Chapter 9.1 - Evidence Part 2 Flashcards
How many days after the commencement of proceedings should initial disclosure should be made?
Generally not later than 15 working days
Evidence act section 79
Support persons
A complainant, child witness and any other witness is entitled to support person. Must have permission of the judge
Must disclose the name of each party who is offering support
Alternative ways of giving evidence, grounds on which the judge may order this
The age and maturity of the witness
The physical, intellectual, psychological or psychiatric impairment of the witness
Trauma suffered by the witness witness fear of intimidation
Cultural, linguistic background
Nature of proceeding
Nature of evidence the witness is expected to give
Relationship of the witness to any party to the proceeding
Absence or likely absence of the witness from New Zealand
Alternative ways of giving evidence
Video recorded
Behind a screen while in the court room
From an appropriate place outside the courtroom
Section 72 evidence act
Judges, jurors and counsel
Judges unable to give evidence
Jurors and counsel unable to give evidence unless they have permission from the judge
Section 73 evidence act
Compellability of defendants and associated defendants in criminal proceedings
A defendant is not a compellable witness for either prosecutions or defence
Types of privilege
Privilege for communications with legal advisors - section 54
Privilege and solicitors trust accounts - section 55
Privilege for predatory materials for proceedings - section 56
Privilege for settlement negotiations, mediations or plea discussions -section 57
Privilege for communications with ministers of religion - section 58
Privilege for information obtained by medical practitioners and psychologists - section 59
Privilege against self incrimination - section 60
Informer privilege - section 64
Two types of character evidence
Veracity (disposition to refrain from lying)
Propensity (tendency to act in a particular way)
Section 41 evidence act
Propensity evidence about defendants
May offer good, bad or neutral propensity
Section 42 evidence act
Propensity evidence about co defendants
Defendant may only offer propensity evidence about a co offender if the evidence is relevant to a defence raised or proposed to be raised by a defendant
Section 43 evidence act
Propensity evidence raised by prosecutions about a defendant
Assessing probative value of propensity evidence things to consider
The frequency of acts demonstrating the defendants propensity increases the probative value of the evidence
How closely the propensity act and the alleged offending has taken place
Similarity between the previous act and those currently alleged
Number of people making allegations
Whether allegations may be the result of collusion
Do the acts share similar unusual features
What is hearsay?
A statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents
Section 18 evidence act
Main exceptions to hearsay rule
Two main criteria for hearsay evidence to be admissible
Reliability
Unavailability or undue expense or delay
A person is unavailable as a witness in a proceeding if
They are dead
Outside nz and it isn’t reasonably practicable for them to be a witness
Unfit to be a witness due to age, mental condition etc
Cannot with reasonable diligence be found or identified
Is not compelled to give evidence
Section 45 evidence act
Admissibility of identification evidence
Visual id made by way of formal procedure will be admissible unless defendant proves that it’s unreliable
If formal procedure is not followed I’d evidence is inadmissible unless there is a reason for following formal procedure
I’d procedure must be conducted by officers of enforcement agency (which includes agencies other than police)
Must be person alleged to have committed an offence
Identification evidence - Formal procedure key points
Must be observed as soon as practicable after the offence
Suspect must be compared to no fewer than 7 other persons similar in appearance
Cannot indicate to the person who the suspect is
Person must be informed that suspect may or may not be in the procedure
Must be sworn as true and complete
Reasons for not following formal procedure
Refusal of suspect to take part in procedure
Singular appearance of suspect
Substantial change in appearance after offence was committed
No one could reasonably anticipate that identification was an issue
If identification of suspect was made to officer soon after the offence
If identification of suspect was made after a chance meeting between the person who made the identification and the suspect
Section 46 evidence act
Admissibility of voice identification evidence
