8 - Evidence

Question 1

Relation to oaths and affirmations what are the rules for witnesses who are 12 years of age or older and the rules for witnesses under the age of 12?

Answer 1

Answer:
Witnesses 12 and over must take an oath or affirmation

Under 12 must be informed by the judge of the importance of telling the truth and not telling lies, and

Must after being given that information, make a promise to tell the truth, before giving evidence

With a judges permission a witness of any age may give evidence without giving oath, affirmation or making a promise.
If permission given he must tell the witness of importance of telling the truth and not telling lies

Question 2

When will propensity evidence about a defendant be admissible?

Answer 2

Where the evidence has a probative value that outweighs any unfairly prejudicial effect on the defendant.

Question 3

What is the the sec8 Criminal Disclosure Act 2008 definition of the meaning of “relevant” under

Answer 3

In this act relevant means information or an

exhibit, that tends to support or rebut, or has a material bearing on, the case against the defendant.

Question 4

What are three methods that a witness or complainant can give evidence?

Answer 4

Answer:
While in the court room but unable to see the defendant or some other specified person (screens)

From a place outside the courtroom, either in New Zealand or elsewhere.

By a video record made before the hearing of the proceeding

Question 5

Section 41 of the evidence act 2006 incorporates ability to offer evidence of a good propensity. What does this allow the defendant to do?

Answer 5

Answer:
Allows defendants to offer evidence about themselves perhaps for tactical reasons

• Defendant offers propensity evidence that he has a criminal history as a burglar and was on the property to steal rather than a rape.
• Defendant offers evidence of a neutral propensity e.g. evidence that the defendant does something regularly that may offer an alibi

Question 6

Under section 18 of the Evidence Act 2006 What is the general admissibility of hearsay?

Answer 6

Answer:
Hearsay statement is admissible in any proceeding if-
The circumstances relating to the statement provide reasonable reassurance that the statement as reliable and either –
- the maker of the statement is unavailable as a witness or

• the judge considers the undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 7

When can a person under 16(2) be unavailable as a witness?

What is the aim of s16(3) relating to a witness being unavailable to testify in court?

Answer 7

Answer:
A witness is unavailable if the person is —
- Dead, or
- outside New Zealand and it is not reasonably practicable for him/her to be a witness, or
- unfit to be a witness because of age or physical or mental condition, or
- Cannot with reasonable diligence be identified or found, or
- not compellable to give evidence

Answer:
Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person attending or giving evidence

Question 8

What is the Sec 8 general Exculsion Evidence Act test?

Answer 8

The sec 8 test involves balancing the probative value of evidence against the unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.

Evidence will be admitted if its probative value outweighs the risks.

Question 10

List some reasons for not following a formal procedure in regards to Identification of Suspects

Answer 10

• Refusal to participate
• Singular in appearance
• Change of appearance
• No anticipation that identity would be an issue
• Identification made shortly after the offence
• Chance meeting

Question 11

What is eligibility and compellability in terms of witnesses?

Answer 11

As a general rule, all persons are eligible to give evidence whether for the prosecution or defence. And all persons who are eligible are compellable to give evidence (they can be required to testify against their will).

Question 12

If a judge decides that evidence is relevant… what should happen

Answer 12

Then subject to any other legal rules, the party will be entitled to present the evidence. Relevance is a necessary but not a sufficient condition of admissibility under the act.

Question 13

Sec 73 - Compellability of co-defendants. Sec 73 provides that….

Answer 13

1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or 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 defendant is being tried separately or
b) The proceeding against the associated defendant has been determined

A proceeding has been determined if:

• The charge is withdrawn or dismissed
• The defendant was acquitted
• The defendant either pleaded guilty or was found guilty and had been sentenced or otherwise dealt with

Question 15

Who is the fact finder in a trial?

Answer 15

Judge or jury.

Question 16

What is the prosecutions burden of proof?

Answer 16

Beyond reasonable doubt.

Question 17

What is the standard of proof that must be reached for voice identification evidence

Answer 17

The burden of proof imposed on the prosecution under s 46 is proof of reliability on the balance of probabilities. “probably reliable”

Question 18

What is relevant evidence?

Answer 18

Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the proceeding.

Question 19

At any time after a person has been charged with an offense, if they request information about an identification witness, what must the prosecutor supply?

Answer 19

Answer:
- The name of the witness and (if permitted under section 17, the address) of each identification witness whether or not the prosecutor intends to call them;

• A statement of any description of the offender given by each witness to the prosecutor or police, and
• A copy of any identikit picture or a drawing

Question 20

What is direct evidence?

Answer 20

Evidence a witness has seen, heard or otherwise experienced (eye witness).

Question 22

What is admissible evidence?

Answer 22

Evidence is admissible if it is legally able to be received by the court.

