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 an associated defendant?

Answer 2

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 3

What is the prosecutions burden of proof?

Answer 3

Beyond reasonable doubt.

Question 4

Admissibility of voice evidence…

Answer 4

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 5

What is the age of a child complainant?

Answer 5

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

Question 6

What is circumstantial evidence?

Answer 6

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 7

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

Answer 7

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 8

What is admissible evidence?

Answer 8

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

Question 9

What is direct evidence?

Answer 9

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

Question 10

What is a hostile witness?

Answer 10

• 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 11

When will propensity evidence evidence about a defendant be admissible?

Answer 11

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 12

What is the Sec 8 test?

Answer 12

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 13

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

Answer 13

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 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

Define reasonable doubt…

Answer 15

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 16

What is voice identification evidence?

Answer 16

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 17

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

Answer 17

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 18

When is Visual Identification Evidence admissible?

Answer 18

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 19

What is the ‘Woolmington Principle’?

Answer 19

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 20

Sec 18 - When is a hearsay statement admissible?

Answer 20

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 21

List some reasons for not following a formal procedure in regards to Identification of Suspects

Answer 21

• 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 22

What are the alternate ways of giving evidence?

Answer 22

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 23

Define veracity.

Answer 23

The disposition of a person to refrain from lying.

Question 24

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

Answer 24

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 25

What is a hearsay statement?

Answer 25

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 26

What is a witness?

Answer 26

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

Question 27

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

Answer 27

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 28

Define probative value of evidence..

Answer 28

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 29

Sec 8 - Define relevant evidence…

Answer 29

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 30

What is a statement?

Answer 30

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

Question 31

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

Answer 31

Seek the leave of the judge to grant the request

Question 32

Burden for defence is….

Answer 32

On the balance of probabilities.

e.g more probable than not.

Question 33

Define propensity.

Answer 33

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

Question 34

Sec 8 - In a proceeding, a judge must exclude evidence if…. (Defense and Prosecution have agreed that evidence is admissible)

Answer 34

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 35

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

Answer 35

• 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 36

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

Answer 36

• 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 37

Define prejudicial.

Answer 37

Evidence adverse to a party’s case.

Question 38

What is eligibility and compellability in terms of witnesses?

Answer 38

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 39

What is relevant evidence?

Answer 39

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

Question 40

Define visual identification evidence…

Answer 40

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 41

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

Answer 41

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 42

Who is the fact finder?

Answer 42

Judge or jury.