Chpt 8 - Evidence

Question 1

What is evidence

Answer 1

Evidence is the term for the whole body of material which s court or tribunal i.e in criminal cases the judge or jury may take into account in reaching their decision

Evidence may be oral, written or visual form

Question 2

The rules of evidence

Answer 2

Determine the form in which and the means by which evidence may be presented to court.
Three categories
How evidence may be given
Who may give evidence
What type of material may be given in evidence

Question 3

Basic teminology

Answer 3

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

Fact finder - judge or jury

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

Facts in issue - prosecution must prove in order to establish the elements of the offence or a defendant when by have burden of proof

Proceeding - conducted by court

Weight of evidence - weight in relation to facts in issue. Is the degree of probative value that can be accorded to the evidence

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, the drawing of an inference against a party

Offer evidence - party offers evidence

Give evidence - witness

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

Child complainant - child under 18yrs when proceedings commence - when charged not a trial

Child witness - witness who is a child when proceeding commences, includes while complainant but does not include a defendant who is a child

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

Statement - spoken or written assertion by person or non verbal conduct of person intended by that person as an assertion of any matter

Hearsay statement - is a stmt 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

Veracity - is the disposition of a person to refrain from lying

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

Direct evidence - any evidence by a witness as to a fact in issue which he has seen heard or otherwise experienced (eyewitness who states that she saw defendant stab complainant with knife - gives direct evidence)

Circumstantial evidence - of circumstances that do not directly prove and fact in issue but which allow inferences about the existence of those facts to be drawn (defendant was seen in vicinity of scene)

Enforcement agency - NZ police, NZ customs, ministry of fisheries and IRD

Question 4

Purpose of evidence law

Answer 4

Section 6
Evidence act 2006

The purpose of this act is to help secure the just determination of proceedings by -

a) providing for facts to be established by the application of logical rules
b) providing rules of evidence that recognise the importance of the rights affirmed by the NZBOR
c) promoting fairness to parties and witnesses
d) protecting rights of confidentiality and other important public interests
e) avoiding unjustifiable expense and delay
f) enhancing access to the law of evidence

Outside of the act common law cases can be used to help decide which evidence might be admitted but only in so far as they are consistent with the act

Question 5

Principles governing the rules of evidence

Answer 5

Section 7
Evidence act 2006

All relevant evidence is admissible in a proceeding except evidence that is

a) inadmissible under this act or any other act
b) excluded under this act or any other act

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

Reliability - not a general ground of inadmissibility
Relevant evidence may be excluded or if admitted may attract judicial warning (unreliable sect 122)

Question 6

Evidence act

Answer 6

Section 8
General exclusion

In any proceeding the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will

a) have an unfair prejudicial effect on the proceeding
b) needlessly prolong the proceeding

Once a judge decides that sect 8(1)(a) or (b) applies the requirement of general exclusion is mandatory

Question 7

Evidence act

Answer 7

Section 9
Admission by agreement

Allows admission of evidence even if it is not otherwise admissible where parties agree - judge may still decline

Question 8

Burden and standard of proof, corroboration and warnings

Answer 8

Woolmington principle - presumption of innocence the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence

Defence have an evidential burden i.e self defence once made a live issue then the prosecution must destroy the defence

The prosecution do not have a burden of proof for public welfare regulatory offences

Question 9

Standard of proof

Answer 9

Prosecution- beyond reasonable doubt

Beyond reasonable doubt is therefore a very high standard of proof which the crown will have met only if at the end of the case the jury is sure that the defendant is guilty

Defence - balance of probabilities

It must simply show that it is more probable than not

Question 10

Corroboration

Answer 10

Section 121
Evidence act
One witness testimony unsupported by any other evidence will suffice to prove case. Court satisfied witness reliable

Perjury and treason - sect 108 and 110, 111) unsupported evidence of one witness is insufficient to support a conviction

Sect 121(2) - no requirement on judge to give a general warning to jury regarding dangers of uncorroborated evidence - expect perjury/treason
However judge may offer warning if they are of the opinion that the uncorroborated evidence maybe unreliable

Sect 125(1) - prohibits a corroboration warning in cases involving child complainant where the warning would not have been given had the complainant been an adult