Question 23

Under s13 of Criminal Disclosure Act 2008 full disclosure by the prosecution must be made as soon as reasonably practical after the defendant has what?

Answer 23

Answer:
- pleaded not guilty
– when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court

Question 24

What is evidence?

Answer 24

The whole body of material which a court may take into account in reaching their decision.

Evidence may be written, oral or visual.

Question 25

Under section 72 of the Evidence Act 2006 is a judge eligible to give evidence in that proceeding?

Is a person acting as a juror or counsel in a proceeding eligible to give evidence in that proceeding?

Answer 25

Answer:
No

Answer:
No, Unless the judge gives permission. If the juror has been given permission to give evidence he or she will be discharged and the trial will proceed with 11 remaining jurors

Question 26

What is a hearsay statement?

Answer 26

A statement made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of it’s contents.

Question 28

What Is the general rule regarding propensity evidence?

Answer 28

Answer:
Propensity evidence can be given about anyone BUT rules apply if about the Defendant - covered by sections 41 to 43
Ie the evidence about a defendant may only be offered in accordance with section 41, 42 or 43; and

41 - defendant can give evidence about himself eg to say I’m a burglar not a rapist

42 - defendant can give propensity evidence about a co defendant if relevant and judge approves

43 - prosecutor can offer propensity evidence about defendant if probative value exceeds risks
In sexual cases propensity evidence about a complaint and sexual experience may only be offered in accordance with section 44

Question 29

How long should initial disclosure occur after the

commencement of proceedings?

Answer 29

Answer:

Generally not later than 15 working days

Question 30

What are the two types of offending — in which the unsupported evidence of one witness is insufficient to support a conviction. Contrary to sec121 Evidence Act

Answer 30

perjury and related offences (ss108, 110 and 111 Crimes Act) and treason (s73 Crimes Act)

Question 32

What are the several privileges outlined in the Evidence Act 2006, regarding refusing to give evidence under claim of privilege

Answer 32

• privilege for communications with legal advisors – section 54
• privilege and solicitors’ trust accounts – section 55
• privilege for preparatory materials for proceedings – section 56
• privilege for settlement negotiations, mediation or plea discussions –
section 57
• privilege for communications with ministers of religion – section 58
• privilege for information obtained by medical practitioners and clinical
psychologists – section 59
• privilege against self-incrimination – section 60
• informer privilege – section 64

Question 33

What is voice identification evidence?

Answer 33

Evidence that a voice heard first-hand or through a mechanical or electronic transmission or recording, is the voice of the defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Question 34

What is a hostile witness?

Answer 34

A witness called by any party who:
- Refuses to answer questions
deliberately withholds evidence

• A witness who exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a topic they may reasonably be supposed to have knowledge or
• Gives inconsistent evidence against a previous statement or displays an intention to be unhelpful to the party who called the witness

Question 35

What is the age of a child complainant?

Answer 35

Under 18 years when the proceeding commences (when the charging document is filed).

Question 36

What would be deemed to be ‘unavailable as a witness’ or ‘undue expense and delay’?

Answer 36

If the witness is dead or outside NZ and it is not reasonably practicable for him or her to be a witness.

If the witness is unfit due to age or physical/mental condition.

If the witness cannot be found or

If the witness is not compellable to give evidence

Question 37

If a witness is declared hostile the judge, what does this allow for in regards to questioning?

Answer 37

Answer:
If the witness is declared hostile toward the party that called them as a witness the judge may allow questions in a manner of cross-examination

Question 38

What is circumstantial evidence?

Answer 38

Evidence of circumstances that do not directly prove any facts in issue, but which allow inferences about the existence of those facts to be drawn (eg the defendant was seen in the vicinity of a crime).

Question 39

What is the adversarial system?

Answer 39

Answer:
Conduct of criminal trials follow the adverse serial or accusatorial system of justice set up through the English common law.

Answer:
-Facts of the case, evidence relevant to those facts emerged by means of questions put by prosecution or defense to witnesses call by them

• It’s up to each party to decide what witnesses to call, the order and the questions they should be asked
• each party has the right to test a testimony of witnesses called by the opposing party three cross-examination
• During the trial the judge it’s function is to ensure the evidence is produced according to the establish rules, ruling if necessary on it’s admissibility
• The defendant does not have to give evidence or do anything to assist prosecution in the presentation of its case.
  The prosecution must prove their case beyond reasonable doubt

Question 40

What is a statement?

Answer 40

A spoken or written assertion or non verbal conduct intended by that person as an assertion of any matter.

Question 41

What is an associated defendant?

Answer 41

A person whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried.

The provisions are intended to encompass not only actual co-defendants, but also persons linked to the offending.

A person charged with burglary, both an accomplice who committed the burglary and the person who received the stolen goods would be an associated defendant under Sec 73.

