Chapter 8: Evidence ** Flashcards
Evidence
Basic Terminology
Admissible Evidence?
Evidence that is legally able to be received by a court.
Evidence
Basic Terminology
Fact-finder?
A judge or jury.
Evidence
Basic Terminology
Facts in issue?
The facts that the prosecution have to prove in order to establish the elements of the offence.
Or those that the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.
Evidence
Basic Terminology
Probative value?
How strongly and centrally the evidence assists in proving or disproving issues in a case.
How strong the evidence is and how important it is for the trial.
Evidence
Basic Terminology
Prejudicial?
Evidence that goes against, or draws and inference against, a party’s case.
Unfair prejudice is when, for example, there’s a danger that a jury may give more weight to evidence than it deserves, speculate inappropriately about the meaning or significance of evidence, be misled by the evidence, and/or use the evidence for an illegitimate purpose.
Evidence
Basic Terminology
Child complainant? Child witness?
A complainant who is under 18 years when the proceeding commences.
A witness (not the Defendant) who is under 18 when the proceeding commences.
When charging documents are filed, NOT at the beginning of the trial.
Evidence
Basic Terminology
Statement?
A spoken or written assertion by a person OR non-verbal conduct of a person intended by the person as an assertion of any matter.
Evidence
What are the three rules about evidence that is/isn’t relevant/admissible?
1) All relevant evidence is admissible except evidence that is:
- inadmissible under this Act or any other Act OR
- excluded under this Act or any other Act
2) Evidence that is not relevant is not admissible
3) Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to determination of the proceeding.
Evidence
What is the section 8 test?
The Judge must exclude evidence if it’s probative value is outweighed by the RISK that evidence will:
- be unfairly prejudicial
- needlessly prolong the proceeding
The judge must take into account the Defendant’s right to offer an effective defence.
This section is intended to help the Judge manage the length of the trial and/or ensure fairness.
Section 9
Even if both sides agree to allow evidence, the Judge can decide not to allow it if it breaches s8.
In this case, it may be helpful to have ‘accepted’ evidence e.g. an expert witness that is not in dispute.
Evidence
What is the ‘Woolmington Principle’?
The burden of proof lies clearly with the prosecution in relation to all the elements of the offence.
Evidence
What is the name of the principle regarding the burden of proof?
Woolmington Principle
Evidence
What are some exceptions to the Woolmington Principle?
- When the Defendant wishes to rely on the defence of insanity
- Suicide pact to change murder to manslaughter
The Woolmington Principle states that the burden of proof lies with the prosecution and that everyone is presumed innocent until proved otherwise.
Evidence
What is the standard of proof for the prosecution and defence?
Prosecution = beyond reasonable doubt
Defence = balance of probabilities (more reasonable than not)
Evidence
The court is able to convict/acquit even if there’s only one reliable witness. What are the two offences that one witness is not sufficient?
- Treason
- Perjury related offences
Corroboration is required for these offences.
For all other offences, if there’s only one witness, there is no obligation to warn the jury about the dangers of relying on a single witness.
Evidence
At what age does a witness need to take an oath or affirmation before giving evidence at a trial?
12 years of age or older.
Evidence
If a witness giving evidence at court is under 12 years old, they don’t need to take an oath or affirmation.
What happens instead?
1) They must be informed by the Judge of the importance of telling the truth and not telling lies
2) must, after being given that information, make a promise to tell the truth
Note:
There is no requirement for the judge to determine a child’s understanding of the difference between truth an lies or of the importance of telling the truth.
Evidence
What is the rule for a witness refreshing their memory while giving testimony in court?
A witness is able to consult a document while giving evidence if:
- the judge allows it
- the document is shown to every other party in the proceeding
- the document was ‘made or adopted’ by the witness ‘at a time when his/her memory was fresh’
How fresh? One piece of case law allows the document to be made up to 6 weeks after the incident.
- the document must have been made by that witness or by someone acting on their behalf, in their presence and approved by the witness.
The document being used doesn’t get added to the evidence. The witnesses testimony is still treated as an oral testimony.
Evidence
What is the rule for a witness refreshing their memory before a trial / outside of court?
Witnesses (this whole thing includes Police officers) are able to read statements or briefs before court. These documents could have been made by that witness of by someone else. The requirement is that the document relates to things that the witness already knows about. You cant just lay out the whole case to them and tell them details that they didn’t witness.
The courts have made it clear that the defence should be advised if this has happened and, if requested, a copy of the statements should be made available to them.
Evidence
What is a hostile witness and who decides to classify a witness as hostile?
The judge decides.
A hostile witness is a witness who:
- shows a lack of veracity when giving evidence to the party who called them about information that they’re supposed to know
- gives evidence that is inconsistent with their previous statements
- refuses to answer questions or withholds evidence
The witness has to have an actual or apparent intention to be unhelpful to the party that is calling them.
The Supreme Court note that even a ‘stark’ difference between their testimony and previous witnesses isn’t sufficient to classify them as hostile.
Evidence
What are the four steps/stages of pre-trail disclosure?
1) initial disclosure by the prosecution
2) full disclosure
3) defence disclosure
4) third party disclosure
Evidence
What documents are required for initial disclosure?
- SOF
- Charging document
- Defendant’s right to apply for further information before entering a plea (summary)
- Maximum and/or minimum penalty for offence
- List of known previous offences
- List of previous offences proven while Defendant was a youth
Evidence
During initial disclosure, the Defence can request lots of different documents/evidence which isn’t required.
The Prosecutor can refuse to give this disclosure. Why would they do that and what does the Prosecutor have to do?
They have to make a list of all the stuff that they don’t want to disclose, together with the reason and (if requested) the grounds in support of that reason unless given the grounds would prejudice the interests protected by section 16, 17 and 18 AND there is no overriding public interest.
Section 16, 17 and 18 deal with hearsay evidence.
Evidence
When does the prosecution need to provide full disclosure?
As soon as practicable after a Defendant has:
- pleaded not guilty
- When a Youth Defendant makes a first appearance in a Youth Court
Full disclosure means all relevant information. 'standard information' includes: - statements - evidence briefs of witnesses - names and statements/records of interview with those who the prosecution wont be calling - expert witnesses - convictions of prosecution witnesses - list of exhibits
Must also give a list of relevant information that isn’t disclosed and the reason for the refusal.
Evidence
After full disclosure is made, does the prosecutor have to allow the defence to inspect any exhibits?
Yes, if that exhibit is listed in disclosure.
The inspection is subject to any conditions that the prosecutor deems necessary for the purpose of:
- ensuring the security and integrity of the evidence
- maintaining is evidential value
- ensuring that the exhibit can be used for law enforcement purposes.
Evidence
There are a bunch of reasons why a prosecutor can withhold disclosure.
At what stages of the court/disclosure process can disclosure be withheld?
Also, read this list of reason why.
Disclosure can be withheld at all stages if:
- the prosecutor doesn’t have the information in record form
- likely to prejudice the maintenance of the law
- likely to endanger the safety of any person
- material to assist in the conduct of the trial
- communications between the prosecutor and associates about how the trial will run
- material subject to any non-disclosure powers
- likely to prejudice the security or defence of New Zealand
- likely to facilitate the commission of an offence
- would likely constitute contempt of court of parliament
- if the information is publicly available or has already been made available to the defendant
- there’s a few more but they’re so obscure that i can’t be bothered writing them
Evidence
A violent offender has requested full disclosure which would include the names of witnesses who have identified the defendant, does the prosecutor need to disclose this?
No.
If disclosure is likely to endanger any person then the prosecutor can withhold that information.
