidential burden
Self Defence and Insanity
Section 33
Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the
Judge may comment on the fact that the defendant did not give evidence at his or her trial.
where a judge wishes to do so he or she must emphasise that the burden of
proof still remains upon the Crown and must not leave the jury with the
impression that if the defendant were innocent he or she would have given
evidence.
Limits on reexamination
After cross-examination by opposing counsel, the party who called the
witness may re-examine that witness for the purposes of “clarifying or qualifying” any issue raised during cross-examination, but may not be
questioned on any other matter, except with the permission of the judge.
If additional evidence is allowed by the judge, then the other parties must be allowed to cross-examine on the additional evidence, and the judge may also
allow further re-examination on matters arising out of that cross-examination.
Before a person is served with a summons to appear in court, verification
must be made as to:
- whether they are allowed to give evidence
- whether they are required to give evidence
- whether they can refuse to give evidence, and
- what type of witness they will be.
Section 7
(1) — All relevant evidence is admissible in a proceeding except evidence that i
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act
(2) Evidence that is not relevant is not admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
Incriminating privilege will apply if a person is “required to provide specific
information”
• in the course of a proceeding
• by a person exercising a statutory power or duty, or
• by a police officer or other person holding a public office in the course of
an investigation into a criminal offence or possible criminal offence.
Section 62(1)
If in a court proceeding it appears to the Judge that a party or witness may have
grounds to claim a privilege against self incrimination in respect of specific
information required to be provided by that person, the Judge must satisfy himself or
herself that the person is aware of the privilege and its effect
Four categories of privilege
• Privilege against self-incrimination • Marital privilege • Professional confidences • Public policy • Police informants
evidential burden
Having an evidential burden means that a defence cannot be left to the jury or
the judge unless it has been made a live issue by the defence. It is not a
burden of proof, and once it is made a ‘live issue’ then the prosecution must
destroy the defence, because the burden of proofremains where that case puts
it – with the prosecution. The ultimate question for the jury is always, “has
the prosecution proved its case?”
When assessing unacceptable questions judge may have regard to
85(2)
(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological, or psychiatric impairment of the
witness; and
(c) the linguistic or cultural background or religious beliefs of the witness; and
(d) the nature of the proceeding; and
(e) in the case of a hypothetical question, whether the hypothesis has been or will
be proved by other evidence in the proceeding.
