8. Evidence Flashcards
What is evidence?
- The whole body of material which a court or tribunal may take into account in reaching their decision.
Maybe an oral, written or visual form
What three main categories do the rules of evidence fall into?
- How evidence may be given
- Who may give evidence and
- What type of material may be given evidence
Admissible evidence?
Evidence is admissible if it is legally able to be received by court.
Factfinder?
Judge or jury
Relevance?
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding.
Facts in issue?
- Those which the prosecution must prove in order to establish the elements of the offence or
- The defendant must prove in order to succeed with a defence and respect of which they carry the burden of proof
Weight of evidence?
Weight of evidence
- is its value in relation to the facts in issue.
- The “weight” is the degree of probative value that can be accorded to the evidence.
Probative value?
- How strongly evidence points to the inference it said to support
- How strongly and centrally the evidence assists proving or disproving issues in a case
Prejudicial?
- Evidence adverse to a party’s case, the drawing of an inference against a party
- Give more weight to evidence than it deserves
- Speculate inappropriately
- Be mislead by the evidence
Offers evidence?
Gives evidence
Give evidence?
A person recounting facts or opinions in a proceeding.
Witness
A witness is a person who gives evidence and is able to be cross examined.
Child complainant
A complainant who is a child (under 18 years) when the proceeding commences when a charging document is filed NOT at the beginning of the trial)
Incriminate
To provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence
Statement
A statement is a spoken or written assertion by person, or non-verbal conduct of a person intended by that person as an assertion of any matter
Hearsay statement
- Is a statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents.
- out of Court statement
Veracity
Is the disposition of a person to refrain from lying
Propensity
Is a persons tendency to act in a particular way or have a particular state of mind
Direct evidence
Any evidence by a witness as to a fact in issue which he or she has seen or heard or otherwise experienced (eye witness to a stabbing).
Circumstantial evidence
- Evidence of circumstances that do not directly prove any fact in issue, but
- allow inferences about the existence of those facts to be drawn. (Defendant was seen in the vicinity of the scene of a crime)
Enforcement agency
An enforcement agency refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of responsibility
What is the purpose of S6 Evidence Act 2006?
Providing facts, rules, fairness, protecting rights and confidentiality, avoiding unjustifiable expense and delay and enhancing access to law of evidence.
What is S7 and S8 Evidence Act 2006?
Principles governing the rules of evidence. They are rules of law and are not matters of discretion
Relevant
The fundamental condition for the admissibility of evidence is that it must be relevant. Evidence not relevant will not be admissible
S7
All relevant evidence is admissible in a proceeding except evidence that is
- inadmissible under this act
- Excluded under this act
- Evidence that is not relevant is not admissible
- Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything
S8 - General exclusion
- Unfairly prejudicial effect on the proceeding
- needlessly prolong the proceeding
S9 Evidence Act 2006
Allows evidence to be admitted by agreement between the parties (undisputed expert evidence).
Woolmington principal
- The presumption of innocence.
- The burden of proof lies clearly with the prosecution in relation to all elements of the offence.
- Has the prosecution proved its case.
When is the Evidential burden placed on the defence?
When a defence is raised, self defence or insanity
When is the Legal burden placed on the defendant?
When the defendant wishes to rely solely on the defence of insanity
Beyond reasonable doubt
Is a very high standard of proof.
A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you’ve given careful and impartial consideration to all the evidence. R v Wanhalla
R v Wanhalla
- The rationale for the burden of proof, namely the presumption of innocence
- The fact that it is not enough for the Crown to convince the fact finder of probable guilt and
- The description of what a reasonable is.
Balance of probabilities
When defence is required to prove a particular element such as insanity, it must simply show that it is more probable than not.
Corroboration
Independent evidence which implicates the defendant in the Crime charged
Perjury and treason
The judge may warn the jury about unreliable evidence
Witnesses who are 12 years of age or older must take what?
Oath or affirmation
Refreshing memory at court rules?
- leave from the judge must be obtained
- The document must be shown every other party
- The document must have been made or adopted by Witness
Hostile Witness
Exhibits a lack of veracity when giving evidence unfavourable to the party who called the Witness.
Refuses to answer questions or deliberately withholds evidence
When must Full disclosure be made?
As reasonably practicable After a defendant has either
- Pleaded not guilty or
- When the defendant is a child or young person, makes a first appearance in youth Court
What is the meaning of relevant?
That tends to support or rebut or has a material bearing on the case against the defendant.
Support person and communication assistant
Reduce stress and trauma for a witness.
Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak language used in Court- only when witnesses are giving their evidence.Defendant can have one for trial if necessary
S103 Evidence Act 2006? - Alternative ways of giving evidence.
What grounds may this direction be made by the judge?
- The age or maturity of the Witness
- The physical, intellectual, psychological, Impairment of the Witness
- Trauma suffered by the Witness
- Witnesses fear of intimidation
- The cultural background
- The nature of the proceeding
- Nature of the evidence of the Witness
- Absence of the Witness from New Zealand
S103 -alternative ways of giving evidence, What else must the judge have regard to?
- The need to ensure the fitness of the proceeding
- The view of the Witness
- The need to minimise the stress on the Witness
- The need to promote the recovery of a complainant from the alleged offence
- Any other factor that is relevant to the just determination of the proceeding
When the judge is satisfied that the Witness should be able to give evidence in an alternative way.
