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 proceeding.

Question 5

Define prejudicial.

Answer 5

Evidence adverse to a party’s case.

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?

Answer 7

Under 18 years when the proceeding commences (when the charging document is filed).

Question 8

What is 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

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

Sec 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

What is the Sec 8 test?

Answer 16

The sec 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 the risks.

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 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

Name 8 grounds under Sec 103 as to reasons why evidence can be given in an alternative way.

Answer 25

• The age or maturity of the witness
• The physical, intellectual, psychological or psychiatric impairment of the witness
• Trauma suffered
• Fear of intimidation
• Linguistic or cultural background or religious beliefs
• Nature of the proceeding
• Nature of the evidence the witness will give
• Absence or likely absence of the witness from NZ

Question 26

What are the alternate ways of giving evidence?

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

Sec 73 - Compellability of co-defendants. Sec 73 provides that….

Answer 28

1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.
2) 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.

e.g he or she can give evidence but doesn’t have to.

Question 30

What is an associated defendant?

Answer 30

A person whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried.

The provisions are intended to encompass not only actual co-defendants, but also persons linked to the offending.

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 must the judge take into account when assessing the probative value of evidence in regards to propensity?

Answer 32

• The frequency of the acts
• How closely in time the acts are committed to the current offending
• Similarity between the previous acts and those currently alleged
• The number of people making the allegations against the defendant
• Do the acts share similar unusual features

Question 33

Sec 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?

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?

Answer 35

If the witness is dead or outside NZ and it is not reasonably practicable for him or her to be a witness.

If the witness is unfit due to age or physical/mental condition.

If the witness cannot be found or

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

List some reasons for not following a formal procedure…

Answer 38

• Refusal to participate
• Singular in appearance
• Change of appearance
• No anticipation that identity would be an issue
• Identification made shortly after the offence
• Chance meeting

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

Admissibility of voice evidence…

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

S7 - Relevance

Answer 43

7 Fundamental principle that relevant evidence admissible

(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 44

Disclosure

Answer 44

Under s 13 Criminal Disclosure Act 2008, full disclosure by the prosecution must be made as soon as reasonably practicable after a defendant has

• pleaded not guilty
• when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court.

Question 45

Privilege and confidentiality

Several privileges are outlined in the Evidence Act 2006:

Answer 45

• privilege for communications with legal advisors – section 54
• privilege and solicitors’ trust accounts – section 55
• privilege for preparatory materials for proceedings – section 56
• privilege for settlement negotiations, mediation or plea discussions – section 57
• privilege for communications with ministers of religion – section 58
• privilege for information obtained by medical practitioners and clinical psychologists – section 59
• privilege against self-incrimination – section 60
• informer privilege – section 64