Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Evidence > Combined Module > Flashcards

Combined Module Flashcards

1
Q

What is evidence?

A

Body of material that a court or tribunal may take into account to reach a decision

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

List three ways to give evidence?

A
  • Oral
  • written
  • visual
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

When is evidence admissible ?

A

Evidence is admissible if it is legally able to be received by a court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

When is evidence relevant?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What facts need to be proven in issue?

A
  • prosecution must prove to establish the elements
  • the defendant must prove to succeed with a defence in which he or she carried the burden of proof
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are exclusionary rules In relation to evidence?

A

Rules that exclude evidence due to:
- being unreliable
- unduly prejudicial
- unfair to admit it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the weight of evidence and three considerations..

A

The “weight” of evidence is its value in relation to the facts in issue.

• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• the extent to which it is supported or contradicted by other evidence produced
• the veracity of the witness.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the purpose of the evidence act including 6 points?

A
  • facts to be established by the application of logical rules.
  • providing rules which recognise the importance of the NZ bill of
    Rights act 1990
  • providing fairness to parties and witnesses.
  • protecting rights of confidentiality and other important public interests
  • avoiding unjustified delay and expense
  • enhancing access to the law of evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

The exclusive rules of evidence deal with … (6 things)

A
  • veracity
  • propensity
  • hearsay
  • opinion
  • identification
  • improperly obtained evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

4 factors that assist in determining if evidence is admissible

A
  • relevance
  • reliability
  • unfairness
  • public interest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Child complainants corroboration warning rule

A

The judge cannot warn a jury of any absence of corroboration of a child’s evidence if them same rule applied for adults.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is a reasonable doubt?

A

An honest and reasonable uncertainty about the guilt of the offender after considering all available evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Explain the balance of probabilities

A

It must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

3 ways that a witness can give evidence in court..

A
  • the ordinary way, verbally in front of a judge, jury and defendant.
  • the alternative way such as through video link or screens.
  • any other way provide for the evidence act 2006 or any other enactment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the Standards of proof on the prosecution and on defence?

A
  • Prosecutions burden of proof is beyond reasonable doubt
  • Defence burden of proof is proved on the balance of probabilities
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

R v Wanhalla

A
  • the starting point is the presumption of innocence until the crown has proven guilt
  • the crown must prove the guilt beyond reasonable doubt which is a very high standard
  • it is not enough for the crown to pursue a probable belief in guilt
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Detail “offer evidence” and “giving evidence”

A

Evidence must be elicited before it is offered

  • A party offers evidence, simply putting a proposition to a witness is offering evidence.
  • a witness gives evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Details 3 ways to give evidence

A
  1. The ordinary way - orally in the court room in the presence of the judge and/or jury.
  2. An alternative way - in the courtroom but witness is unable to see the defendant such as AVL, screens.
  3. In other ways provided by the evidence act 2006
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Define “incriminate”

A

To provide information that is likely to influence criminal proceedings against a person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Define “proceeding”

A

A proceeding conducted by a court and any application to the court connected with a proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is a Statement?

A

A spoken or written assertion by a person, or non verbal conduct of a person to an assertion of any matter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Define witness

A

A person that gives evidence and is able to be cross examined in a proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Define “hearsay statement”

A

This is a statement made by a person other than a witness and is offered as evidence in a proceeding. Such statements may be excluded if not for the purpose of proving the truth of its contents.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Define veracity

A

A persons disposition (quality’s and character) to refrain from lying wether generally or in a proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Define propensity

A

Propensity evidence is evidence of a person’s propensity to act in a certain way including acts or omissions or have a particular state of mind

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Define “direct evidence”

A

An eye witness who gives evidence to the fact in issue or has seen, heard or experienced.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Circumstantial evidence

A

Does not directly prove an offence however allows for inference

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is an enforcement agency

A

The NZ police or body/organisation that is responsible for the enforcement of an enactment eg customs, ministry of fisheries or IRD.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What makes good evidence?

A
  • good evidence establishes what you are trying to prove
  • facts that prove the elements of the charge
  • circumstantial evidence that can assist a judge or jury make inference about facts in issue
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Explain judicial notice of a fact?

A

Judicial notice of a fact is where a fact is accepted in court without evidence of it being correct.

An example of this is Christmas Day being the 25th December. This doesn’t need an expert witness to prove in court and is accepted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Explain privilege

A

The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

List 8 types of privilege

A
  • communications with legal advisors
  • solicitor trust accounts
  • prep material for proceedings
  • settlement negotiations or mediation
  • communications with minister of religion
  • information obtained by medical practitioners AND clinical psychologists
  • privilege against self incrimination
  • Informer privilege
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What is a judges role in a Jury trial

A
  • make decisions regarding admissibility of evidence
  • explain and enforce general principals of law
  • instruct the jury of the rules of law
  • ensure rules are followed in regards to evidence being produced
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What is the relationship between the veracity and propensity rule

A

Veracity is a disposition to refrain from lying and propensity is a tendency to act in a certain way

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Explain the veracity rule (what is it and when can veracity evidence to introduced)

A

Veracity evidence is only accepted if it is substantially helpful in a persons veracity.