Question 11

The trial process 1

Questioning witnesses and presenting the case

Answer 11

The adversarial system
Conduct of criminal trials follows adversarial or accusatorial system
Essential features:
Facts of the case and evidence relevant to the determination of those facts emerge by means of questions put by the prosecution or defence to witnesses called by them
Up to each party to decide on witnesses to call and order and questions asked
Each party can cross examine
Judges function to ensure evidence produced i accordance with rules
Defendant does not have to give evidence or do anything to assist prosecution

Question 12

The course of evidence

Answer 12

Oaths and affirmations

Witnesses 12 yrs or older must take an oath or affirmation
Under 12 yrs must be informed by judge of the importance of telling the truth not telling lies and must then make a promise to tell truth before giving evidence
Can include adult with intellectual disabilities

Question 13

Conduct of trials

Answer 13

Prosecution opens and calls witnesses followed by defence opening and calling witnesses. Court may give defendant leave to make opening stmt before prosecution calls witnesses
Section 107 criminal procedure act 2011, defence may call witness immediately after a prosecution witness - to assist jury in building story

Question 14

Section 84

Examination of witnesses

Answer 14

Unless directed otherwise by enactment or judge - in any proceeding
a) witness first gives evidence in chief
b) after giving evidence may be cross examined by all parties
c) after all parties have cross examined - witness maybe re examined
If witness gives evidence in affidavit or by reading written stmt in court - treated as evidence given in chief

Question 15

Refreshing memory

Answer 15

Refreshment of memory in court
Consulting document whilst given evidence
Leave of judge must be obtained
Document must be shown to all parties
Document must have been made by a witness at time when their memory was fresh
Document must have been made by the witness or by person acting on their behalf

Example - Prosecution asks leave of court for witness to refer to stmt in court
Cop asks to refer to notebook
Not admitted as evidence

Where a witness refreshes their memory by reading stmt prior to court the documents cannot be admitted as evidence and can’t be cross examined

Refreshment of memory out of court
Can refer to stmts
Defence made aware and given copies

Question 16

Hostile witness

Answer 16

A hostile witness is one who (s4)
Exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called witness - which witness reasonably should have knowledge of
Gives evidence that is inconsistent with stmt in a manner exhibits or appears to exhibit an intention to be unhelpful
Refuses to answer questions deliberately withholds evidence

Judge decides - consider demeanour, behaviour or other relevant issues
If declared hostile questions can be asked in manner of cross examination, leading questions questions designed to probe accuracy, challenges veracity

Hannigan v R (2013)
An inconsistency with stmt even a stark one does not necessarily mean hostile witness

Can still call a party even if known to be hostile

Question 17

Pre-trial disclosure

Answer 17

Four step regime
Initial disclosure, full disclosure by prosecution, defence disclosure and third party disclosure

Prosecution
Initial disclosure
No later than 21 days after commencement of proceedings is limited to
SOF
Charging doc
Summary of defendants rights to apply for further info before entering plea
Max or min penalty
List of known previous convictions
List of previous offences to which CYPG act applies

Defendant may apply for further information at commencement of proceedings

Full disclosure
Under sect 13 criminal disclosure act full disclosure by prosecution be made asap reasonably practicable after defendant has
Pleaded not guilty
Defendant is child or yp and its first appearance

Section 8 meaning of relevant
In this act relevant in relation to information or an exhibit means information or an exhibit as the case may be that tends to support or rebut or has a material bearing on the case against the defendant

Prosecutor to consider if information will
Help or hinder defendants ability to defend charges
Would or might retract from prosecution case or assist the defence or incriminate another person

Prosecution to allow exhibits to be inspected

Sections 15-18 criminal disclosure act 2008 allow for withholding of information at all stages

Question 18

The trial process II - protecting and supporting witnesses

Answer 18

Section 79 evidence act
Support persons

Function of support person is to reduce stress and trauma for witness. They can merely support, not prompt or advise

Allowed one or more with judges permission
Must disclose name asap
Judge may decline (public figure, may affect jury’s assessment of witnesses veracity

Communication assistance
Judge will decide if defendant needs, it applies to witness but only when giving their evidence

Question 19

Alternative ways of giving evidence

Answer 19

Section 103
Under sect 103(3) a direction may be made in any of the following grounds

