Chapter 9 - Evidence Part 1

Question 1

What is evidence

Answer 1

Is the term for the whole body of material which a court or tribunal may take into account in reaching their decision

Evidence may be in oral, written or visual form

Question 2

The rules of evidence fall into the following categories

Answer 2

How evidence may be given

Who may give evidence

What type of material may be given in evidence

Question 3

Terminology part 1 (admissible evidence, fact finder, relevance, facts in issue)

Answer 3

Admissible evidence - evidence is admissible if it is able to be legally received by a court

Fact finder - judge or jury

Relevance - evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding

Facts in issue - facts that the prosecution must prove in order to establish the elements of the offence. Facts the defendant must prove in order to succeed with a defence of which they carry the burden of proof

Question 4

Terminology part 2 - (weight of evidence, probationers value, prejudicial, offer evidence)

Answer 4

Weight of evidence - the evidences value in relation to the facts in issue

Probative value - how strongly evidence points to the inference it is said to support. Probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case

Prejudicial - evidence adverse to a party’s case.

Offer evidence - a party offers evidence, includes calling a witness etc.

Question 5

Terminology part 3 (gives evidence, witness, child complainant, child witness, incriminate)

Answer 5

Give evidence - a person recounting facts or opinions in a proceeding, includes orally, affidavit, audio visual link etc

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

Child complainant - a complainant who is a child (under 18) when the proceedings commence (when charging document is filed, not at start of trial)

Child witness - a witness who is a child when the proceeding commences. Does not include defendant who is a child

Incriminate - to provide information that is reasonably likely to increase the prosecution of a person for a criminal offence.

Question 6

Terminology part 4 (hearsay statement, propensity, direct evidence, circumstantial evidence, enforcement agency)

Answer 6

Hearsay statement - is a statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents.

Propensity - a persons tendency to act in a certain way or have a particular state of mind

Direct evidence - any evidence by a witness as to a fact in issue which he or she has seen heard or experienced.

Circumstantial evidence - evidence of circumstances that do not directly prove any fact in issue but which allow inferences about the existence of those facts to be drawn.

Enforcement agency - an enforcement agency refers to the nz police or any organisation that has a statutory responsibility for the enforcement of an enactment

Question 7

Evidence act section 6

Answer 7

Purpose

Purpose of the act is to help secure the just determination of proceedings by

Providing for facts to be established
Providing rules of evidence
Promoting fairness to parties and witnesses
Protecting rights of confidentially and other important public interests
Avoiding unjustifiable expense and delay
Enhancing access to the law of evidence

Question 8

Section 7 evidence act

Answer 8

Fundamental principal that relevant evidence admissible

All relevant evidence is admissible in a proceeding except evidence that is
Inadmissible under any act
Excluded under any act
Evidence that is not relevant
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the proceeding

Question 9

Evidence act section 8

Answer 9

General exclusion

In any proceeding the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will
Have an unfair prejudicial effect on the proceeding
Needlessly prolong the proceeding

Judge must take into account the right of the defendant to offer an effective defence

Question 10

Section 9 evidence act

Answer 10

Admission by agreement

Enables both prosecution and defence to admit facts so they do not need to be proved

Question 11

Burden of proof key points

Answer 11

Lies with the prosecution in relation to all elements of the offence.

Once defendant uses evidential burden and it becomes a live issue it is up to the prosecution to destroy the defence again as they have burden of proof

Question 12

Standard of proof key points

Answer 12

Any party bearing a legal burden of proof must discharge this burden to the standard required

Must be proven beyond reasonable doubt

Question 13

The trial process - the adversarial system, key points

Answer 13

The facts of the case emerge by means of questioning by prosecutions or defence to witnesses

It is up to each party to decide which witnesses to call and questions they should be asked

Each party has the right to test the testimony of witnesses through cross examination

During the trial the judges function is to ensure that evidence is produced according to the rules

The defendant does not have to give evidence and demand that the prosecution prove its case beyond reasonable doubt

Question 14

The trial process - oaths and affirmations

Answer 14

Witnesses who are 12 and over must take an oath or affirmation before giving evidence.

Question 15

Section 84 evidence act

Answer 15

Examination of witnesses

Unless this act or any other enactment provides otherwise or the judge directs to the contrary in any proceeding

A witness first gives evidence in chief
After giving evidence the witness may be cross examined
After being cross examined the witness may be re examined

If a witness gives evidence in an affidavit this may be used as evidence in chief.

Question 16

A hostile witness is a person who

Answer 16

Exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness

Gives evidence inconsistent with a statement made by that witness in a manner which appears to be unhelpful to the party that called them

Refuses to answer questions or deliberately withholds evidence

Question 17

What is required in initial disclosure

Answer 17

Summary of facts
Charging document
Summary of defendants right to apply for further info
The maximum or minimum penalty for an offence
List of known previous convictions
A list of previous offences proved to have been committed

Question 18

Criminal disclosure act section 13

Answer 18

Full disclosure

Must be made as soon as reasonably practicable if the defendant has

Pleaded not guilty

If the defendant is a CYP makes a first appearance in court

Question 19

Criminal disclosure act section 8

Answer 19

Meaning of relevant

In relation to information or an exhibit means info or an exhibit as the case may be that tends to support or rebut or has a material meaning on the case against the defendant

Question 20

Section 15-18 criminal disclosure act

Answer 20

May withhold info at all stages if

Section 15 - prosecutor does not hold the info in recorded form

Section 16 - disclosure is likely to prejudice the maintenance of the law

Section 17 - info that may lead to the identification of a witness or informants address

Section 18 - info would disclose a trade secret or prejudice the commercial position of the supplier of the information

Question 21

The conduct of criminal trails follows what system

Answer 21

The adversarial system

Question 22

Section 44 evidence act

Answer 22

Evidence of sexual experience of complainants in sexual cases

Must have permission of the judge before asking these types of questions