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

What is the Sec 8 general Exculsion Evidence Act test?

Answer 7

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 9

What is eligibility and compellability in terms of witnesses?

Answer 9

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 10

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

Answer 10

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 12

Who is the fact finder?

Answer 12

Judge or jury.

Question 13

What is the prosecutions burden of proof?

Answer 13

Beyond reasonable doubt.

Question 14

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

Answer 14

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

Question 15

What is relevant evidence?

Answer 15

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

Question 16

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 16

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 18

What is admissible evidence?

Answer 18

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

Question 19

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 19

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 21

What Is the general rule regarding propensity evidence?

Answer 21

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 22

How long should initial disclosure occur after the
commencement of proceedings?

Answer 22

Answer:
Generally not later than 15 working days

Question 24

What is voice identification evidence?

Answer 24

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 25

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

Answer 25

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 26

What is a statement?

Answer 26

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

Question 27

What is an associated defendant?

Answer 27

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 28

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

Answer 28

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 29

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

Answer 29

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 30

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

Answer 30

Seek the leave of the judge to grant the request

Question 31

Define reasonable doubt…

Answer 31

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

Question 32

Define veracity.

Answer 32

The disposition of a person to refrain from lying.

Question 33

When does full disclosure occur?

Answer 33

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

Question 35

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

Answer 35

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

Question 36

Define prejudicial.

Answer 36

Evidence adverse to a party’s case.

Question 38

Burden for defence is….

Answer 38

On the balance of probabilities.

e.g more probable than not.

Question 39

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

Answer 39

• 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 40

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

Answer 40

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 41

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

Answer 41

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 42

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

Answer 42

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 43

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

Answer 43

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 44

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 44

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

Question 45

Define probative value of evidence..

Answer 45

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 46

Admissibility of voice evidence…

Answer 46

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 47

When is Visual Identification Evidence admissible?

Answer 47

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 48

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

Answer 48

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 49

What is the ‘Woolmington Principle’?

Answer 49

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 50

Define propensity.

Answer 50

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