8. Evidence of Law and Burden of Proof

Question 1

What is Evidence?

Answer 1

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.

Question 2

The Rules of Evidence fall into three categories, what are these?

Answer 2

How, who and what

• how evidence may be given;
• who may give evidence; and
• what type of material may be given in evidence.

Question 3

What is Admissible Evidence?

Answer 3

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

Question 4

What is a fact finder?

Answer 4

Judge or jury

Question 5

Describe relevance

Answer 5

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.

Question 6

What are facts in issue?

Answer 6

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.

Question 7

Tell me about the weight of evidence?

Answer 7

The “weight” is the degree of probative value that can be accorded to the evidence.

Question 8

Tell me about probative value

Answer 8

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.

Question 9

Describe Prejudicial

Answer 9

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.

Question 10

What does offer evidence mean?

Answer 10

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]).

Question 11

What does give evidence mean?

Answer 11

A person recounting facts or opinions in a proceeding “gives evidence

Question 12

how can evidence be given

Answer 12

• 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).

Question 13

What is a witness?

Answer 13

a witness is a person who gives evidence and is able to be cross- examined in a proceeding.

Question 14

Describe a child complainant

Answer 14

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).

Question 15

Describe Child witness

Answer 15

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.

Question 16

Describe Incriminate

Answer 16

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.

Question 17

Describe Statement

Answer 17

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.

Question 18

Describe Hearsay statement

Answer 18

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.

Question 19

Must Know - Describe Veracity

Answer 19

veracity is the disposition of a person to refrain from lying

Question 20

Must know - Describe Propensity

Answer 20

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

Question 21

Describe Direct evidence

Answer 21

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).

Question 22

Describe Circumstantial evidence

Answer 22

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).

Question 23

What are the six objectives of Section 6 of the Evidence Act

Answer 23

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.

Question 24

What are the Principles Governing the Rules of Evidence

Answer 24

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”

Question 25

Tell me about Section 7

Answer 25

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).

Question 26

Tell me about Section 8.

Answer 26

(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.

Question 27

Must know- What is the “Woolmington Principle”.

Answer 27

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

Question 28

Tell me about section 6 and the objectives of the act

Answer 28

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.

Question 29

Describe the link between relevance and admissibility

Answer 29

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.

Question 30

Who may decide on the probative force evidence is given

Answer 30

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).

Question 31

Must Know - Tell me about the burden of proof

Answer 31

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?”

Question 32

What offences does the Woolmington principle not apply to ?

Answer 32

these are known as public welfare regulatory offences.

Question 33

What standard of proof must the prosecution reach ?

Answer 33

In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”

Question 34

Tell me about Beyond Reasonable Doubt

Answer 34

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.

Question 35

What standard of proof must the defence reach

Answer 35

any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.

Question 36

Tell me about the Balance of Probabilities

Answer 36

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.

Question 37

Explain what corroboration evidence means?

Answer 37

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.

Question 38

What two offences require corroboration evidence ?

Answer 38

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.

Question 39

Tell me about how you can refresh memory before a court hearing

Answer 39

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.

Question 40

What is a hostile witness

Answer 40

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.

Question 41

Describe the admissibility rules relating to reliability

Answer 41

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.

Question 42

Under section 125(1) what must you be mindful of with regards to a child complainants and corroboration?

Answer 42

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.

Question 43

What is required in initial disclosure and how many days after the commencement of proceedings should it be made.

Answer 43

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.

Question 44

Who must take an oath or affimation

Answer 44

Any person over the age of 12 unless the judge decides otherwise.

Question 45

What about if under 12 years

Answer 45

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 .

Question 46

Under section 84 of the evidence act how will witnesses be examined ?

Answer 46

(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.

Question 47

What does the judge have to consider in relation to section 9. Admitting evidence when both parties aggree?

Answer 47

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.

Question 48

Outline Section 8 of the Eveidence Act , what does it help a judge do?

Answer 48

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.

Question 49

What is the fundamental condition for admissibility of evidecen

Answer 49

Evidence that is not relevant will not be admissible

Question 50

What is a child complainant

Answer 50

The complainant who is a child under the age of 18 years when the proceeding commences

Question 51

How is a witness under the age of 12 given an oath or affirmation

Answer 51

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.

Question 52

What does Section 107 of the Criminal Procedure Act 2011 allow? ( Defence may call a witness

Answer 52

Immediately after a prosecution witness.

Question 53

What is the four step regime of the Criminal Disclosure Act 2008

Answer 53

Initial disclosure by the prosecution,
Full disclosure by the prosecution
Defence Disclosure
Third party disclosure

Question 54

In relation to the Criminal Disclosure Act 2008 what is the meaning of relevant

Answer 54

Information or an exhibit that tends to support or rebut or has a material bearing on the case against the defendant.

Question 55

What are the two exception to the prohibition on previous consistent statements

Answer 55

To respond to a challenge to the witnesses veracity or accuracy

Question 56

What must the probative value of propensity evidence have?

Answer 56

The probative value must outweigh the risk of an unfairly prejudicial effect

Question 57

What are the two purposes of cross examination

Answer 57

To elicit information supporting the case

To challenge the accuracy of the testimony given in evidence in chief.

Question 58

What factors are present for the duty to cross examine

Answer 58

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.

Question 59

When is an associated defendant compelleable to give evidence for both the crown and the defence

Answer 59

where the associated defendant has been tried separately of where the proceeding against the associated defendant has been determined

Question 60

Is marital privilege allowed

Answer 60

No

Question 61

Must Know- Define Hearsay evidence (s4)

Answer 61

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.

