009 - Evidence Flashcards
Definition: evidence?
Whole body material court take into account re decision
Oral/written/visual form
Definition: admissible evidence?
Legally able to be received by a court
Definition: relevance?
To prove/disprove anything of consequence in hearing
Definition: facts in issue?
-prosecution must prove to establish elements of offence
- def burden to prove in order to succeed with that defence
Definition: exclusionary rules?
Rules that exclude evidence
(Usually unreliable/prejudicial)
Definition: Weight of evidence
degree of probative force given to evidence and its value to facts in issue.
Dependant on range such as:
Extent of relevance and corroboration
Veracity of witness
Definition: offer evidence?
Must be elicited before offered, becomes so when witness accepts a proposition
Definition: incriminate?
Info reasonabley likely to lead to prosecution of person for crime
Definition: Proceeding?
Proceeding or application in court
Definition: statement?
Spoken/written/non verbal conduct of an assertion of any matter
Definition: witness?
Person gives evidence and able be X examined
Definition: hearsay statement?
Stmt made by a person other than a witness and offered in evidence to prove the truth of its contents
Definition: Veracity?
Disposition of person to refrain from lying
Definition: propensity?
Persons propensity to act in a certain way or have a certain state of mind
(Includes acts/omissions/circumstances previously involved)
Definition: direct evidence?
Something a witness has seen or heard/experienced.
(Saw def stab victim)
Definition: circumstantial evidence?
Don’t directly prove a fact in issue but allow inferences to be drawn to those facts in issue
(Def seen near crime)
Wilmington principal: presumption of innocence?
Burden of proof lies clearly with the prosecution in relation to all elements of the offence
Woolmington principle- practical obligations defence?
practical obligation point evidence suggests reasonable doubt about pros case
Define reasonable doubt?
Honest + reasonable uncertainty about guilt of defendant after careful/impartial consideration of all evidence
Define balance of probabilities?
More probable than not
What section sets out the objectives of the evidence act?
Section 6
What are the 6 objectives of section 6 of the EA 2006?
“F RAPE F”
- FACTS to be established by application of logical rules
- RECOGNISE NZBOR 1990
- AVOID unjustified expense/delay
- PROTECT confidentiality and public interests
- ENHANCE access to the law of evidence
- FAIRNESS to parties
What is the simple purpose of the act?
Help secure the just determination of proceedings
Exceptions to a fact in issue being proved?
- judicial notice (eg: time date place)
- formally admitted ( application of force, perhaps with a 48 defence)
Presumptions of law?
inferences expressly drawn by law from particular facts
(Eg under 10 can’t charge - presume they aren’t criminally culpable)
Presumptions of fact?
Are those that the mind naturally/logically draw from given facts.
“Always rebuttable”
In deciding whether evidence is admissible the courts have reference to 3 principles of evidence law?
Relevance
Reliability
Unfairness
Section 7?
Fundamental principal relevant evidence is admissible
Section 8?
“General exclusion rule”
Must exclude if probative value is outweighed by risk:
- evidence have prejudicial effect
- Needlessly prolong
Is a judge bound by a section 9 agreement?
No, as per R v HANNIGAN, the judge retains control of the process and can decline
When can evidence from a chambers hearing be used in other stages of a trial?
If the chamber evidence is inconsistent with subsequent evidence after
The exclusive rules of evidence deal with 6 types of evidence?
“VPHOII”
Veracity
Propensity
Hearsay
Opinion
ID
Improperly obtained evidence
Section 37 - veracity rules.
You can’t offer evidence of persons veracity unless……
it’s substantially helpful to assess their veracity
For section 37 the court considers 5 matters in considering allowing evidence for a persons veracity?
- prior lack of veracity when under obligation to be truthful
- previous convictions indicate lack of veracity
- prior inconsistent statement
- bias of person
- motive be untruthful
Section 41 - propensity evidence about defendants allows….?
“About D from D”
A defendant to offer propensity evidence about themselves
If a defendant offers propensity evidence about themselves what does this do tactically?
Opens the door for rebuttal evidence by the prosecution
Section 43- propensity evidence by prosecution about DEF only if….