Question 42

What is a witness?

Answer 42

A person who gives evidence and is able to be cross examined.

Question 43

What age does a person have to be to take an oath or affirmation before giving evidence?

Answer 43

12 years or older.

Witnesses who are under the age of 12 must be informed of the importance of telling the truth and promise to tell the truth.

Question 44

Under s16(1) a business record means a document that is?

Answer 44

Answer
- Made to comply with A duty or in the course of a business (as a record or part of a record of that business), and

• 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 matters dealt with in the information he or she supplied

Question 45

What must the judge regard under s103(4) of the Evidence Act 2006?

Answer 45

Answer:
Alternative ways of giving evidence and
the need to ensure the fairness of the proceeding that there is a fair trial
– the views of the witness
– the need to minimize the stress on the witness
– the need to promote recovery of the complainant from alleged offense
– any other factor that is relevant to the just determination of the proceeding

Question 46

Section 18 (1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance of the statement is reliable and they are either unavailable or would cause undue delay or expense
S16(1) Evidence Act 2006 provides those circumstances.
What are they?

Answer 46

Answer:
Circumstances in relation to a statement by a person who is not a witness, include—
- the NATURE of the statement, and
- the CONTENTS of the statement, and
- the circumstances related to the MAKING of the statement, and
- the circumstances related to the VERACITY of the statement, and
- any circumstances related to the ACCURACY of the statement

Question 47

When a witness needs to refresh their memory from a statement they have made, what must the prosecutor do?

Answer 47

Seek the leave of the judge to grant the request

Question 48

Define visual identification evidence…

Answer 48

A written or verbal statement by a person who saw that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about the time the act was done or

Question 49

Sec 18 - When is a hearsay statement admissible?

Answer 49

If the circumstances relating to the statement provide reasonable assurance that the statement is reliable and

• The maker of the statement is unavailable as a witness or
• The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

(reliability and unavailability or undue expense or delay)

Question 50

Define reasonable doubt…

Answer 50

After considering all the evidence, you have a reasonable uncertainty left in your mind about the guilt of the accused.

Question 51

Define veracity.

Answer 51

The disposition of a person to refrain from lying.

Question 52

When does full disclosure occur?

Answer 52

Answer:

Full disclosure occurs as soon as practicable after defendant pleads not guilty

Question 53

At any point when a person has been charged, if they request information about an identification witness, what must the prosecutor supply?

Answer 53

1) The name of the witness (and address if permitted under Sec17) whether or not the prosecutor intends on calling the witness
2) A statement of any description of the offender given by each witness to the prosecutor or Police and
3) A copy of an identikit picture or other drawing.

Question 55

The Evidence Act 2006 divides what was called “character”evidence in common law into two classes of evidence. What are they?

Answer 55

Answer:
Veracity – deposition to refrain from lying, and
Propensity – tendency to act in a particular way

Question 56

Define prejudicial.

Answer 56

Evidence adverse to a party’s case.

Question 58

Burden for defence is….

Answer 58

On the balance of probabilities.

e.g more probable than not.

Question 59

Under s74 of the Evidence Act 2006 who are not compellable to give evidence?

Answer 59

Answer:

The sovereign, governor-general, sovereign or head of state of a foreign country are not compellable to give evidence

Question 60

What must the judge take into account when assessing the probative value of evidence in regards to propensity?

Answer 60

• The frequency of the acts
• How closely in time the acts are committed to the current offending
• Similarity between the previous acts and those currently alleged
• The number of people making the allegations against the defendant
• Do the acts share similar unusual features

Question 61

What conditions are there for a witness and refreshing memory in court?

Answer 61

Answer:

• Leave of the judge must be obtained
• The document must be shown to every other party in proceeding
• The documents have been made or adopted by a witness at the time when his or her memory was fresh
• The document must’ve been made by the witness or by another person in his or her presence and is assented to by the witness

Question 62

What is the basic rule in regards to the non-compellability of a defendant?

Answer 62

A defendant is an eligible but not compellable witness for either the prosecution or defence.

e.g he or she can give evidence but doesn’t have to.

Question 63

Communication Assistance - what translation assistance is a witness able to use during trial

Answer 63

Witnesses are entitled to communication assistance in order to allow them to give evidence.
It will only be provided in order to assist the witness to understand questions put to them and for their response.

Question 64

What are the circumstances relating to a hearsay statement that provide reasonable assurance that the statement is reliable?

Answer 64

Answer:
The NATURE and CONTENT of the statement and

The CIRCUMSTANCES that relate to the making of the statement including:

the VERACITY of the person and

the ACCURACY of the observation of the person

N.C.C.V.A.

Question 65

A clear distinction must be drawn between unfavourable witnesses and hostile witnesses. Witnesses who simply fail to come up to brief may be
unfavourable to the party calling them, but they are not necessarily hostile. A hostile witness is one who ?

