8. Evidence of Law and Burden of Proof Flashcards
1
Q
What is Evidence?
A
Evidence” is the term for the whole body of material which a court or tribunal – i.e. in criminal cases the Judge or jury – may take into account in reaching their decision.
Evidence may be in oral, written or visual form.
2
Q
The Rules of Evidence fall into three categories, what are these?
A
How, who and what
- how evidence may be given;
- who may give evidence; and
- what type of material may be given in evidence.
3
Q
What is Admissible Evidence?
A
Evidence is admissible if it is legally able to be received by a court.
4
Q
What is a fact finder?
A
Judge or jury
5
Q
Describe relevance
A
Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (s7(3) Evidence Act 2006).
8 Meaning of relevant
In this Act, relevant, in relation to information or an 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.
6
Q
What are facts in issue?
A
Facts in issue are those which the prosecution must prove in order to establish the elements of the offence; or those which the defendant
must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.
7
Q
Tell me about the weight of evidence?
A
The “weight” is the degree of probative value that can be accorded to the evidence.
8
Q
Tell me about probative value
A
How strongly evidence points to the inference it is said to support,
and how important the evidence is to the issues in the trial, will determine the level of probative value that a piece of evidence holds. In this sense,
probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case.
9
Q
Describe Prejudicial
A
evidence adverse to a party’s case; the drawing of an inference against a party. However, the exclusion in s 8 Evidence Act 2006 relates to unfair prejudice. This could include, for example, the danger that the jury may give more weight to evidence than it deserves, speculate inappropriately about the meaning or significance of evidence, be misled by the evidence, and/or use the evidence for an illegitimate purpose.
10
Q
What does offer evidence mean?
A
A party “offers” evidence. This includes calling a witness who “gives evidence”; a party who testifies both gives and offers evidence. It also includes eliciting evidence by cross-examining a witness called by another party (merely putting a proposition to a witness is not offering evidence; it becomes so when the witness adopted the proposition: section 96(1) Evidence Act 2006; Morgan v R [2010] NZSC 23 per Elias CJ at [9]).
11
Q
What does give evidence mean?
A
A person recounting facts or opinions in a proceeding “gives evidence
12
Q
how can evidence be given
A
- in the ordinary way – the ordinary way of giving evidence is either orally in a courtroom in the presence of a Judge (or Judge and jury), parties to the proceeding, counsel, and members of the public allowed by the Judge; or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent and the statement is admissible and is the personal statement of the deponent or maker;
- in an alternative way – in the courtroom but unable to see the defendant or other person, outside the courtroom, or by video record made before the hearing.
The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss 103-106 Evidence Act 2006, which provides for applications and directions regarding alternative ways of giving evidence; • in any other way provided for by the 2006 Act or any other enactment; • where evidence is to be used in overseas criminal proceedings, “giving evidence” includes answering any question and producing any document (s195(3) Evidence Act 2006).
13
Q
What is a witness?
A
a witness is a person who gives evidence and is able to be cross- examined in a proceeding.
14
Q
Describe a child complainant
A
a complainant who is a child (under 18 years) when the proceeding commences (when charging document is filed NOT at the beginning of the trial).
15
Q
Describe Child witness
A
a witness who is a child when the proceeding commences, and includes a child complainant but does not include a defendant who is a child.
16
Q
Describe Incriminate
A
To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
17
Q
Describe Statement
A
a statement is a spoken or written assertion by a person, or non- verbal conduct of a person intended by that person as an assertion of any matter.
18
Q
Describe Hearsay statement
A
A 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.
This definition of “hearsay statement” means that out-of-court statements made by a “witness” (that is, someone who gives evidence and is able to be cross-examined in a proceeding) are not excluded by the hearsay rule on the basis that the maker is available to be cross-examined. Also, a statement offered for some other purpose than to prove the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement. The hearsay rule is discussed further below.
19
Q
Must Know - Describe Veracity
A
veracity is the disposition of a person to refrain from lying
20
Q
Must know - Describe Propensity
A
propensity is a person’s tendency to act in a particular way or have a particular state of mind.
21
Q
Describe Direct evidence
A
any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife gives direct evidence).
22
Q
Describe Circumstantial evidence
A
evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime).
23
Q
What are the six objectives of Section 6 of the Evidence Act
A
Logical rules Rules of evidence fairness confidentiality avoiding undue cost and delay enhancing access to the law of evidence.
