8.0 Evidence

Question 1

Describe veracity.

Answer 1

Veracity is the disposition of a person to refrain from lying.

Question 2

Describe propensity.

Answer 2

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

Question 3

What is the “Woolmington Principle?”

Answer 3

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 4

Describe the link between relevance and admissibility?

Answer 4

The fundamental condition for the admissibility of evidence is that it must be
relevant. Evidence that is not relevant will not be admissible.

However; 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 5

Tell me about the burden of proof?

Answer 5

The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

When the Defendant wishes to put up a defense to the charge they must point to some evidence that suggests an explanation. It is known as an ‘evidential burden’ on the on the defense.

The burden of proof remains where that case puts it, with the prosecution.

Once it is made a
“live issue”, it is then up to the prosecution to destroy the defense, as they
retain the burden of proof.

Question 6

What offences does the Woolmington Principle not apply to?

Answer 6

Public welfare regulatory offences.

Question 7

Are there exceptions to the Woolmington principle. What are these?

Answer 7

Yes, the defence of insanity (s 23 Crimes Act 1961) and specific statutory exceptions (e.g. s 180(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, s 45 regarding identification evidence).

Question 8

Define Hearsay evidence.

Answer 8

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.

Question 9

When can hearsay evidence be admissible?

Answer 9

(1) A hearsay statement is admissible in any proceeding if:
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either -
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Section 16(2) defines what is meant by “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.

The most important change to previous law is the addition of s 16(2)(e) (unavailability by reason of non-compellability). Those who cannot be compelled to testify (for example, the Sovereign (s 74) and the defendant in a criminal case) are considered “unavailable as a witness” for the purposes of the hearsay rule.

Question 10

What is voice identification evidence?

Answer 10

evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Question 11

What is the burden of proof imposed on the prosecution for the admissibility of voice identification evidence?

Answer 11

The burden of proof imposed on the prosecution under s 46 is proof of reliability on the balance of probabilities.

Question 12

When is a person unavailable as a witness in a proceeding?

Answer 12

1. When they are dead
2. Outside NZ and it is not reasonably practicable to get them.
3. Unfit to be a witness because of age or physical or mental condition etc.
4. Cannot be found or identified.
5. is not compellable to give evidence.

Question 13

Identification Evidence - formal procedure key points.

Answer 13

(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 14

What would be a good reason for not following procedure.

Note: this list is not exhaustive.

Answer 14

(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 15

As far as compellability goes what is an associated defendant?

Answer 15

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 16

Tell me about the focus of the act around formal identification.

Answer 16

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 17

What is the general rule around propensity evidence.

Answer 17

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.

Question 18

What does propensity evidence not include?

Answer 18

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 19

What is evidence?

Answer 19

“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 20

The rules of evidence fall into three categories, what are these?

Answer 20

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

Question 21

What is admissible evidence?

Answer 21

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

Question 22

What is a fact finder?

Answer 22

A Judge or jury.

Question 23

Describe relevance?

Answer 23

Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”

Question 24

What are ‘facts in issue’?

Answer 24

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 25

Tell me about the weight of evidence.

Answer 25

The “weight” of evidence is its value in relation to the facts in issue. This will depend upon a wide range of actors, such as the
extent to which, if accepted, it
is directly relevant to or conclusive of those facts; the extent to which it is supported or contradicted by other evidence produced; and the veracity of the witness. The “weight” is the degree of probative value that can be accorded to the evidence.

Question 26

Tell me about the probative value.

Answer 26

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 27

Describe prejudicial?

Answer 27

Evidence adverse to a party’s case; the drawing of an inference against a party. However, the exclusion in Section 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 28

What does offer evidence mean?

Answer 28

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.

Question 29

What does ‘give evidence’ mean?

Answer 29

A person recounting facts or opinions in a proceeding

“gives evidence”.

Question 30

How can evidence be given?

Answer 30

1. 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;
2. 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;
3. In any other way provided for by the 2006 Act or any other enactment;
4. 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 31

What is a ‘witness’.

Answer 31

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

Question 32

Describe a ‘child complainant’.

Answer 32

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 33

Describe a ‘child witness’.

Answer 33

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 34

Describe ‘incriminate’.

Answer 34

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 35

Describe ‘statement’.

Answer 35

a statement is a spoken or written assertion by a person, or nonverbal conduct of a person intended by that person as an assertion of any matter.

Question 36

Describe ‘direct evidence’.

Answer 36

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 37

Describe ‘Circumstantial evidence’.

Answer 37

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 38

What are the 6 objectives of the Evidence Act?

Answer 38

(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 39

What are the principles governing the rules of evidence?

Answer 39

The Supreme Court have made it clear that rules of admissibility, including sections 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 40

Tell me about section 7 of the Evidence Act?

Answer 40

(1) 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.

Question 41

Tell me about section 8 of the Evidence Act?

Answer 41

(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 42

Tell me about section 6 of the Evidence Act?

Answer 42

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 43

Who may decide on the probative force evidence is given?

Answer 43

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 44

What standard of proof must the prosecution reach?

Answer 44

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

Question 45

Tell me about ‘beyond reasonable doubt’.

Answer 45

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 46

What standard of proof must the defence reach?

Answer 46

The defence is required to prove a particular element on the balance of probabilities.

Question 47

Tell me about the balance of probabilities.

Answer 47

The balance of probabilities requires you to simply show that it is more probable
than not.

Question 48

Tell me what corroboration evidence means.

Answer 48

Corroboration Evidence is some independent evidence which implicates the defendant in the crime charged.

Question 49

Is corroboration evidence always required?

Answer 49

No, 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.