Answer 65

• exhibits, or appears to exhibit, a lack of veracity when giving evidence on a matter 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.

Question 66

What does section 84 of the Evidence Act 2006 provide?

Answer 66

Answer:
unless the judge directs to the contrary in any proceeding-

• A witness first of evidence in chief and
  A
• After giving evidence in chief the witness maybe cross examined by all parties other than the party that called the witness
• After all parties who wish to do so have cross examined and the witness the witness maybe re-examined
• If the witness gives evidence in an affidavit or by reading a written statement in the court room it is treated in the purposes of this act as evidence given in chief

Question 67

Sec 8 Evidence Act - General exclusion of evidence - In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—what ?

Answer 67

(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

Question 68

The rules of evidence fall into three main categories, what are they

Answer 68

• how evidence may be given;
• who may give evidence; and
• what type of material may be given in evidence

Question 69

Under section 79 of the Evidence Act 2006 an entitlement for complainants and child witnesses in criminal proceedings to have a support person present. What are complainants and witnesses allowed?

Answer 69

Answer:
The complainant is entitled to one person and may, with permission of the judge, have more than one person near him or her to give support

A child witness giving evidence in a criminal proceedings in total to have one person and may with permission of judge, have more than one person near him or her to give support

Any other witnesses giving evidence in a proceeding my with motion of the judge have one or more support persons near him or her to give support

This will apply if the witness or complainant gives evidence in an alternative way or in the ordinary way

Question 70

What 3 conditions shown constitutes a hostile witness?

Answer 70

Answer exhibits or appears to exhibit a lack of veracity when giving evidence unfavorable to the party who called the witness on the matter which the witness is supposed to have knowledge

• Gives evidence that is inconsistent with the statement made by that witness in a manner that exhibits or appears to exhibit intention to be unhelpful to the party who called a witness or
• Refuses to answer questions or deliberately withholds evidence

Question 71

Sections 15 to 18 of Criminal Disclosure Act 2008 allow for withholding of information at all stages (initial, full and additional disclosure), if:

Answer 71

Answer:
Prosecutor does not hold information and recorded form what is not a position of control of it (s15)

Likely to prejudice the maintenance of law (s16(1)(a))

Likely to endanger the safety of any person (s16(1)(b))

it is material prepared to assist in the contact of the trial prosecution (s16(1)(c)(i))

Communication between prosecutor and another person (email) (s16(1)(c)(ii))

Analytical or evaluate of material prepared (s16(1)(c)(iii))
Material subject to non-disclosure due to another enactment (s16(1)(d-f))

Disclosure likely to facilitate the commission of an offense (s16(1)(h))

The information that identifies all my lead to the identification of a witness or informant”s address (s17)

Question 72

Define propensity.

Answer 72

A person’s tendency to act in a particular way or have a particular state of mind.

Question 73

Define probative value of evidence..

Answer 73

How strongly the evidence points to the inference it is said to support and how important the evidence is to the issues in trial will determine the level of probative value that the evidence will hold.

In this sense, the probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case

Question 74

Admissibility of voice evidence…

Answer 74

Voice Identification evidence is inadmissible unless the prosecution proves on the

BALANCE OF PROBABILITIES

that the circumstances in which the identification was made have produced a reliable identification.

Question 75

When is Visual Identification Evidence admissible?

Answer 75

If formal procedure is followed (eg photo board procedure) by an enforcement officer or there is good reason for it not to be followed in regards to a person alleged to have committed an offence, that evidence is admissible unless the defendant proves on the balance of probabilities that it is unreliable.

Question 76

What is the ‘Woolmington Principle’?

Answer 76

The fundamental principle in criminal law is the presumption of innocence.

The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 77

Name 8 grounds under Sec 103 as to reasons why evidence can be given in an alternative way.

Answer 77

Answer:

• FEAR of intimidation
• The AGE or maturity of the witness
• TRAUMA suffered
• ABSENCE or likely absence of the witness from NZ
• LINGUISTIC or cultural background or religious beliefs
• The physical, intellectual, psychological or psychiatric IMPAIRMENT of the witness
• Nature of the EVIDENCE the witness will give
• NATURE of the proceeding

F. A. T. A. L. I. E. N

Question 78

What are the alternate ways of giving evidence?

Answer 78

1) In the courtroom but unable to see the defendant (behind a screen)
2) From an appropriate place outside the courtroom either NZ or elsewhere (AVL audio visual link)
3) By a video record made before the hearing of the proceeding

Question 79

R v Wanhalla - further defines “reasonable doubt”, as what

Answer 79

A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused.

Question 80

Sec 8 - Define relevant evidence…

Answer 80

In relation to any information or exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.