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
24
Q
What are the Principles Governing the Rules of Evidence
A
The Supreme Court have made it clear that rules of admissibility, including ss 7 and 8, are rules of law and are not matters of discretion. Although they involve questions of judgment, they “prescribe standards to be observed”
25
Tell me about Section 7
All relevant evidence is admissible in a proceeding except evidence that is –
(a) Inadmissible under this Act or any other Act; or
(b) Excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
If the judge decides that a piece of evidence is relevant, then subject to any other legal rules of inadmissibility or exclusion, the party will be entitled to present the evidence in the proceeding. Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.
Once received, the degree of probative force, or “weight”, to be given to the evidence is a question for the trier of fact (Judge alone or jury).
26
Tell me about Section 8.
(1) In any proceeding, the Judge must exclude evidence if its probative value is
outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
27
Must know- What is the “Woolmington Principle”.
The fundamental principle in criminal law is the presumption of innocence, 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
28
Tell me about section 6 and the objectives of the act
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
29
Describe the link between relevance and admissibility
Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.
Once received, the degree of probative force, or “weight”, to be given to the evidence is a question for the trier of fact (Judge alone or jury).
The fundamental condition for the admissibility of evidence is that it must be relevant. Evidence that is not relevant will not be admissible.
30
Who may decide on the probative force evidence is given
Once received, the degree of probative force, or “weight”, to be given to the evidence is a question for the trier of fact (Judge alone or jury).
31
Must Know - Tell me about the burden of proof
The burden of proof lies with the prosecution in relation to all elements of the offence. Once the defendant used the evidential burden and it becomes a live issue it is up to the prosecution to destroy the defence as they have a burden of proof. For example self defence in a stabbing
The existence of such an “evidential burden” is therefore not inconsistent with Woolmington. The burden of proof remains where that case puts it – with the prosecution. The ultimate question for the jury is always “has the prosecution proved its case?”
32
What offences does the Woolmington principle not apply to ?
these are known as public welfare regulatory offences.
33
What standard of proof must the prosecution reach ?
In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”
34
Tell me about Beyond 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”.
Beyond reasonable doubt 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.
35
What standard of proof must the defence reach
any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
36
Tell me about the Balance of Probabilities
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.
37
Explain what corroboration evidence means?
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.
38
What two offences require corroboration evidence ?
perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s 73 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.
39
Tell me about how you can refresh memory before a court hearing
Witnesses may, before they give evidence in court, refresh their memory by reference to briefs of evidence prepared on the basis of statements which they may have made some months before, or may check their recollection of events with the officer who interviewed them, and so forth. The documents which the witness uses to refresh his or her memory may have been made by either the witness or by someone else; the requirement is simply that the document relates to matters which are within the witness’s own knowledge.
40
What is a hostile witness
A witness who exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness,
gives evidence inconsistent with a statement made by that witness in a manner which appears to be unhelpful to the party that called them,
refuses to answer any questions or deliberately withholds evidence.
41
Describe the admissibility rules relating to reliability
Reliability
Not a general ground of inadmissibility, the Act contains specific admissibility rules relating to reliability. Therefore, relevant evidence may sometimes be excluded - or if admitted may attract a judicial warning - because it is regarded as unreliable (s 122 is the primary section dealing with this). We will examine reliability in more detail later in this chapter, when we discuss hearsay evidence and identification evidence.
42
Under section 125(1) what must you be mindful of with regards to a child complainants and corroboration?
Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.
43
What is required in initial disclosure and how many days after the commencement of proceedings should it be made.
```
Summary of facts,
charging document,
summary of defendants right to apply for more.
Max or minimum penalty.
Previous convictions
```
Should be made no later that 15 working days after the commencement of proceedings.
44
Who must take an oath or affimation
Any person over the age of 12 unless the judge decides otherwise.
45
What about if under 12 years
must be informed by the Judge of the importance of telling the truth and not telling lies and make a promise to tell the truth .
46
Under section 84 of the evidence act how will witnesses be examined ?
(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the
contrary, in any proceeding—
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
(2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.
47
What does the judge have to consider in relation to section 9. Admitting evidence when both parties aggree?
The judge has to ensure that the trial is fair, and as such retains control of the process and may decline to admit the evidence even if all parties agree to its admission; or may not agree to admit it in the form agreed to by the parties (R v Hannigan [2012] NZCA 133 at [13]). The most obvious example would be where, in the judge’s view, the evidence or the mode of offering it would amount to a breach of s 8. Section 9 also enables both prosecution and defence to admit facts so that they do not need to be proved. This can be useful, for example, where there is expert evidence that is not in dispute.
48
Outline Section 8 of the Eveidence Act , what does it help a judge do?
