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SGT CPK 2020 > Chapter 8: Evidence > Flashcards

Chapter 8: Evidence Flashcards

1
Q

What is evidence?

A

Whole body of material which a court or tribunal may take into account in reaching their decision.

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2
Q

The rules of evidence determine what?

A

The form in which evidence may be presented in court. Found in statute and case law.

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3
Q

The rules of evidence fall in to what 3 main categories?

A
  1. How evidence may be given
  2. Who may give evidence
  3. What type pf material may be given in evidence
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4
Q

Admissible Evidence

A

Legally able to received by a court.

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5
Q

Fact -Finder

A

Judge or Jury

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6
Q

Relevance (evidence)

A

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

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7
Q

Facts in issue

A

Facts that the prosecution must prove in order to establish the elements of the offence (or which defendant must prove to succeed in defence where they carry a burden of proof).

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8
Q

Proceeding

A

Conducted by court or any interlocutory/application to a court connected with a proceeding.

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9
Q

Weight of evidence

A

Its value in relation to the facts in issue. Depends on extent it is supported/contradicted/veracity of witness.

Weight is the degree of probative value that can be accorded to the evidence.

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10
Q

Prejudicial

A

Evidence that is adverse to a party’s case.

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11
Q

Offer evidence

A

A party offers evidence. Can both give and offer evidence, includes cross examination.

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12
Q

Evidence may be given in the following ways:

A
  • Orally
  • Affidavit
  • Reading a written statement
  • Alternative way - eg screen, video record, audio visual link
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13
Q

Witness

A

person who gives evidence and is able to be cross examined in a proceeding.

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14
Q

Child complainant

A

Under 18 when the proceeding commences (when charging document filed)

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15
Q

Child witness

A

A witness who is a child when proceedings commences, includes complainant but does not include defendant.

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16
Q

Incriminate

A

Provide information that is likely to lead to the prosecution of a person for a criminal offence.

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17
Q

Statement

A

Spoken or written assertion by a person, or a non verbal conduct of a person intended by that person as an assertion of any matter.

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18
Q

Hearsay statement

A

Statement made by a person other than a witness & is offered in evidence in the proceeding to prove the truth of its contents.

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19
Q

Veracity

A

The disposition of a person to refrain from lying

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20
Q

Propensity

A

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

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21
Q

Direct evidence

A

Evidence by a witness which he or she has seen, heard or otherwise experienced.

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22
Q

Circumstantial evidence

A

Evidence of circumstances that do not directly prove any fact in issue but allow inferences about those facts to be drawn.

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23
Q

Enforcement Agency

A

Refers to NZ Police or any body/organisation that has statutory responsibility of the enforcement of an enactment eg Customs, IRD, Fisheries.

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24
Q

Section 6, Evidence Act 2006 - Purpose of evidence law:

A
  • Facts to be established
  • Rules of evidence that recognise BORA 1990
  • Fairness
  • Protect confidentiality
  • Avoid unjustifiable expense/delay
  • Enhances access to law of evidence
25
Q

R v Gwaze - Principles governing the Rules of Evidence

A

Rules of admissibility including S.7 & 8 are rules of law and are not matters of discretion.Although they involve questions of judgement, they prescribe standards to be observed.

26
Q

Section 7, Evidence Act 2006 - Relevance

A

Evidence that is not relevant will not be admissible.

Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.

27
Q

Reliability

A

Relevant evidence may sometimes be excluded or if admitted may attract a judicial warning because it is regarded as unreliable (S.122)

28
Q

Section 8, Evidence Act 2006 - Exclusion

When would evidence be excluded?

A
  • Result in unfair prejudice
  • Obtained in circumstances that would make its admission unfair eg obtained by unfair/improper methods
  • needlessly prolong the proceeding
29
Q

What is the S.8 test?

A

Balancing the probative value of evidence against the risk that it will have an unfairly prejudicial effect on the proceeding (S8(1)(a)), or needlessly prolong the proceeding (S8(1)(b)).

30
Q

S.8 Unfair prejudice

A

Allows exclusion of evidence likely to be unfair by distracting the fact finder from the real issues in the trial.

31
Q

Section 9, Evidence Act 2006 - Admission by agreement

A

Allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. Judge has final say. Eg ‘Hand up’

32
Q

Woolmington Principle

A

Presumption of innocence - the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

33
Q

Exceptions to Woolmington Principle:

A
  • Insanity defence (S.23 CA 1961)
  • Specific Statutory exceptions
  • Identification Evidence (S.45)
34
Q

Standard of Proof

A

Prosecution must prove beyond reasonable doubt.

35
Q

Beyond Reasonable Doubt

R v Wanhalla

A

A reasonable doubt is 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.