Evidence has a probative value in relation to an issue in dispute which outweighs any risk of prejudicial effect
When assessing the probative value of propensity evidence the judge may consider? (4 main points)
“FTSN”
Frequency of acts
Connection in time
Extent of similarity
Number of ppl making allegations
For a prior act to be considered for propensity do they have to have been convicted of that offence?
No, can still be considered can also include subsequent acts
Section 18 - “general admissibility of hearsay.
(Think dead ppl or FV victim run away)
Hearsay statement admissible in any proceeding if:
- circumstances of statement provide reasonable assurance it’s reliable AND
- maker of stmt unavailable
- undue expense/delay if person required to be witness
Section 18 - put simply 2 criteria for admissibility of hearsay?
Reliability
Unavailability/undue expense or delay
Section 16 defines circumstances (reasonable assurance reliability) in relation to a hearsay statement and assessing the circumstances it was taken, these considerations are:
“V CAN C”
- veracity of person
- circumstances of making the stmt
- accuracy of observation
- nature of the statement
- contents of stmt
Section 16(2) defines unavailability as a witness as:
-dead
-outside nz and not reasonably practicable to be witness
-unfit due to 1M/physical
- can’t be found
- not compellable
Section 19 - admissibility hearsay stmts in business records
Admissible if:
Person who supplied info unavailable OR
Non useful purpose requiring person be witness
Section 22 - notice of hearsay in criminal proceedings. What is required?
- intention to call hearsay
- name of maker of stmt
- contents of stmt
- circumstances making reliable
- why unavailable/undue expense or delay
Define opinion?
A statement of opinion that tends to prove or disprove a fact
Section 24 - non expert opinion evidence.
Allows opinion if……?
necessary to communicate something personally perceived
Name some topics non expert opinion can include?
ID
Speed
Emotional state
Weather
Age
(Non exhaustive list)
Section 25 - admissibility of expert opinion evidence.
To be admissible the evidence must be and comply with 3 factors?
- that of an expert
- comprise expert evidence
- offer substantial help to fact finder understanding evidence or fact in hearing
Define an expert?
Person specialised knowledge/skill from training study or experience
Can expert opinion be based on a position yet to be proven in evidence?
Yes, an expert can state an opinion on fact during evidence in chief or give evidence on the basis that it will be proven
What matters must an expert state to qualify themselves as such?
- qualifications
- facts and assumptions on which opinion is expressed
- reasons for opinion stated explicitly
- literature to support opinion
- over riding duty to assist the court impartially
- expert is not an advocate for any party
Section 71 - eligibility and compellability.
- any person is eligible to give evidence
- an eligible person is compellable
Section 73 - compellability of defendants and associated defendants
73(1)- defendant not compellable in own hearing
73(2) - associated defendant not compellable unless:
-Associated defendant tried separately
-Proceeding against def is determined
What is an associated defendant?
Someone whose prosecution arises from the same events as the defendant or is related or connected to their offence
Privilege explained?
The right to refuse to disclose or prevent disclosure of what would otherwise be admissible
Examples of types of privilege?
Legal advisors
Solicitors trust accounts
Preparatory materials for proceedings
Settlement negotiations
Ministers of religion
Doctors
Self incrimination
What section is informer privilege covered by?
Section 64
Comms with a minister is priveleged if the comma was?
Made in confidence to them while in ministers capacity AND
For purpose of receiving religious or spiritual advice/benefit/comfort
What qualifies a person as an informer?
Person who supplied, gratuitously or for reward, info to enforcement agency about possible/actual offence and person has a reasonable expectation their ID won’t be disclosed
And is not called as a witness
Section 68- journalist privilege
If journalists promise not to disclose informants identity, that journalist or their employer is not compellable
Section 121- corroboration
Not necessary for prosecutions evidence to be corroborated
What is “cooberation”
(Mrs wood 🤣)
Independent evidence to confirm or support some fact
What two types of offences require corroboration as an exception to 121 of the act?
Perjury and related offences
Treason
What system of justice do we operate?
Adversarial justice system
What age must you be to take an oath or affirmation in the witness box?
12
What must Witnesses under 12 do before giving evidence in lieu of an oath?
Be informed by judge of importance of telling the truth AND
Promise to tell the truth
Outline the jury trial process from 1st day of trial?