Age, maturity
Physical, intellectual, psychological or psychiatric impairment
Trauma suffered
Fear of intimidation 
Linguistic or cultural background
Nature of proceeding
Nature of the evidence 
Relationship

Furthermore under sect 103(4) the judge may have regard to

Need to ensure fairness of the proceeding
Views of the witness
Need to minimise stress on witness
Need to promote the recovery of the complainant
Any other relevant factor

Alternative means are
In courtroom but unable to see defendant
From an appropriate place outside the courtroom with in NZ or elsewhere
By a video record made before the proceeding

Judge must direct jury that no adverse inferences should be drawn due to the alternative method

Section 107
Child complainant
Entitled to give evidence in alternative way - notice to all parties for which process
Prosecution must apply for direction about way complainant gives evidence and is cross examined

Question 20

Eligibility, compellability, privilege and confidentiality

Answer 20

All persons eligible to give evidence, that are lawfully able to give evidence on behalf of prosecution and defence
Can be made to testify against their will
Defendant eligible but not compellable as witness
Some people may lack capacity to give rational and coherent testimony- unavailable to be witness, sect 16 - unfit because of age, physical or mental condition - but still compellable
Can be excused by judge for just cause sect 165
Where eligible and compellable and not excused certain questions maybe excused - privilege

Section 72 evidence act 2006
Judges, jurors and counsel
Judge not eligible to give evidence in proceeding they are acting in and neither can juror unless given permission by judge, they will be discharged and trial continue with 11 jurors.
Defendant representing themselves doesn’t need judicial permissions to testify

Section 73 evidence act 2006
Compellability of defendants and associated defendants in criminal proceedings

A defendant is eligible but not compellable as a witness
An associated defendant is someone against whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried or that relates to or is connected with the offence for which the defendant is being tried (burglar/receiver)
An associated defendant is not compellable unless they are being tried separately or the proceeding against the associated defendant has been determined

Section 75
Bank officer is not compellable to produce banking records if the contents can be proven under the business records exception to hearsay

A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible

Privileged evidence can arise from the contents of the evidence, the class of the evidence or because of the nature of a particular relationship
Sect 54 - Legal advisors
Sect 55 - solicitors
Sect 56 - preparing material for court
Sect 57 - settlement negotiations, mediation, pleas
Sect 58 - minister of religion
Sect 59 - medical practitioner, clinical psychologist
Sect 60 - against self incrimination
Sect 64 - informer privilege

Confidentiality
Jury deliberations- judge may weight public interest in protecting the confidentiality of the and the public interest in ensuring that justice is done in those proceedings

Question 21

Veracity and propensity

Answer 21

Veracity - disposition to refrain from lying

Rules don’t apply if offence is about persons veracity (perjury) hannigan v R - as long as what is stated in witness precious inconsistent stmt has some relevance to the facts in issue, stmt cannot be classified as evidence about witness veracity

Doesn’t apply to bail or sentencing hearings
Except when evidence relates directly or indirectly to sexual experience of complainant with any person other than defendant or reputation

Propensity - tendency to act in a particular way

Section 41 - propensity evidence about defendants 
Ability to offer evidence of a good propensity. Johnston v R - defendant offered evidence of his extensive criminal history for burglary in an unsuccessful attempt to show that he had not been on the property to rape. 
Also allows defendants to offer evidence of disreputable conduct and neutral propensity 
Sect 41(2) - by offering evidence of their propensity to act in a good fashion opens the door to rebuttal evidence by the prosecution 
Wi v R - evidence of no previous criminal convictions won't open the door
The door is not opened by an attack on the propensity of a prosecution witness 

Section 42 - propensity evidence about co-defendants
A defendant may only offer propensity evidence about s co-defendant if the evidence is relevant to a defence raised or proposed to be raised by the defendant and the judge permits it.

