8.1 Evidence

Question 1

What is evidence?

Answer 1

The whole body of material which a court may take into account in reaching their decision. Evidence may be written, oral or visual

Question 2

What is admissible evidence?

Answer 2

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

Question 3

Who is the fact-finder?

Answer 3

Judge or jury.

Question 4

What is relevant evidence?

Answer 4

Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (section 7(3) Evidence Act 2006).

The threshold for relevance is actually very low. Evidence must simply have some probative value.

Question 5

What does prejudicial mean in the context of evidence?

Answer 5

It refers to evidence adverse to a party’s case; the drawing of an inference against a party.

Evidence is only excluded by a judge when it is deemed to be unfairly prejudicial such as when the jury may be misled by the evidence or attribute to it too much weight.

Question 6

What is a witness?

Answer 6

A person who gives evidence and is able to be cross examined.

Question 7

What is the age of a child complainant according the the Evidence Act 2006?

Answer 7

Under 18 years when the proceeding commences (when the charging document is filed NOT at the beginning of the trial).

Question 8

Concept - What is the definition of a statement?

Answer 8

A spoken or written assertion or non verbal conduct intended by that person as an assertion of any matter.

Question 9

What is a hearsay statement?

Answer 9

A statement made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of it’s contents.

Question 10

Define veracity.

Answer 10

The disposition of a person to refrain from lying.

Question 11

Define propensity.

Answer 11

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

Question 12

What is direct evidence?

Answer 12

Evidence a witness has seen, heard or otherwise experienced (eye witness).

Question 13

What is circumstantial evidence?

Answer 13

Evidence of circumstances that do not directly prove any facts in issue, but which allow inferences about the existence of those facts to be drawn (eg the defendant was seen in the vicinity of a crime).

Question 14

Section 7 - If a judge decides that evidence is relevant…

Answer 14

Then subject to any other legal rules, the party will be entitled to present the evidence. Relevance is a necessary but not a sufficient condition of admissibility under the act.

Question 15

Section 8 - In a proceeding, a judge must exclude evidence if….

Answer 15

Its probative value is outweighed by the risk that the evidence will

a) have an unfairly prejudicial effect on the proceeding or
b) needlessly prolongs the proceeding

Question 16

Concept - Explain the section 8 test under the Evidence Act 2006.

Answer 16

The section 8 test involves balancing the probative value of evidence against the risk that it will have an “unfairly prejudicial effect on the proceeding” or “needlessly prolong the proceeding.”

Evidence will be admitted if its probative value outweighs this risk.

Question 17

What is the ‘Woolmington Principle’?

Answer 17

The fundamental principle in criminal law is the presumption of innocence.

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

Question 18

What is the prosecutions burden of proof?

Answer 18

Beyond reasonable doubt.

Question 19

Define reasonable doubt…

Answer 19

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.

Question 20

Burden for defence is….

Answer 20

On the balance of probabilities.

e.g more probable than not.

Question 21

What age does a person have to be to take an oath or affirmation before giving evidence?

Answer 21

12 years or older.

Witnesses who are under the age of 12 must be informed of the importance of telling the truth and promise to tell the truth.

Question 22

What is a hostile witness?

Answer 22

• A witness who exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a topic that the witness may reasonably be supposed to have knowledge or
• Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits or appears to exhibit an intention to be unhelpful to the party who called the witness or
• Refuses to answer question or deliberately withholds evidence.

Question 23

Sec 8 - Define relevant evidence…

Answer 23

In relation to any information or 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 24

At any point when a person has been charged, if they request information about an identification witness, what three things must the prosecutor supply?

Answer 24

1. The name of the witness (and address if permitted under Sec17) whether or not the prosecutor intends on calling the witness
2. A statement of any description of the offender given by each witness to the prosecutor or Police and
   3) A copy of an identikit picture or other drawing.

Question 25

A judge may direct that a witness is to give evidence in chief and be cross-examined in an alternative way. What type of witness does this apply to?

Answer 25

All witnesses, including the defendant.

Question 26

What are the alternate ways of giving evidence (3)?

