Chapter 8 Evidence Flashcards
The rules of evidence fall into what 3 main categories.
● how evidence may be given
● who may give evidence
● what type of evidence may be given
What is the definition of admissible evidence
Evidence that is legally able to be received by the court
What is the definition of relevance
the tendency to prove or disprove anything that is of consequence
What is the definition of facts in issue
those that prosecution must prove to establish elements of offence, or those defence must prove to succeed
What is the definition of weight of evidence
degree of probative value that can be accorded
Define probative value
how strongly evidence assists in proving or disproving a matter
Define prejudicial
evidence which is adverse to a party’s case
Define child complainant
under 18 years of age at time proceedings commenced
Define child witness
witness who is a child when proceedings commence & a child complainant but not a defendant who is a child
What is a hearsay statement
a statement made by a person, other than a witness that is offered in evidence.
Define veracity
the likelihood of a person not to lie
Define propensity
a persons tendency to act and think a certain way
What is the purpose and what are the 6 objectives of the Act as defined in S.6
P - help secure the just determination of proceedings
● provide for facts to be established by logical rules
● provide rules in line with NZBORA
● promote fairness
● protect confidentially & public interest
● avoid unjustified expense
● enhance access to law of evidence
What is the fundamental principle for the admissibility of evidence
● evidence that is not relevant will not be admissible
● if Judge decides that evidence is relevant (subject to any other rules) a party will be entitled to present evidence about it.
Describe the S.8 test which balances the probative value of evidence against a risk that it might have an unfair effect
● evidence will be admitted if its probative value outweighs any risk of any unfairly prejudicial effect on the proceeding - or is strong enough to support prolonging of the proceeding.
● S.8 allows exclusion of evidence which would be unfair by distracting the judge from the real issues of the trial
● any assessment must also take into account the defendants right to offer effective evidence &right of fair trial
Outline S.9 - Admission by agreement
allows for admission of evidence where both parties agree. Useful for expert evidence when not in dispute
Describe the Woolmington principle - Burden of Proof
Burden of proof lies with the prosecution
What is the evidential burden on the defence
● evidence that suggests a reasonable doubt about the conclusions one would otherwise draw from prosecution case.
● evidence that suggests an explanation - e.g self defence
What are some exceptions to the Woolmington Principle
● defence of insanity
● person involved in suicide pact
What is the standard of proof for the prosecution
beyond reasonable doubt
In R v Wanhalla - what did the Court of Appeal say about reasonable doubt to assist jurors
beyond reasonable doubt is a high standard of proof which is only met if you are sure accused is guilty.
It is more than a persuasion that a person is probable guilty or very likely guilty
What is the burden of proof for the defence
on the balance of probabilities
must be more probable than not
Outline S.121 Corroboration
It is not necessary for evidence (depends of relevance & reliability) to be corroborated except for perjury, false oath/statements or treason
What is the general rule for witness oath/affirmation
● over 12 yrs say oath or affirmation
● under 12 yrs must be informed to tell truth and not lie
● S.77 allows evidence without if judge agrees e.g person with intellectual disability
What is the general sequence for jury trials
● opening remarks from judge ● crown opening address ● crown case presented ● defence opens case ● defence calls evidence ● crown closing address ● defence closing address ● Judge sums up ● Jury retires for verdict
What are the conditions that must be satisfied before a witness can refresh memory in court
● obtain leave of judge
● all parties shown document
● document must have been made or adopted by witness
● made when memory fresh
● document must have been made by witness or person on witness behalf
What does Cameron v R say about when memory was fresh
● significance of event
● time that’s lapsed
● detail/lucidity of recollection
Under S.90(7) Evidence Act 2006 when is a witness previous statement admissible
● when consistent with witness evidence
● circumstances relative to statement provides assurance that statement is reliable
● statement provides court with info witness is unable to recall
What is the general understanding of refreshment of memory out of court
● when a prosecution witness has refreshed memory prior to trial from a written statement, the defence should be advised and if requested a copy made available.
● In R v Jennings this was extended to include Police refreshing from notebook
What is the principle of refreshing memory under R v Foreman
● witness free to use any means to refresh memory
● the means used can affect the weight given to evidence
● defence able to question the means that were undertaken
● obligation on witness to produce document to opposing counsel
What is the definition of hostile witness
● exhibits lack of veracity when giving evidence which is unfavourable to the party that called the witness on a matter witness should know about.
