8. Evidence of Law and Burden of Proof must know Flashcards
Must Know - Describe Veracity
veracity is the disposition of a person to refrain from lying
Must know - Describe Propensity
propensity is a person’s tendency to act in a particular way or have a particular state of mind.
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
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.
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?”
What offences does the Woolmington principle not apply to ?
these are known as public welfare regulatory offences.
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.
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.
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
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
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.
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.
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.
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.
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