Question 62

Must know - When can hearsay evidence be admissible? Section 18

Answer 62

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.

Question 63

Evidence e offered by the prosecution of the statement made by defendant is not admissible against the defendant if what?

Answer 63

If it is excluded under any of the following rules.

The reliability rule
the oppression rule
the improperly obtained evidence rule

Question 64

Where is the emphasis of any inquiry determining admissibility under the reliability rule

Answer 64

The emphasis is on the circumstances not whether the statement is actually reliable

Question 65

What is the onus of the prosecution once the issue of unreliability has been raised

Answer 65

To prove on the balance of probabilities that the circumstances would not have adversely affected its reliability

Question 66

What is the onus on the judge when an issue of oppression has been raised

Answer 66

The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not adversely affected by oppression

Question 67

What is the meaning or oppression under the evidence act

Answer 67

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.

Question 68

What is the onus on the prosecution once an issue of oppression has been made

Answer 68

To satisfy the judge beyond reasonable doubt that the defendants statement was not influenced by oppression

Question 69

When must a judge exclude improperly obtained evidence

Answer 69

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.

Question 70

Must Know - What is the burden of proof imposed on the prosecution for the admissibility of voice identification evidence

Answer 70

The burden of proof is on the balance of probabilities

Question 71

What is the inherent risk of identification evidence

Answer 71

There is an inherent risk of unreliability

Question 72

What is the special warning a judge needs to provide a jury about identification evidence

Answer 72

mistaken identification can result in a serious miscarriage of justice and mistaken witnesses maybe convincing and more than one identification witnesses may be mistaken.

Question 73

How does the evidence act define opinion

Answer 73

The statement of opinion that tends to prove or disprove a fact

Question 74

What is required for expert opinion evidence to be admissible

Answer 74

It mus offer substantial help to the fact finder and understanding of the evidence or ascertaining any fact in the proceeding

Question 75

What is the overriding duty of an expert witness

Answer 75

To assist the court impartially

Question 76

What defines and expert in the evidence act

Answer 76

A person who has specialised knowledge or skill based on training study or experience

Question 77

If the defendant intends to off expert opinion evidence in a criminal proceeding what is required

Answer 77

Notice of the intention to call expert evidence is required at least 10 working days before the the day of the trail.

Question 78

Tell me about section 9 of the Evidence act ( Support persons)

Answer 78

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.

Question 79

Alternative way of giving evidence, grounds on which a judge may order this

Answer 79

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

Question 80

What are the alternative ways of giving evidence

Answer 80

Video recorded
Behind a screen while in court
From an appropriate place outside the court.

Question 81

Section 72 of the Evidence Act ( Who is unable to give evidence)

Answer 81

Judges, jurors, layers,judges are unable to give evidence. Jurors and lawyers can give evidence if they have permission from the judge.

Question 82

Section 73 of the Evidence Act (who is not compellable to give evidence)

Answer 82

Defendants and associated defendants in criminal proceedings. A defendant is not a compellable witness for either prosecution or defence.

Question 83

Tell me about the types of privilege

Answer 83

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

Question 84

What are the two types of character evidence

Answer 84

Veracity- Disposition from lying

Propensity - tendency to act in a particular way

Question 85

Section 41 of the Evidence Act ( Propensity )

Answer 85

Propensity evidence about defendants may offer good, bad or neutral propensity.

Question 86

Section 42 Evidence Act

Answer 86

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

Question 87

Section 43 Evidence Act

Answer 87

Propensity evidence raised by prosecutions about a defendant

Question 88

What things will be considered when assessing the probative value of propensity evidence

Answer 88

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?

Question 89

Must Know - When is a person unavailable as a witness in a procedding

Answer 89

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

Question 90

Admissible Identification evidence - Section 45 what is the effect

Answer 90

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

Question 91

Must Know - Identification Evidence - Formal procedure key points

Answer 91

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.

Question 92

Must Know- What would be a good reason for not following formal procedure. Note this list is not exhaustive.

Answer 92

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.

Question 93

Section 44 Evidence of sexual experience

Answer 93

Evidence of sexual experience of complainant in sexual case must have permission of the judge before asking these types of questions.

Question 94

The conduct of a trial follows what system

Answer 94

The adversarial system

Question 95

The adversarial system - The key points

Answer 95

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.

Question 96

Full disclosure must be made

Answer 96

As soon as reasonably practicable if the defendant has pleaded not guilty.

Question 97

When must full disclosure be made for a child or young person

Answer 97

before the first appearance in the youth court

Question 98

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

Answer 98

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.

Question 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.

Answer 99

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.

Question 100

Tell me about refreshing memory in court

Answer 100

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.

Question 101

Who is eligible to give evidence

Answer 101

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.

Question 102

Must Know - As far as compel ability goes what is an associated defendant ?

Answer 102

(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.

Question 103

When can a person with a privilege give evidence

Answer 103

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.

Question 104

Must know - Tell me about the focus of the act around formal identification.

Answer 104

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.

Question 105

Must know - What is the general rule around who propensity evidence should be

Answer 105

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

Question 106

Must Know - Under the act hearsay is described as?

Answer 106

“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).

Question 107

Must Know - Tell me about the relationship between relevance and admissibility

Answer 107

Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.

Question 108

Must know - Tell me about the evidential burden on the prosecution Once a defence like self defence is raised by the defence

Answer 108

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.

Question 109

Must know - What does propensity evidence not include?

Answer 109

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

Question 110

Must know - Under section 16(2) When is a person unavailable as a witness?

Answer 110

(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.