The intention of Section 8 is to help a judge manage the length of a trial and to ensure fairness of the proceeding
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is
outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
49
What is the fundamental condition for admissibility of evidecen
Evidence that is not relevant will not be admissible
50
What is a child complainant
The complainant who is a child under the age of 18 years when the proceeding commences
51
How is a witness under the age of 12 given an oath or affirmation
They must be informed by the judge of the importance of telling the truth and not telling lies and they must promise to tell the truth before giving evidence.
52
What does Section 107 of the Criminal Procedure Act 2011 allow? ( Defence may call a witness
Immediately after a prosecution witness.
53
What is the four step regime of the Criminal Disclosure Act 2008
Initial disclosure by the prosecution,
Full disclosure by the prosecution
Defence Disclosure
Third party disclosure
54
In relation to the Criminal Disclosure Act 2008 what is 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.
55
What are the two exception to the prohibition on previous consistent statements
To respond to a challenge to the witnesses veracity or accuracy
56
What must the probative value of propensity evidence have?
The probative value must outweigh the risk of an unfairly prejudicial effect
57
What are the two purposes of cross examination
To elicit information supporting the case
| To challenge the accuracy of the testimony given in evidence in chief.
58
What factors are present for the duty to cross examine
The topic of cross examination is a signification matter. The matter is relevant to the issue
The matter contradicts the evidence of a witness
The witness must reasonably be expected to be in a position to give admissible evidence on the matter.
59
When is an associated defendant compelleable to give evidence for both the crown and the defence
where the associated defendant has been tried separately of where the proceeding against the associated defendant has been determined
60
Is marital privilege allowed
No
61
Must Know- Define Hearsay evidence (s4)
A statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents.
Note the other than a witness and prove the truth of its contents.
62
Must know - When can hearsay evidence be admissible? Section 18
The statement is reliable and the make of the statement is unavailable as a witness or undue expense or delay could occur if the maker is required to be a witness
(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—
(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
63
Evidence e offered by the prosecution of the statement made by defendant is not admissible against the defendant if what?
If it is excluded under any of the following rules.
The reliability rule
the oppression rule
the improperly obtained evidence rule
64
Where is the emphasis of any inquiry determining admissibility under the reliability rule
The emphasis is on the circumstances not whether the statement is actually reliable
65
What is the onus of the prosecution once the issue of unreliability has been raised
To prove on the balance of probabilities that the circumstances would not have adversely affected its reliability
66
What is the onus on the judge when an issue of oppression has been raised
The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not adversely affected by oppression
67
What is the meaning or oppression under the evidence act
Oppressive, violent, inhuman or degrading conduct towards or treatment of the defendant or another person or a threat of conduct or treatment of that kind.
68
What is the onus on the prosecution once an issue of oppression has been made
To satisfy the judge beyond reasonable doubt that the defendants statement was not influenced by oppression
69
When must a judge exclude improperly obtained evidence
If the judge determines that its exclusion is proportionate to the improperly and is satisfied on the balance of probabilities that the evidence was improperly obtained.
70
Must Know - What is the burden of proof imposed on the prosecution for the admissibility of voice identification evidence
The burden of proof is on the balance of probabilities
71
What is the inherent risk of identification evidence
There is an inherent risk of unreliability
72
What is the special warning a judge needs to provide a jury about identification evidence
mistaken identification can result in a serious miscarriage of justice and mistaken witnesses maybe convincing and more than one identification witnesses may be mistaken.
73
How does the evidence act define opinion
The statement of opinion that tends to prove or disprove a fact
74
What is required for expert opinion evidence to be admissible
It mus offer substantial help to the fact finder and understanding of the evidence or ascertaining any fact in the proceeding
75
What is the overriding duty of an expert witness
To assist the court impartially
76
What defines and expert in the evidence act
A person who has specialised knowledge or skill based on training study or experience
77
If the defendant intends to off expert opinion evidence in a criminal proceeding what is required
Notice of the intention to call expert evidence is required at least 10 working days before the the day of the trail.
78
Tell me about section 9 of the Evidence act ( Support persons)
A complainant , child witness and any other witness is entitled to a support person.
Must have permission of the judge and
must disclose the name of each support person.
79
Alternative way of giving evidence, grounds on which a judge may order this
The age and maturity of the witness
The physical, intellectual, psychological or psychiatric impairment of the witness .
Trauma suffered by the witness,
witness fear of intimidation.