Panel jury
Foreperson selected
Opening instructions by judge
Crown opening
Crown case
Defence opening
Defence case
Crown closing
Defence closing
Judge summary
Jury deliberations
Not guilty by a west coast jury (loooool)
Define a leading question?
Directly or indirectly Suggests a particular answer to a question
Section 89 - leading questions in EIC or re exam. 3 occasions can be done?
1- on introductory undisputed matters
2- consent of all other parties
3- judge allows
Section 90(5) - refreshing memory in court.
What does this allow?
For the purposes of refreshing memory while giving evidence witness may with leave of judge, consult doc made at time when memory fresh
When is a prior consistent statement of a witness admissible - section and 3 possibilities to admit?
Section 35(2)
1 - Statement responds to a challenge that will or have been made to witnesses veracity or accuracy (usually claim of invention)
2 - forms integral part of events before court
3 - consists of mere fact complaint made
To what extent under 35 will a previous consistent statement be admissible to?
As necessary to respond to a challenge to witnesses veracity/accuracy
To be declared hostile what must a witness do?
Displays active hostility towards the party that called them
Define a hostile witness?
Exhibits lack veracity when giving evidence unfavourable to party called them on matter should have knowledge
Gives inconsistent evidence to prior statement in manner exhibits intention to be unhelpful to party
Refuses to answer or withholds evidence
What are the 2 purposes of cross examination?
Elicit info supporting parties case
Challenge accuracy of EIC
Duty to put the case. What is the duty here under cross? (Primarily defence obligations)
To put contradictory material expected to a witness during cross so they have ottorpunity to comment. If not done little or no (fuck all) weight given to contradictory material
Section 85 unacceptable questions. What types of questions may be disallowed? (UMIN)
Unfair
Misleading
Improper
Needlessly repetitive
Some matter a judge may consider when assessing if question unacceptable?
S85
Age/maturity
Physical/intellectual
Cultural/religious background
Nature proceeding
Section 96 - cross examination on previous statements.
If not showing a witness a statement prior made under cross what must be identified to witness before questioning on it?
Adequately identify: Time, place circumstances of making stmt
S96 - if a witness does not admit making prior statement what must be done?
Show statement if in writing or disclose contents if oral
Opportunity to deny making or explain any inconsistency
What are the limits on re examination?
May re-examine for clarifying or qualifying anything raised in cross only
Occasions where evidence in rebuttal for prosecution may be allowed with leave of court?
(4 times)
- purely formal matter
- matter out of defences conduct (forgets cross questioning)
- not available/admissible before case closed
- in interests of justice
Section 122 - judicial direction on unreliable evidence.
If judge decides admissible evidence may be unreliable the judge may warn jury for caution on deciding 2 factors?
If accept evidence
Weight to give evidence
Section 123 - judicial directions about how evidence was given.
What does this require the judge to direct to the jury?
Direct that witnesses in law can give evidence in alt ways and no adverse inferences to be drawn
Practical matters for O/C to take care of prior to hearing?
WITNESSES!!!
- time date place of hearing
- given evidence before? Tour
- provide statement to refresh memory
- phone contact
- jury list check
- witness expenses
What is the role of the judge in a jury trial?
- Decide what evidence is admissible
- explain and enforce principles of law
- instruct jury on rules of law by which evidence is to be weighed once submitted
Wilmington principle exception?
When legal burden of proof placed on defence.
(Reverse onus, eg possession prima facie , or S66 possession under arms act)
What was suggested as the simple direction about beyond reasonable doubt in R v WANHALLA
Sure that the accused is guilty
Section 128?
Notice uncontroverted facts.
Judge/jury take notice facts so
known/capable of accurate determination from sources can’t reasonably question
Section 129?
Admission reliable published documents
Accredited histories, scientific works and maps may be admitted to prove facts of public nature
Define voir dire
Section 15
Hearing in chambers of evidence by witness to prove facts necessary for deciding whether some other evidence should be admitted
REI v R laid out the requirements for admission of propensity under 43 -
(prop about D from P).
The evidence must:?
Constitute propensity evidence
Have a probative value
Probative value outweighs risk EV have unfair prejudicial effect on DEF
What is the general rule in regard to hearsay?
Section 17
Hearsay is inadmissible except where provided for in legislation