● gives evidence that is inconsistent with a statement made by that witness
● refuses to answer or withholds information
● actual or apparent intention to be unhelpful must exist
What are the 4 steps of disclosure
● initial
● full
● defence
● third party
What is the documents required for initial disclosure
● SOF
● charging doc
● QHA
● summary of def right to apply for more info
Under S.13 Criminal Disclosure Act when must full disclosure be made
● not guilty plea
● first appearance in YC
What do Police instructions advise Prosecutors to consider when deciding whether something supports or rebuts a case
● would info hinder or help defendant to defend
● would info detract from Prosecution case or incriminate another person
Outline S.14A ID witness
when someone has been charged with an offence prosecution must supply (if asked) name of witness, statement given by witness and a copy of any identikit picture
What are some instances that info can be withheld
● police don't hold that info ● prejudice maintenance of law ● endanger any person ● material to assist in conduct of trial ● publicly available
Under S.79 Evidence Act when can complainants/witnesses have support people
● complainant entitled to 1 person ● child witness when giving evidence ● other witness ● doesn't matter if evidence given in ordinary or alternative way. ● judge can decline suport ● can be interpreter or sign language
What are the ways of giving evidence in the alternative way
● audio visual link
● behind screen
● video made prior
What is the general principle about people being eligible and compellable
all persons are eligible to give evidence for prosecution or defence. All persons who are eligible are compellable - can be required to testify against their will
Outline S.73 Compellability of defendants
● defendant not compellable for pros or defence
● associate not compellable unless being tried separately or case against associate has finished
What is the definition of privilege
● is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible ● privilege evidence can arise from contents of evidence, class of evidence or nature of relationship ● Judge has discretion to protect confidentiality by weighing competing public interest
what are the rules of veracity
● does not apply to a person if veracity was an element of the offence, e.g perjury
● does not apply to bail or sentencing matters except if it relates to sexual experience or reputation
What is the general rule of propensity
a party may offer propensity evidence about any person, except evidence of an act or omission that is one of the elements of the offence for which a person is on trial
What are the rules about propensity evidence
● a def may offer P.E about themselves, if so prosecution may also offer P.E about the defendant
● def can offer neutral P.E
● def may only offer P.E about a co-defended if relevant to defence raised
● Prosecution may offer P.E about def only if evidence has probative value which outweighs risk that evidence may be unfairly prejudicial
● Judge must weigh relevance of PE against competing position of parties & warn jury about any illegitimate reasoning
● def doesn’t have to have been convicted for an incident to be cited as P.E
How does a judge assess the probative value of evidence
● consider nature of issue in dispute ● frequency of acts ● how closely connected in time ● similarity of any previous acts ● number of people making an allegation ● whether result of collusion ● acts share unusual features
What is the rule about sexual experience under S.44
No evidence can be given or question put relating to the reputation of the complainant in sexual matters. Means that reputation evidence cant to be given towards a complainants credibility
What is the general rule about hearsay statements - S.17
are not admissible except when there is a specific provision for admissibility
What is the general rule for the admissibility of hearsay statements - S18
if circumstances of statement give assurance it is reliable, or maker not available or undue delay cost to get person in court
What is the criteria for admissibility of hearsay statements
● reliability
● unavailability of witness
● undue cost/delay
Outline S.19 Admissibility of hearsay statements contained in business records
will be admissible where no useful purpose would be served by having a person appear as a witness, because there would be no expectation they’d remember the information on the record
What is the definition of ID evidence
● an assertion by a person (based on what they saw) that they saw the def was near or at a place when crime took place
● an account (written or oral) of that assertion
What are the requirements of S.45 admissibility of visual identification evidence
● ID evidence obtained by formal process will be admissible unless def can prove on balance of probabilities it is unreliable
● only applies to visual ID of a person alleged to have committed an offence
Outline the formal ID procedure
● witness to observe as soon as practicable after incident
●suspect to be compared to no few than 7 person who look similar
● no clues to be given to witness
● witness informed that suspect may not be on there
● process to be recorded in writing and signed by officer & sworn to be true
● actual photo of suspect to be certified by officer
What are the good reasons for not following formal ID procedure
● refusal of suspect to take part (if photo not already available)
● can’t find similar looking people
● ID not deemed to be an issue
● If ID was confirmed soon after offence during initial investigation
● if ID was made after a chance meeting between suspect and witness
What is the admissibility of voice ID - S.46
voice ID offered in prosecution is admissible if proven reliable on the balance of probabilities