- While in the Court room but unable to see the defendant (screens)
- From an appropriate place outside the Court room, In New Zealand or elsewhere
- By a video record made before the hearing of the proceeding.
Can a child witness give the evidence in an alternative way?
Yes, unless the witness is either a defendant who was a child, a sexual case complainant, or propensity Witness who is a child
Eligible and compellable. What are some exceptions to this?
All witnesses are eligible to give evidence s71
Compellable means They can be required to testify against their will by both prosecution and defence.
Exceptions
- Unfit to be a witness because of age physical or mental condition condition
- s7 and s8 Can exclude persons from giving evidence where it would be irrelevant, unfairly prejudicial, or needlessly prolonging proceedings
S73 - Compellability of defendants and associated defendants
An associated defendant is not compellable To give evidence for against a defendant unless
- The associated defendant has been tried separately from the defendant or.
- The proceeding against the associated defendant has been determined
An associated defendant means a person Against whom a prosecution has been instituted for
- An offence that arose in relation to the same event in which the defendant is being prosecuted.
- And offence that relates to or is connected with the offence for which the defendant has been prosecuted
Can a co-defendant give evidence?
No
When can privileged evidence be excluded?
Depends on the contents, the class of evidence, or because of the nature of a particular relationship
- legal advisors, Solicitors, Settlement negotiations, Ministers of religion, Medical Practitioners And psychologists
- Privilege against self incrimination
Marital privileged no longer exists
Judges and bank officers compellable?
No. Banking records can be proven under a business record, Exception to the hearsay rule.
Claim of privilege is that information is withheld from the Court
The public interest underlying the claim must be a significant one and one which outweighs the interest in having all the relevant evidence before the court
Judicial discretion to protect confidentiality. This allows the judge to weigh competing public interests and deciding whether to protect the confidentiality of Communications
Veracity
Disposition to refrain from lying
With propensity evidence, does the defendant have to be convicted for the evidence to qualify as admissible
No. However, the absence of conviction may affect the assessment of the probative value of the evidence
- “ Prior acquittal evidence”.
Propensity
Tendency to act in a particular way or have a particular state of mind
What factors are considered when assessing propensity And probative value
- Frequency of acts demonstrating the defendants propensity increases the probative value of evidence
- How closely connected in time are the propensity acts to the current alleged offending
- Similarity between the previous six and those currently charged
- The number of people making allegations against the defendant
- do the acts share similar unusual features
Evidence of sexual experience and reputation of complaints in sexual cases
The permission of the judge is required before any evidence may be given or before any questions are put to a complainant regarding their sexual experience with anyone other than the defendant
- The judge may only give permission where the satisfied that the evidence is of such direct relevance to facts in issue or to exclude it would be contrary to the interests of justice.
- no evidence can be given or question put relating directly or indirectly to the reputation of the complainant and sexual matters
S18 -General admissibility of hearsay
Hearsay statement is admissible in any proceedings if
- The circumstances relating to the statement provide reasonable assurance that the statement is reliable and
Either
- The maker of the statement is unavailable as a witness
- The judge considers that undue expense or delay would be caused if the maker of this statement were required to be a witness
S18 main exception to hearsay rule
- reliability
- unavailability or undue expense or delay
The notice requirement in s22 Evidence Act 2006 must also be met before a hearsay statement can be admitted.
What circumstances in relation to a statement by person who is not a witness include?
- The nature of the statement
- The contents of the statement
- The circumstances that relate to the making of the statement and
- Any circumstances that relate to the veracity of the person and
- Any circumstances that relate to the accuracy of the observation of the person
When is a person unavailable as a witness in a proceeding?
- is dead
- is outside New Zealand and it’s not reasonably practicable for them to be a witness
- is unfit to be a witness because of age, physical or mental condition or
- Cannot with reasonable diligence be identified or found
- Is not compellable to give evidence.
Are business records hearsay evidence?
Yes, because there can be no reasonable expectation that the person will be able to recollect the matters dealt with in the information supplied for the business record
S45 - Visual identification evidence
- Visual identification evidence obtained by way of a formal procedure followed by officers will be admissible, Unless the defendant proves on the balance of probabilities that it is unreliable
- No formal procedures followed any visual identification evidence resulting from an informal procedure will be inadmissible (unless The prosecution can provide a good reason under S45(4) That the informal Procedure Requirements not fully met
Voice identification evidence s46
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
- Proof of reliability on the balance of probabilities
List some of the good reasons requirements are not fully met in an informal Identification procedure?
- Refusal to participate
- Singular in appearance
- Change of appearance
- No anticipation that identification would be an issue
- identifications made shortly after the offence
- Chance meetings
S30 -A statement that is improperly obtained
RV Williams - The exclusion of evidence and such cases would be unbalanced and disproportionate to the circumstances of the breach
S28 exclusion of unreliable statements
Unreliable confession to the alleged offence was procured or a threat or promise by Police or defendant’s alcohol consumption or mental illness or whether the statement was in fact made
S 30 improperly obtained evidence
R v Williams
- where the legal breach that occurred in obtaining the evidence was minor, the balancing exercise often leads to evidence being admissible where the Crime is serious and the evidence is reliable, Highly probative and crucial to the prosecution case. The exclusion of evidence in such cases would be unbalanced and disproportionate to the circumstances of the breach.
What is the general rule with s18 Evidence Act 2006 and hearsay statements?
A
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