36
Q

Section 121, Evidence Act 2006

Corroboration

A

Witness testimony unsupported by any other evidence, that the court is satisfied is reliable & accurate & provides proof to the required standard.

37
Q

Exception to Corroboration evidence

A

Treason & perjury require more than one witness

38
Q

Section 122, Evidence Act 2006 Corroboration - Judge must?

A

Consider if they need to warn the jury about the reliability of uncorroborated evidence. eg hearsay evidence

39
Q

Section 125, Evidence Act 2006 Child complainant re corroboration

A

Prohibits judge giving corroboration warning in cases involving child complainant where the warning would not have been given had the complainant been an adult.

40
Q

Oath and affirmation - age?

A
  • 12 yrs and older must take oath or affirmation before giving evidence
  • Under 12: must be informed by Judge the importance of telling the truth and not telling lies.
  • S.77 - may give evidence without taking oath/affirmation with Judge’s permission eg 1M/Child
41
Q

Refreshing witness memory with written document:

A
  • leave of Judge must be obtained
  • Document must be shown to all parties
  • Document must have been made or adopted by a witness at a time when his/her memory was fresh
  • Document must have been made by the witness
42
Q

R v Jannings - Refreshing memory

A

It is perfectly permissible for a witness to re-read their briefs before trial.

43
Q

What is a hostile witness

A
  • exhibits a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may be reasonably supposed to have knowledge, or
  • gives evidence that is inconsistent with their statement or an intention to be unhelpful, or
  • refuses to answer questions/withholds evidence
44
Q

If a witness is declared hostile you can:

A

Ask them questions in the manner of a cros-examination.

- Can include leading questions/challenges to veracity/prior inconsistent statements

45
Q

Hostile witness

R v Vagaia

A

There is no rule restricting a party from calling a witness who is known to be hostile to that party.

46
Q

S13 Criminal Disclosure Act 2008 - full disclosure by the prosecution must be made as soon as reasonably practicable after a defendant has:

A
  • pleaded not guilty

- if youth - makes a first appearance in Youth Court

47
Q

When can information not be disclosed?

A
  • when it is not relevant, or
  • withhold under S15,16,17 or 18, or
  • request appears frivolous or vexatious
48
Q

Associated defendants - compellable?

A

Compellable if tried separately or where proceeding against them has been determined.

49
Q

Who/what could refuse to give evidence using privilege?

A
  • legal advisor
  • solicitors trust account
  • preparatory materials for proceedings
  • settlement negotiations
  • ministers of religion
  • medical practitioners
  • self incrimination
  • informer privilege
50
Q

R v Hannigan

Veracity

A

Veracity rules do not control evidence which is directly relevant to the facts in issue in the proceedings.

51
Q

General rule of propensity

A
  • propensity evidence about a defendant may only be offered in accordance with S41,42,43 and
  • in sexual cases propensity evidence about a complainants sexual experience may only be offered in accordance with S44.
52
Q

S41 - Propensity evidence about defendants

A
  • able to offer evidence of good propensity about the defendant. eg good character evidence.
  • defendant can do it or through other witnesses
  • defendant opens the door to rebutting evidence
53
Q

S42 - Propensity Evidence about co-defendants

A

A defendant may only give propensity evidence against a co-defendant if it is relevant to a defence raised or proposed to be raised by the defendant & if the judge permits it.

54
Q

S43 - Propensity Evidence offered by prosecution about defendants

A

Evidence that defendant has propensity to commit criminal acts is relevant to guilt or innocence BUT Judge must identify the relevance of the evidence, outline competing positions & warn jury against illegitimate reasoning processes (M v R, Mahomed v R)

55
Q

S44 - Evidence of sexual experience of complainants in sexual cases:

A
  • Permission of Judge required before questioning complainant regarding their sexual experience with anyone other than the defendant.
  • Only allowed if evidence is of such direct relevance to facts in issue that to exclude it would be contrary to the interests of justice.
  • Must make written application outlining questions to be asked.
  • No evidence or questions relating to the sexual reputation of the complainant allowed.
56
Q

S18 - main exception to the hearsay rule

A

Two criteria for admissibility of hearsay evidence:

  1. Reliability
  2. Unavailability or undue expense or delay
57
Q

S18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. Section 16(1) Evidence Act 2006 defines circumstances:

A
  • nature of the statement
  • contents of the statement
  • circumstances that relate to the making of the statement
  • circumstances that relate to the veracity of the person
  • circumstances that relate to the accuracy of the observation of the person
58
Q

Formal Identification Procedure - reasons not to do it:

A
  • refusal to participate
  • singular in appearance
  • change of appearance
  • no anticipation that identification would be an issue

SGT CPK 2020 (14 decks)

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