Section 43 - propensity evidence offered by prosecution about defendants
Will only be admissible where the evidence has a probative value in relation to an issue in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
The defendant does not have to have been convicted as a result of their earlier wrongdoing to qualify as admissible propensity evidence
Prior acquittal evidence - Fenemor v R

Judge must identify relevance of the evidence, outline competing positions of parties and warn jury against illegitimate reasoning processes. M v R and Mahomed v R

Assessing probative value
Judge must take into account the nature of the issue in dispute and may then consider the following:
Frequency of the acts demonstrating the defendants propensity
How closely connected the are in time to the current offending
Similarity between the previous acts and those currently alleged
Number of people making allegations against defendant
Whether allegations maybe result of collusion or suggestibility
Do the acts share similar unusual features

Heatherington v R - degree of similarity is not diminished because the offending in issue is a progression in seriousness

The judge must consider whether the evidence is likely to unfairly predispose the fact finder against the defendant and whether the fact finder will give disproportionate weight to the propensity evidence

Section 44 - evidence of sexual experience of complainant in sexual cases
Judges permission is required before any questions out to a complainant regarding their sexual experience with anyone other than defendant

Question 22

Hearsay

Answer 22

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. Sect 4.

A statement offered for some other purpose, for example merely to show that at stmt was made is not a hearsay stmt

Out of court stmts by witness not included
Unintended assertions are not statements and so are not hearsay stmts

Section 18 - main exception to hearsay rule
General admissibility of hearsay
A hearsay stmt is admissible if
a) the circumstances relating to the stmt provide reasonable assurance that the stmt is reliable and
b) either
1) the maker is unavailable as a witness or
2) the judge considers that undue expense or delay would be caused if the maker were required as a witness.

Reliability
The reason for the rules existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested

Sect 16(1) - Circumstances regarding reliability of the stmt are
Nature of the stmt
Contents of the stmt
Circumstances that relate to:
The making of the stmt
The veracity of the person
The accuracy of the observation of the person
R v Gwaze 

Sect 16(2) - unavailable as a witness
Dead
Outside NZ or not reasonably practicable for them to be witness
Unfit because of age, physical or mental condition
Cannot be identified or found
Is not compellable to give evidence

Sect 16(3) 
16(2) does not apply to a person whose stmt is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence 

Sect 19 - admissibility of hearsay stmts contained in business records
Admissible if the person who supplied them is unavailable or judge consider no useful purpose calling them
NB: police note books do not count as business records as they are not inherently reliable

Sect 22 - notice of hearsay in criminal proceedings
Required to admit under sect 18 or 19
Must provide every other party with a written notice stating
a) party’s intention to offer the hearsay stmt in evidence
b) name of the maker of the stmt
c) if made orally the contents of the stmt
d) circumstances relating to the making of the stmt
e) why the document is a business record
f) why the person is unavailable as a witness
g) why undue expense or delay would be caused

Written hearsay stmt must accompany the notice
Judge must dispense with the above requirements
Rationale for the notice is to encourage admissibility decisions to be made pre trial. And allows the other party chance to oppose the admission and obtain rebuttal evidence

Question 23

Identification evidence

Answer 23

Section 45 - Admissibility of visual identification evidence

1) if formal ID procedure followed or good reason not to then visual ID evidence is admissible unless defence proves on balance of probabilities that it is unreliable
2) if formal ID procedure not followed and no good reason for not doing so ID evidence is inadmissible unless prosecution proves beyond reasonable doubt that the circumstances in which the ID was made have produced a reliable ID
3) a formal procedure is a procedure for obtaining visual identification evidence
a) done asap after alleged offence is reported to enforcement agency and
b) compared to no fewer than 7 persons similar in appearance and
c) no indication to be given to the person making the ID and
d) person making the ID to be advised the person may or may not be among the persons in the procedure
e) written record of ID made and sworn as true by conducting officer and provided to judge and defendant
f) pictorial record certified and given to judge and defendant
g) complies with any further requirements under sect 201
4) good reasons for not following a formal procedure
a) refusal of person to be identified to take part in the procedure
b) singular in appearance
c) change of appearance
d) no anticipation that the identification would be an issue
e) identification made shortly after the offence
f) chance meetings

Formal parades - sgt or Snr sgt to conduct. O/C can be present but must not take part in the proceedings

Section 46 - admissibility of voice identification evidence

Voice ID evidence - evidence that is an assertion by a person to the effect that s voice, whether heard first hand or through mechanical or electronic transmission or recording is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial of the commission of an offence

Voice ID offered by prosecution is inadmissible unless prosecution proves on balance of probabilities that the circumstances in which the ID was made have produced a reliable identification