Cultural linguistic background
Nature of proceedings
Nature of evidence the witness is expected to give
Relationship of the witness to any party to the proceeding
absence or likely absence of the witness from New Zealand
80
What are the alternative ways of giving evidence
Video recorded
Behind a screen while in court
From an appropriate place outside the court.
81
Section 72 of the Evidence Act ( Who is unable to give evidence)
Judges, jurors, layers,judges are unable to give evidence. Jurors and lawyers can give evidence if they have permission from the judge.
82
Section 73 of the Evidence Act (who is not compellable to give evidence)
Defendants and associated defendants in criminal proceedings. A defendant is not a compellable witness for either prosecution or defence.
83
Tell me about the types of privilege
Privilege for communications with legal advisers - Section 54
Privilege and solicitors trust accounts- Section 55
Privilege for predatory materials for proceedings - Section 56
Privilege for settlement negotiations, mediation and plea discussions- Section 57
Privilege from communication with ministers of religion - Section 58
Privilege of information obtained by medical practitioners and psychologists- Section 59
Privilege against self incrimination - Section 60
Informer privilege - Section 64
84
What are the two types of character evidence
Veracity- Disposition from lying
| Propensity - tendency to act in a particular way
85
Section 41 of the Evidence Act ( Propensity )
Propensity evidence about defendants may offer good, bad or neutral propensity.
86
Section 42 Evidence Act
Propensity evidence about co defendants may only offer propensity evidence about a co offender if the evidence is relevant to a defence raised or proposed to be raised by a defendant
87
Section 43 Evidence Act
Propensity evidence raised by prosecutions about a defendant
88
What things will be considered when assessing the probative value of propensity evidence
The frequency of the acts demonstration the defendants propensity increases the probative value of the evidence .
How closely the propensity act and the alleged offending has taken place similarity between the previous act and those currently alleged.
Number of people making the allegations
Whether allegations may be the result of collusion
Do the acts share similar unusal features?
89
Must Know - When is a person unavailable as a witness in a procedding
When they are dead
Outside NZ and isn't reasonably practicable to get them .
Unfit to be a witness due to age, mental condition etc
Cannot be found or identified
Is not compellable to give evidence
90
Admissible Identification evidence - Section 45 what is the effect
Visual Id made by way of formal procedure will be admissible unless the defendant proves it is unreliable
If formal procedure is not followed ID evidence is inadmissible unless there is a reason .
ID procedure must be conducted by officers of enforcement agency
Must be a person alleged to have committed an offence
91
Must Know - Identification Evidence - Formal procedure key points
Must be observed as soon as practicable after offence
Suspect must not be compared to fewer than 7 persons of similar appearance
Cannot indicate to the person who the suspect is
Person must be informed that the suspect may not be in the procedure
Person must be informed that the suspect may or may not be in the procedure
Must be sworn as true and complete by the officer who completed it.
A pictorial record signed as true and correct by the officer that completed it
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to
an officer of an enforcement agency; and
(b) in which the suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the suspect; and
(d) in which the person making the identification is informed that the suspect may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is
sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
92
Must Know- What would be a good reason for not following formal procedure. Note this list is not exhaustive.
Refusal by the suspect
Singular appearance of suspect
Substantial change in appearance
No one could reasonable anticipate that identification was an issue
If ID made to officer soon after the offence
If ID made after chance meeting between suspect and person who made it.
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
(a) a refusal of the suspect to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the singular appearance of the suspect (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial change in the appearance of the suspect after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged
offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the
offence occurred and in the course of that officer’s initial investigation:
(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.
93
Section 44 Evidence of sexual experience
Evidence of sexual experience of complainant in sexual case must have permission of the judge before asking these types of questions.
94
The conduct of a trial follows what system
The adversarial system
95
The adversarial system - The key points
The facts of the case can emerge by means of questioning by prosecutions or defence witnesses
Each party decided which witnesses to call
Each party can test the others witnesses via cross examination
The judges function is to make sure evidence produced is within the rules
Defendant does not have to give evidence and demand the prosecution prove the element beyond reasonable doubt.
96
Full disclosure must be made
As soon as reasonably practicable if the defendant has pleaded not guilty.