Answer 26

1) In the courtroom but unable to see the defendant (behind a screen)
2) From an appropriate place outside the courtroom either NZ or elsewhere (AVL audio visual link)
3) By a video record made before the hearing of the proceeding

Question 27

What is eligibility and compellability in terms of witnesses?

Answer 27

As a general rule, all persons are eligible to give evidence whether for the prosecution or defence. And all persons who are eligible are compellable to give evidence (they can be required to testify against their will).

Question 28

When would an associated defendant be compellable to give evidence for or against a defendant (2)?

Answer 28

An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless

a) The defendant is being tried separately or
b) The proceeding against the associated defendant has been determined

A proceeding has been determined if:

• The charge is withdrawn or dismissed
• The defendant was acquitted
• The defendant either pleaded guilty or was found guilty and had been sentenced or otherwise dealt with

Question 29

What is the basic rule in regards to the non-compellability of a defendant?

Answer 29

A defendant is an eligible but not compellable witness for either the prosecution or defence.

Question 30

What is an associated defendant?

Answer 30

A person against whom prosecution has been instituted for

1) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted
2) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted

A person charged with burglary, both an accomplice who committed the burglary and the person who received the stolen goods would be an associated defendant under Sec 73.

Question 31

When will propensity evidence evidence about a defendant be admissible?

Answer 31

It will be admissible where the evidence has a probative value in relation to an issue in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 32

What is the general rule about propensity evidence?

Answer 32

The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions.

Question 33

Section 18 - When is a hearsay statement admissible?

Answer 33

If the circumstances relating to the statement provide reasonable assurance that the statement is reliable and

• The maker of the statement is unavailable as a witness or
• The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

(reliability and unavailability or undue expense or delay)

Question 34

What are the circumstances relating to a hearsay statement that provide reasonable assurance that the statement is reliable (5)?

Answer 34

a) The nature of the statement and
b) The content of the statement and
c) The circumstances that relate to the making of the statement and
d) Any circumstances that related to the veracity of the person
e) Any circumstances that relate to the accuracy of the observation of the person

Question 35

What would be deemed unavailable as a witness or undue expense and delay (5)?

Answer 35

1) If the witness is dead
2) If the witness is outside NZ and it is not reasonably practicable for him or her to be a witness.
3) If the witness is unfit due to age or physical/mental condition.
4) If the witness cannot be found.
5) If the witness is not compellable to give evidence.

Question 36

Define visual identification evidence…

Answer 36

An assertion by a person, based wholly or partly on what that person saw to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about the time the act was done or

An account (whether or in writing) of an assertion of the kind described above.

Question 37

When is Visual Identification Evidence admissible?

Answer 37

If formal procedure is followed (eg photo board procedure) by an enforcement officer or there is good reason for it not to be followed in regards to a person alleged to have committed an offence, that evidence is admissible unless the defendant proves on the balance of probabilities that it is unreliable.

Question 38

BLANK

Answer 38

BLANK

Question 39

What is voice identification evidence?

Answer 39

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

Question 40

Is voice identification evidence admissible?

Answer 40

Voice Identification evidence is inadmissible unless the prosecution proves on the

BALANCE OF PROBABILITIES

that the circumstances in which the identification was made have produced a reliable identification.

Question 41

Define probative value of evidence..

Answer 41

How strongly the evidence points to the inference it is said to support and how important the evidence is to the issues in trial will determine the level of probative value that the evidence will hold.

In this sense, the probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case

Question 42

When a witness needs to refresh their memory from a statement they have made, what must the prosecutor do?

Answer 42

Seek the leave of the judge to grant the request

Question 43

What is an exception to the ‘Woolmington Principle’?

Answer 43

Where the legal burden is unequivocally place on the Defendant e.g when they wish to rely on the defence of insanity (s23 Crimes Act 1961) and where there exists specific statutory exceptions

Question 44

What are the facts in issue?

Answer 44

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 45

Concept- What is a proceeding?

Answer 45

A proceeding conducted by a court, and any interlocutory or other application to a court connected with a proceeding.

Question 46

Concept - What is the “weight” of evidence?

Answer 46

The “weight” of evidence is its value in relation to the facts in issue. This will depend upon a wide range of factors, 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 47

Concept - What is probative value?

