8. Evidence Flashcards
What is the fundamental principle in criminal law?
The presumption of innocence.
what is the presumption of innocence also known as?
The “Woolmington Principle”. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
While the principle is still regarded as a fundamental tenet of the criminal law, it is subject to what?
A number of limitations in both law and practice.
The fact that the prosecution bears the ultimate burden of proving the case beyond reasonable doubt does not mean what?
A. That the defence need not put forward any sort of case at all. If, for example, the
prosecution proves that D confronted V, took a knife out of her bag, and stabbed him, it would be unwise for V’s lawyer to refrain from cross-examination or from calling evidence in reliance on the burden of proof.
In such a case, once the prosecution has proved the facts from which, in the absence of some sensible explanation from the defendant, it is an inescapable conclusion that D both wounded and intended to wound V, D in effect has to what?
Produce some sort of story if she wants to suggest that the conclusion is wrong. This is not, however, a burden of “proof” – D does not have to prove anything. Rather, it is a practical obligation to point to some evidence which suggests a reasonable doubt about the conclusions one would otherwise draw from the prosecution case.
What happens if D wishes to put up a defence to the charge?
Rather than simply stating they did not do the act or have the necessary mental element. In presenting its case, the prosecution is under no obligation to negative all the various possible defences which might be available to a defendant.
Once the basic elements have been proved – that D deliberately stabbed V – it is up to D to what?
Point to some evidence that suggests an explanation – such as, for example, that she was acting in self-defence. This is, however, not just a “practical obligation” of the sort discussed in the last paragraph.
What is practical obligation also known as
An “evidential burden” on the defence. Here self-defence cannot be left to the jury or considered by the judge unless it has been made a “live issue” by the defence. However, once it is made a “live issue”, it is then up to the prosecution to destroy the defence, as they retain the burden of proof
The existence of such an “evidential burden” is therefore not inconsistent with Woolminton. The burden of proof remains where?
It remains where that case puts it – with the prosecution
What is the ultimate question for the jury?
It is always “has the prosecution proved its case?”
Are there exceptions to the Woolmington principle?
There are exceptions in which the legal burden is unequivocally placed on the defendant, for example where the defendant wishes to rely on the defence of insanity (s23 Crimes Act 1961) and where there exist specific statutory exceptions (eg s180(4) Crimes Act 1961). There are places where the Evidence Act 2006 places the burden of proving a particular issue on one party, and occasionally this may be the defendant (see, for example, s45 regarding identification evidence).
What public welfare regulatory offences?
Offences where Woolmington is seen simply to not apply. The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public, rather than to punish individuals for immoral or otherwise blameworthy conduct (e.g. offences related to maritime and aviation safety). In these cases the courts have developed a no-fault defence, with the burden of proof on the defendant.
Any party bearing a legal burden of proof must what?
discharge this burden to the standard required
In general, where the legal burden is on the prosecution it must what?
Be discharged “beyond reasonable doubt”. In contrast, any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
What is Beyond Reasonable Doubt?
A. The courts have been reluctant to provide any detailed or precise definition of the meaning of “beyond reasonable doubt”.
Q. What does the Court of Appeal in R v Wanhalla [2007] 2 NZLR 573 at [49] tell us?
A. It formulated some assistance to juries after reviewing overseas research and models, concluding that juries should be told that:
“Proof beyond reasonable doubt is a very high standard of the proof which the Crown will have met only if, at the end of the case, you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.
What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence”.
What has the Court of Appeal noted as the salient features of the Wanhalla direction?
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 doubt is (R v Peato [2009] NZCA 333).
What does R v Peato tell us what Beyond reasonable doubt means?
A. It is a very high standard of proof which the Crown will have met only if, at the end of the case, the jury is sure that the defendant is guilty.
What does on the Balance of Probabilities mean?
Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.
What does Section 121 of the Evidence Act 2006 govern?
It governs the general approach and exceptions relating to corroboration, and in doing so it reflects the previous law. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard. It does not always follow that the court will act upon the evidence of one witness; it simply means that it may do so when sufficiently satisfied as to its cogency.
What are the two types of offence where this is not the case? (112 evidence act)
Perjury and related offences (ss108, 110 and 111 Crimes Act) and treason (s73 Crimes Act) — in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, “corroboration”, which is some independent evidence which implicates the defendant in the crime charged, is required as a matter of law.
What does section 121(2) provide for?
That there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction relating to the absence of corroboration.
What is 121(2) subject to?
A. The exceptions in s121(1) for perjury and treason, and to s122 (whereby the judge may warn the jury about unreliable evidence). Under s122, if the judge is of the opinion that uncorroborated evidence may be unreliable, he or she may warn the jury of the need for caution. For some types of evidence, such as hearsay evidence, s122(2) provides that in jury trials the Judge must consider whether to give such a warning.
Section 125(1) prohibits what?
A corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.
What is Identification Evidence?
Evidence of identity usually takes the form of a witness stating that a person is the same as someone he or she saw on a previous occasion. In New Zealand, both visual and voice identification evidence has been admitted in criminal cases.
The admission of ID evidence is subject to what?
It is subject to certain restrictions. These restrictions are a reflection of the inherent unreliability of both eye witness and ear witness identification: our memories are prone to incompleteness, distortion and forgetfulness.
Visual identification evidence is defined in the 2006 Act as?
· An assertion by a person, based wholly or partly on what that person saw, to the effect 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
· an account (whether oral or in writing) of an assertion of the kind described above.
Visual ID is a fairly broad definition, potentially encompassing what?
A. Evidence where the person making the assertion is uncertain; and also covering identification evidence not only of a suspect but also of other persons or things, provided that seeing those other persons or things constituted an assertion that a defendant was present at or near the place in question (for example, identification of the defendant’s car). However, the provisions of s45 apply only to identifications of persons alleged to have committed an offence, and so other forms of visual identification evidence will be governed by the general provisions of ss7 and 8.
The definition in s4 does not cover what?
Resemblance evidence (evidence that a person shares features or attributes with the defendant, rather than direct identification: R v Turaki [2009] NZCA 310 at [58]); it does cover recognition evidence; and it will also cover some cases of observation evidence, where the defendant does not deny being at the scene but does deny acting in a particular way.
What does Section 45 Evidence Act 2006 govern?
A. The admissibility of visual identification evidence.