97
When must full disclosure be made for a child or young person
before the first appearance in the youth court
98
Sections 15-18 Criminal Disclosure Act 2008 allow for withholding of information at all stages (initial, full and additional disclosure), if
the prosecutor does not hold the information (s15)
disclosure is likely to prejudice the maintenance of the law (s 16(1)(a))
disclosure is likely to endanger the safety of any person (s 16(1)(b))
it is material prepared to assist in the conduct of the trial/ prosecution (s 16(1)(c)(i))
it is material prepared to assist in the conduct of the trial/ prosecution (s 16(1)(c)(i))
a communication dealing with matters relating to the conduct of the prosecution and is between the prosecutor and another person employed by the same person or agency that employs the prosecutor; or the prosecutor and any adviser to the prosecutor (s 16(1)(c)(ii))
it is analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor (s 16(1)(c)(iii)
it is material subject to non-disclosure under another enactment or disclosure would be contrary to the provisions of any other enactment (s 16(1)(d)-(f), s 16(1)(k))
.
disclosure is likely to prejudice the security or defence of New Zealand or international relations (s 16(1)(g)(i)); or prejudice entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation (s 16(1)(g)(ii)).
disclosure is likely to facilitate the commission of an offence (s 16(1)(h)).
disclosure would constitute contempt of court or of the House of Representatives (s 16(1)(i)).
the information is publicly available (s 16(1)(l)), has previously been made available to the defendant (s 16(1)(m)- for example under the Official Information Act 1982 or Privacy Act 1993) or does not exist/ cannot be found (s 16(1)(n)).
the information reflects on the credibility of a witness who will not be called by the prosecution, but may be called by the defence and is not for any other reason relevant (s 16(1)(o)).
Information that identifies or may lead to the identification of the witness’s or informant’s address (s 17 – such information may be disclosed to the defendant only with the leave of the court or if it is necessary to disclose the information in the charge in order to ensure that the defendant is fully and fairly informed of the charge).
the information would disclose a trade secret or prejudice the commercial position of the supplier of the information (unless it is in the public interest to disclose it) (s 18).
If the prosecutor does withhold information, reasons must be given.
99
The Police instructions on criminal disclosure advise that, when deciding whether information or an exhibit supports or rebuts the case against the defendant, prosecutors should consider whether the information or exhibit:
• will help or hinder the defendant’s ability to defend the charges;
• would or might detract from the prosecution case, or assist the defence, or incriminate another person.
Will help or hinder the defendant’s ability to defend the charges;
Would or might detract from the prosecution case, or assist the defence, or incriminate another person.
100
Tell me about refreshing memory in court
Where a written record of the details of an event was prepared by a witness at the time of its occurrence or shortly thereafter and includes details which the witness cannot now recall, it obviously makes sense to allow the witness to refer to that document in the course of evidence. This is generally permitted as “refreshing memory”, in recognition of the fact that trials often occur months or years after the event and that the memory of witnesses will have dimmed over time.
101
Who is eligible to give evidence
As a general proposition, all persons are eligible to give evidence – that is, they are lawfully able to give evidence on behalf of both prosecution and defence; and all persons who are eligible are compellable to give that evidence – that is, they can be required to testify against their will by both prosecution and defence.
102
Must Know - As far as compel ability goes what is an associated defendant ?
(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted;
(b) an offence that relates to, or is connected with, the offence for which
the defendant is being prosecuted.
103
When can a person with a privilege give evidence
Privilege may be waived at any time by the person who is entitled to rely on it. Waiver ends the ability of the privilege holder to assert his or her rights - for example, the right to require that the material not be disclosed in a proceeding. However, this does not necessarily mean that privilege has been destroyed for all purposes. Despite a waiver, an “interested person” could still apply for an order, under s 52 Evidence Act 2006, that the privileged material remains inadmissible. This reflects the fact that sometimes someone other than the privilege holder will want to prevent privileged material being given in evidence.
104
Must know - Tell me about the focus of the act around formal identification.
The focus under the Act is on whether or not a formal procedure was undertaken. This means that photographic and video identification may be used where the procedure adheres to the requirements under s 45(3). How the procedure is utilised is the key, not whether one “method” is better than another.
105
Must know - What is the general rule around who propensity evidence should be
General rule
The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions:
• propensity evidence about a defendant may only be offered in accordance with sections 41, 42 or 43; and
• in sexual cases propensity evidence about a complainant’s sexual experience may only be offered in accordance with section 44.
note the any person
106
Must Know - Under the act hearsay is described as?
“a statement that was made by a person other than a witness, and is offered in evidence at the proceeding to prove the truth of its contents” (s 4).
107
Must Know - Tell me about the relationship between relevance and admissibility
Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.
108
Must know - Tell me about the evidential burden on the prosecution Once a defence like self defence is raised by the defence
It is 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.
109
Must know - What does propensity evidence not include?
It does not include evidence of an act or omission that is one of the elements of the offence for which the person is being tried
110
Must know - Under section 16(2) When is a person unavailable as a witness?
(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—
(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
