8.1 Evidence Flashcards
What is evidence?
The whole body of material which a court may take into account in reaching their decision.
Evidence may be written, oral or visual.
What is an associated defendant?
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.
What is the prosecutions burden of proof?
Beyond reasonable doubt.
Admissibility of voice evidence…
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.
What is the age of a child complainant?
Under 18 years when the proceeding commences (when the charging document is filed).
What is circumstantial evidence?
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).
What are the circumstances relating to a hearsay statement that provide reasonable assurance that the statement is reliable?
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
What is admissible evidence?
Evidence is admissible if it is legally able to be received by the court.
What is direct evidence?
Evidence a witness has seen, heard or otherwise experienced (eye witness).
What is a hostile witness?
- 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.
When will propensity evidence evidence about a defendant be admissible?
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.
What is the Sec 8 test?
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.
What would be deemed unavailable as a witness or undue expense and delay?
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
If a judge decides that evidence is relevant…
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.
Define reasonable doubt…
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.
What is voice identification evidence?
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.
Sec 73 - Compellability of co-defendants. Sec 73 provides that….
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
When is Visual Identification Evidence admissible?
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.
What is the ‘Woolmington Principle’?
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.
Sec 18 - When is a hearsay statement admissible?
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)
List some reasons for not following a formal procedure in regards to Identification of Suspects
- 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
What are the alternate ways of giving evidence?
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
Define veracity.
The disposition of a person to refrain from lying.
What is the basic rule in regards to the non-compellability of a defendant?
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.
