Bully

Question 1

What did the case of Woolminton v DPP establish in relation to the presumption of innocence?

Answer 1

The fundamental principle in criminal law is the presumption of innocence, known as the Woolmington principle. 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 2

Define a hostile witness pursuant to S4 of the Evidence Act 2006?

Answer 2

Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness or on a matter about which 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 questions or deliberately withholds evidence

Question 3

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

Answer 3

Reliability
Relevance
Unfairness
Public Interest

Question 4

What is a leading question?

What is the general rule in relation to leading questions?

Answer 4

A leading question is one that directly or indirectly suggests a particular answer to the question.

The general rule is that leading questions may not be asked during examination in chief or re-examination.

Question 5

Explain a chambers hearing s15?

Answer 5

A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

It is conducted without a jury present.

Question 6

Define the following terms:
Witness
Facts in issue

Answer 6

A witness is a person who gives evidence and is able to be cross-examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence, and may also include a person who has previously given evidence in a proceeding

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 7

Explain what is meant by the burden of proof?

Answer 7

Whoever asserts something must prove it

In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused is guilty rather than the accused having to prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt

In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt

Question 8

What does propensity evidence mean?

Answer 8

Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 9

List four categories of privilige?

Answer 9

Privilege against self-incrimination
communications with legal advisors
Communications with ministers of religion
Informer privilege

Question 10

What is the definition of a hearsay statement?

Answer 10

A statement that -

(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents

Question 11

The fundamental principle in criminal law if the presumption of innocence and that the burden of proof lies with the prosecution. What are the three exceptions to this rule?

Answer 11

There are exceptions to the general rule, which means that in some cases the burden of proof reverses and falls on the defendant:
Where the defence of insanity is claimed
Where specific statutory exceptions exist
Where the offence is a public welfare regulatory offence

Question 12

The fundamental condition for the admissibility of evidence is that it must be relevant. What is the two prong test of relevance? Describe each

Answer 12

Materiality asks whether the evidence is offered on a matter of fact at issue on the case

Probativeness asks whether the evidence has a logical tendency to prove or disprove the material proposition on which it is offered

Question 13

s37 of the EA 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters

Answer 13

Lack of veracity on the part of the person when under a legal obligation to tell the truth

That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity

Bias on the part of the person

A motive on the part of the person to be untruthful

Question 14

Define the following terms

(a) circumstantial evidence

(b) statement

Answer 14

A fact that by inference can prove another fact in issue

A statement is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter

Question 15

What are presumptions of law?

What are presumptions of fact?

Answer 15

Presumptions of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable.

Presumptions of fact are those that the mind naturally and logically draw from the facts given. They are always rebuttable.

Question 16

S18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. According to s16(1) of the EA 2006, circumstances in relation to a statement by a person who is not a witness, include…

Answer 16

The nature of the statement; and
The contents of the statement; and
The circumstances that relate to the making of the statement; and
Any circumstances that relate to the veracity of the person; and
Any circumstances that relate to the accuracy of the observation of the person

Question 17

What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by s 24 & 25 of the EA 2006?

Answer 17

Where a witness offers a bare opinion it offers little probative weight

There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be the evidence would confuse the tribunal of fact and prolong proceedings.

A witness’s evidence of opinion may be based on other evidence, which if stated expressly, would be inadmissible

Question 18

Describe what privilege is in relation to the giving of evidence?

Answer 18

A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent the disclosure of what would otherwise be admissible

Question 19

The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination. What are the three reasons why leading questions are not generally permitted?

Answer 19

There is a natural tendency to agree with suggestions put to them by saying ‘yes’ even if those suggestions do not precisely accord with their own view of what happened.

Counsel asking leading questions of their own witnesses can more easily elicit the answers they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.

There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

Question 20

List four of the functions of the judge in a trial by jury?

Answer 20

To decide all questions concerning the admissibility of evidence

To determine whether there is any evidence that is fit to be submitted to the jury for its consideration

To explain and enforce the general principles of law that are applicable to the point at issue

To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 21

In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?

Answer 21

Where the maker of the statement is not called as a witness there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.

The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement in question.

There is a danger that witnesses will make mistakes about the meaning or contents of statements made by other people.

The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be reasonable assurance of reliability.

Question 22

Give two exceptions to the general rule concerning leading questions?

Answer 22

Introductory or undisputed facts
Identification
Assisting memory
Contradiction
Hostile witnesses

Question 23

Define the following terms:

(a) direct evidence

(b) admissible evidence

Answer 23

Direct evidence is any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced

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

Question 24

When is a witness deemed to be unavailable as a witness according to S16(2) EA 2006?

Answer 24

Is dead, or
Outside NZ and is not reasonably practicable for him/her to be a witness, or
Is unfit to be a witness because of age or physical or mental condition, or
Cannot with reasonable diligence be identified or found, or
Is not compellable to give evidence

Question 25

S92(1) EA 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?

Answer 25

When the following four conditions are present:
The topic of cross-examination must deal with significant matters in the proceeding

The matters must be relevant and in issue in the proceeding

The matters must contradict the evidence of the witness, and

The witness may reasonably be expected to be in a position to give admissible evidence on those matters

Question 26

What are the two exceptions to the general prohibition on previous consistent statements?

Answer 26

A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary:

To respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or
On a claim of recent invention on the part of the witness

Question 27

There are offences in which the unsupported evidence of one witness is insufficient to support a conviction. In there instances, corroboration is required as a matter of law.

Name these types of offences?

Answer 27

Perjury
False oaths
Treason
False statements or declarations

Question 28

In relation to non-expert opinion, in order to be admissible under s24, the statement of opinion must fulfill two basic criteria. Name them…

Answer 28

Opinion must be the only way to effectively communicate the information to the finder of fact

The witness must be stating an opinion from something personally perceived

Question 29

Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings?

Answer 29

The veracity and propensity rule do not apply except when:

The evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant

The evidence relates directly por indirectly to his or her reputation in sexual matters

Question 30

What are two types of questions that can be asked once a witness has been declared hostile?

Answer 30

When a witness has been declared hostile, the prosecutor may conduct the examination in chief like a cross examination. The witness may be:

Asked leading questions
Challenged with regard to how they know the facts about which they are testifying
Tested on matters as to their accuracy or memory and perception