8 - Evidence Flashcards
Relation to oaths and affirmations
Witnesses who are 12 years of age or older?
Witnesses under the age of 12?
Answer:
Witnesses 12 and over must take an oath or affirmation
Under 12 - Judge must tell them importance of telling truth and not telling lies..
Must make a promise to tell the truth, before giving evidence
Judge can grant 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
When will propensity evidence about a defendant be admissible? (Defendant not giving evidence)
- Where the evidence has…
Where the evidence has a probative value that outweighs any unfairly prejudicial effect on the defendant.
What is the sec8 Criminal Disclosure Act 2008 definition of the meaning of “relevant”?
information or an exhibit, that tends to support or rebut, or has a material bearing on, the case against the defendant.
What are the alternate ways that a witness or complainant can give evidence?
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
Section 41 of the evidence act 2006 - ability to offer evidence of good propensity.
What does this allow the defendant to do?
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 (gym @ 7pm every night)
Under section 18 of the Evidence Act 2006 What is the general admissibility of hearsay?
Answer:
Hearsay statement are admissible in any proceeding if
- The circumstances provide reasonable reassurance that the statement is reliable and
- 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
What is the Sec 8 general Exculsion Evidence Act test?
- B/P V & U P
- N/P
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.
What is eligibility and compellability in terms of witnesses?
As a general rule
- All people are eligible to give evidence (for the prosecution or defence).
- All people who are eligible are compellable to give evidence (they can be required to testify against their will).
Sec 73 - Compellability of defendants and co-defendants -
Defendant/Associated defendant compellable?
Proceeding has been determined if?
1) 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
Who is the fact finder?
Judge or jury.
What is the prosecutions burden of proof?
Beyond reasonable doubt.
What is the standard of proof that must be reached for voice identification evidence
The burden of proof imposed on the prosecution under s 46 is proof of reliability on the balance of probabilities. “probably reliable”
What is relevant evidence?
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the proceeding.
At any time after a person has been charged with an offence, if they request information about an identification witness, what must the prosecutor supply?
- 3
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
What is admissible evidence?
Evidence is admissible if it is legally able to be received by the court.
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:
- pleaded not guilty
– when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court
Propensity evidence can be given about anyone BUT rules apply if its about the Defendant or Victim
covered by sections 41 to 44
41 - defendant can give evidence about himself eg to say I’m a burglar not a rapist, or a go to the gym every Tuesday at 7pm
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
Timeframe for delivering initial
Disclosure after the commencement of proceedings?
Answer:
Generally not later than 15 working days
What is voice identification evidence?
- 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.
D. O. U. F. C
What would be deemed to be ‘unavailable as a witness’ or ‘undue expense and delay’?
(5)
- Witness is dead
- Witness is outside NZ and it is not reasonably practicable for them to be a witness.
- Witness is unfit due to age or physical/mental condition.
- Witness cannot be found or
- Witness is not compellable to give evidence
S, W, N-V
What is a statement?
- assertion
A spoken or written assertion or non verbal conduct intended by that person as an assertion of any matter.
What is an associated defendant?
- Same
- Linked
- 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.
What age does a person have to be to take an oath or affirmation before giving evidence?
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.
F. W. S. P. F
Alternative ways of giving evidence
What must the judge regard?
Answer:
Alternative ways of giving evidence and the need to
- ensure the fairness of the proceeding so 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 determination of the proceeding
