8 Evidence Flashcards
Ways of giving evidence?
Ordinary way
Alternative way
In any other way
Purpose and
6 objectives of Evidence Act 2006?
Purpose is to help secure the just determination of proceedings by:
Providing for facts to be established
Providing rules of evidence
Promoting fairness
Protecting rights of confidentiality and public interest
Avoiding unjustifiable expense and delay
Enhancing access to the law of evidence
What evidence is not admissible?
Fundamental principle that relevant evidence is admissible
Inadmissible under any act
Excluded under any act
Not relevant
*evidence is relevant if it has a tendency to prove or disprove anything of consequence
When must a judge exclude evidence?
S8 General Exclusion
Have an unfairly prejudicial effect on the proceeding
Needlessly prolong the proceeding
S8 Test?
Probative value VS Predjudicial effect
If probative value outweighs Predjudicial risk that evidence may be admitted
Woolmington Principle? (Presumption of innocence)
The burden of proof lies with the prosecution in relation to all elements of the offence
What is reasonable doubt?
A very high standard of proof met only if the jury is sure the defendant is guilty
Balance of probabilities?
Is more probable than not
Who must make oaths or affirmations?
Witnesses who are 12 years of age or older
Under 12 must be informed by the judge of the importance of telling the truth and must make a promise to tell the truth
(Q) What should be done if a witness refreshes their memory prior to trial?
Defence should be made aware and a copy of the statement used made available
4 steps of disclosure?
Initial disclosure
Full disclosure
Defence disclosure
3rd party disclosure
When must full disclosure be made?
As soon as reasonably practicable after a defendant has:
Pleaded not guilty
If a child or YP makes a first appearance
Reasons for giving evidence in an alternative way?
Age or maturity
Impairment of the witness
The trauma suffered
Fear of intimidation
Linguistic or cultural background
Nature of the proceeding
Nature of the evidence the witness will give
Relationship of the witness to any party
Absence from NZ
Eligibility of self defended
Do not need judicial permission to testify
An associated defendant is not compellable to give evidence unless?
Being tried separately from the defendant
or
The proceeding against them has been determined
Meaning of associated defendant?
A person against who a prosecution has been instituted for:
An offence that arose in relation to the same events for which the defendant is prosecuted
An offence that relates to the offence for which the defendant is prosecuted
S73 Evidence Act 2006
Defendant eligibility and compellability
A defendant facing a criminal trial is an eligible but not compellable witness for the prosecution or defence
A party may offer propensity evidence about any person subject to what restrictions?
About a defendant offered in accordance with s41, 42 or 43
About a complainants sexual experience offered in accordance with s44
S41(2) Propensity evidence about defendants
By offering evidence of his or her propensity to act in a good fashion the defendant opens the door to rebutting evidence
S43 Propensity only admissible where…?
it has a probative value in relation to an issue in the proceeding which outweighs the risk that it may have an unfairly prejudicial effect
What is hearsay?
A statement that was made by a person other than a witness and is offered in evidence to prove the truth of its contents
When is hearsay admissible?
Circumstances relating to the statement provide reasonable assurance that the statement is reliable; and either
The maker is unavailable
Undue expense or delay would be caused if the maker were required
Reasons for unavailability?
Dead
Outside NZ
Unfit to be a witness
Cannot be identified or found
Is not compellable
(Q) When may you withhold information in relation to disclosure for violent offending?
If disclosure is likely to endanger the safety of any person (s16(1)(b))