Answer 47

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, the probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case.

Question 48

Section 73 of the Evidence Act 2006 concerns the compellability of defendants and associated defendants in criminal proceedings. Is a defendant compellable for the prosecution or defence?

Answer 48

No. A defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.

Question 49

Section 73 of the Evidence Act 2006 concerns the compellability of defendants and associated defendants in criminal proceedings. Are defendants eligible witnesses?

Answer 49

Yes. They are eligible but not compellable. A defendant can give evidence but they do not have to.

Question 50

When is an assoicated defendant a compellable witness (2)?

Answer 50

1) When the assoicated defendant is being tried separately from the defendant
2) The proceeding against the defendant has been determined

Question 51

According to section 74 of the Evidence Act 2006, who else is not a compellable witness?

Answer 51

The judge (along with the Sovereign, Governor-General, and Sovereign or head of State of a foreign country).

Question 52

According to section 75 of the Evidence Act 2006, when would a bank officer not be compellable to produce banking records?

Answer 52

When the bank is not party to the proceeding and the contents of the bank records can be proven under the “business records” exception to the hearsay rule (s19). They are also not compellable to appear as a witness to prove the matters recorded in the bank records.

Question 53

What is the difference between offering evidence and giving evidence?

Answer 53

It is a party that offers evidence whereas it is an individual who gives evidence.

Question 54

Can the Evidence Act 2006 be overridden by common law decisions?

Answer 54

No. Common law cases can be used to help decide which evidence might be admitted, but only in so far as they are consistent with the provisions of the Act and the promotion of its purposes and principles. The common law cannot override explicit exclusionary wording in the Act itself.

Question 55

How does section 9 of the Evidence Act allow for admission of evidence that would not usually be allowed?

Answer 55

Where the parties agree that evidence can be admitted, the judge may permit that evidence to be admitted in situations where it would usually be excluded.

Question 56

How does section 9 of the Evidence Act 2006 create a situation where facts need not be proven?

Answer 56

Section 9 allows 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 57

What is the evidential burden?

Answer 57

In cases where the defendant wishes to present a defence, rather than simply stating they didn’t do it, they accept an evidential burden for proving the defence. Once the defence is made a live issue, it is then up to the prosecution to destroy the defence, as they retain the burden of proof.

Question 58

Name an example of an exception to the Woolmington principle in which the legal burden is unequivocally placed on the defendant.

Answer 58

Where the defendant wishes to rely on the defence of insanity.

Question 59

Name the type of offences where the Woolmington principles are seen simply to not apply?

Answer 59

Public welfare regulatory offences. In these cases, the courts have developed a no-fault defence, with the burden of proof on the defendant.

Question 60

In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. In contrast, to what extent must it be discharged by the defence?

Answer 60

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

Question 61

What is meant by beyond reasonable doubt?

Answer 61

As per the instructions given to a jury by the judge “Crown will have met only, if at the end of the case, you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty.”

Question 62

What is a reasonable doubt?

Answer 62

A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilty of the accused after you have given careful and impartial consideration to all of the evidence.

Question 63

How is the balance of probabilities defined?

Answer 63

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply that it is more probably than not.

Question 64

How much corroboration is required to support a witness statement?

Answer 64

In general, one witnesses’ testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provide 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 65

What two offences require, as a matter of law, corroboration (which is some independent evidence which implicates the defendant in the crime charged)?

Answer 65

Perjury and related offences and treason. One witness statement is insufficient.

Question 66

In the case of a jury trial, what may the judge do if they are of the opinion that uncorroborated evidence may be unreliable?

Answer 66

The judge may choose to warn the jury under section 122 about whether to accept the evidence and the amount of weight given to the evidence. This also applies to hearsay evidence under 122(2).

Question 67

In what cases is a corroboration warning prohibited under section 125(1) of the Evidence Act 2006?

Answer 67

This applies in cases involving child complainants where the warning would not have been given had the complainant been an adult. (Sexual assault example).

Question 68

Typically, the prosecution calls their witnesses before the defence. However, section 107 of the Criminal Procedure Act 2011 allows the defence to seek leave to call a witness after a prosecution witness. Why is this?

Answer 68

This provision is designed to assist the jury in building up a “story” about what happened and how the evidence fits together.

Question 69

If a witness wishes to consult a document whilst giving evidence, there are four conditions imposed to ensure so far as possible the accuracy of the document. What are these?

Answer 69

1) The leave of the judge must be obtained
2) The document must be shown to every other party in the proceeding
3) The document must have been “made or adapted” by a witness “at time when this or her memory was fresh” (could be up to six weeks depending on the circumstances
4) The document must have been made by the witnesses, or by another person acting on the witness’s behalf

Question 70

What type of evidence is presented when a witness refers to a document to refresh memory?

Answer 70

Because the courts are acting on the fiction that the document is merely reviving the witness’s own memory, the evidence remains oral testimony.

Question 71

How are witnesses permitted to refresh their memory outside of court (2 examples)?

Answer 71

1) Referring to briefs of evidence prepared on the basis of statements
2) By checking their recollection of events with the officer who interviewed them (a good habit to build with witnesses)

Question 72

What should happen if a prosecution witness has refreshed his or her memory prior to trial from a written statement (2)?

Answer 72

1) The defence should be advised of this and

2) if requested, a copy of the statement should be made available

Question 73

Witnesses are free to use whatever means they choose to refresh their memories prior to trial. What effect might the means have, however?

Answer 73

It may affect the weight that is given to their evidence.

Question 74

If an application is granted to treat a witness as hostile, how may the manner of the questions subsequently be asked?

Answer 74

The witness may be asked questions in the manner of cross-examination to the extent that the judge considers it necessary for the purposes of doing justice. This may include leading questions, questions designed to probe the accuracy of memory and perception, questions as to prior inconsistent statements, and other challenges to veracity.

Question 75

Witness hostility is not demonstrated by the mere fact that the witness has given evidence that is inconsistent with another statement he or she has made previously. What else is required?

Answer 75

There must be some additional indications to demonstrate that the witness may not wish to tell the truth, deliberately withhold evidence etc., such as demeanour, behaviour, or any other relevant issues.

Question 76

When must full disclosure be made by the prosecution (2 instances)?

Answer 76

As soon as reasonably practicable after a defendant has pleaded not guilty OR the first appearance of a child or young person.

Question 77

What must also be included to constitute full disclosure?

Answer 77

A list of relevant information that is not disclosed and the reason for the refusal.

Question 78

What should be considered by prosecutors when trying to decide what should be disclosed to defence?

Answer 78

They should consider whether the information or exhibit:

1) will help or hinder the defendant’s ability to defend the charges
2) would or might detract from the prosecution case, or assist the defence, or incriminate another person

Question 79

What must police retain material or information on during the course of disclosure (3)?

Answer 79

That which

1) points towards a fact or an individual,
2) casts doubt on the suspect’s guilt, or
3) implicates another person.

Question 80

The prosecutor must allow inspection of exhibits when requested by the defence after full disclosure occurs. What conditions is this inspection subject to (2)?

Answer 80

Any conditions that the prosecutor consider necessary for the purpose of:

1) ensuring the security and integrity of the exhibit or otherwise maintaining its evidential value; and
2) in the case of an exhibit needed for use on an on-going basis for law enforcement purposes, ensuring that the exhibit can continue to be used as such.

Question 81

Besides the provisions of section 15-18 of the Evidence Act 2006, generally speaking, under what two circumstances can information be withheld following a request by the defence?

Answer 81

Those requests which appear frivolous or vexatious. Requests must be for particular information, not a general request.

Question 82

During a prosecution, what should happen with information which has been previously withheld (2)?

Answer 82

1) It should be regularly reviewed to determine whether circumstances have changed
2) If a change in circumstances means that the information should now be disclosed, that should be done as soon as is practicable

Question 83

When do obligations under the Criminal Disclosure Act begin and end?

Answer 83

They begin with the commencement of proceedings and continue for as long as information related to the proceedings is held.

Question 84

When should initial disclosure take place?

Answer 84

Generally not later than 15 days after commencement of proceedings.