For a judge to asses if the evidence falls into this category they may consider the following matters:

  • lack of veracity
  • the person has been convicted of 1 or more offences that show a propensity for dishonesty or lack of veracity.
  • any previous inconsistent statements
  • bias on part of the person
  • a reason to be untruthful
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What is “voir dire”?

A

A hearing around admissibility of evidence were the jury is excluded from a court room.

These are referred to a preliminary facts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Explain Hart v R

A

Generally speaking evidence is either admissible for all purposes or not at all.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Explain the “Woolmington principle”

A
  • The presumption of innocence
  • the burden of proof lays with the prosecution in relation to the elements of the offence to prove beyond reasonable doubt
  • the defendant does not have to prove anything
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Multi choice Q on live issue

A

Having an evidential burden means that a defence can not be left to the jury or judge unless it has been made a live issue by the defence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Exceptions to the Woolmington rule

A

Legal burden of proof is placed on the defendant, such as insanity.

The principle can also be overridden by parliament by express statutory exceptions

On occasions the Evidence act may put the burden of proving an issue on an individual such as the defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Corroboration is not necessary unless it is in relation to what 4 situations:

A
  • perjury
  • false oaths
  • false statements
  • treason

Corroboration is required as a matter of law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Detail the opinion rule…

A

A statement of an opinion is not admissible in a proceeding except as provided by section 24/25.

Section 24 -

  1. a witness may state opinion so long as it is necessary to help the witness to communicate, or to help a fact finder understand what the witness is saying.
  2. The witness must be referring to an opinion they have perceived.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Define “circumstances” in relation to a person who isn’t a witness

A
  1. The nature of the statement
  2. The contents of the statement
  3. The circumstances that relate to making the statement
  4. The circumstances that relate to the veracity of the person
  5. The circumstances that relate to the accuracy of the observations
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

5 definitions of an “unavailable witness”

A
  • dead
  • is outside NewZealand and is not reasonably practicable for him or her to be a witness
  • is unfit to be a witness due to age or physical and/or mental conditions
  • cannot be identified or found
  • is not compellable to give evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Propensity evidence offered about the defendant and points for the judge to consider

A

May only be offered if it has a probative value and outweighs the risk of being unfairly prejudicial

Judge to consider:
- frequency of acts
- connection in time
- similarity of acts
- number of different victims
- collusion or suggestibility
- unusual acts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Claiming privilege against self incrimination in court proceedings

A

The judge must satisfy them self’s that the person is aware of the privilege and it’s effects.

Sufficient information should be provided for the judge to asses wether self incrimination is reasonably likely

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Explain what Informers are are the right to privilege..

A

An informant has privilege to not have material disclosed that would reveal their identity. An informer is:

  • someone that has provided information with or without a reward to enforcement agency about an offence where they expect there identity will not be disclosed
  • NOT a witness and NOT called to give evidence
  • an informer can include a member of police working undercover
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Define an associated defendant

A
  • a person was prosecuted in relation to the same events and an offence that a person is already being prosecuted for, of has some connection to the event.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

4 people who are not compellable to give evidence?

A
  1. Judge
  2. Sovereign
  3. Governed-general
  4. Head of state of a foreign country
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

Bank officers

A

Where a bank is not a party to the proceeding, no bank officer is compellable to produce banking record.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

When can the prosecution offer evidence of the defendant’s veracity ?

A

Only if the defendant has offered evidence about their own veracity or they have challenged a prosecution witnesses by reference other than facts in issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

What’s the propensity rule?

A
  1. Evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind in relation to acts, Omissions or circumstances they are alleged to be involved in.
  2. Does not include evidence of an act or omission of an element they are being tried for or the cause of action in the proceeding
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

What’s the general rule about propensity evidence ?

A

The general rule is that a party may offer propensity evidence about any person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

What is legal advice classed as?

A

Any information or communication between a defendant and their legal advice is classified as privileged information under section 54 and 56

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

What can privilege be in relation to in regards to legal aid?

A
  • communications between a party and any other person
  • communications between a persons legal adviser and any other person
  • information prepared or provided by a persons legal advisor
  • information prepared or compiled on request of another person for legal defence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

Define statement

A

A spoken or written assertion from someone in relation to any matter

Included a non verbal assertion if intended to be an assertion of any matter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

Define hearsay evidence

A

A statement that was made by any other witness and is offered to prove an offence in a proceeding. The witness does not give evidence and is unable to be cross examined.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

When is a person eligible to give evidence?

A
  • if they are lawfully able to give evidence
  • once sworn in they are required to answer questions put to them
  • in general all persons are eligible and compellable to give evidence (with some exceptions)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

People excluded from being able to give evidence during a trial ..

A
  • person acting as a judge
  • person acting as a juror or council unless given permission by a judge (a defendant who acts as their own council will not required to seek permission)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

Compellability of a defendant and co offender/associates in hearings

A
  • a defendant in a hearing is not a compellable witness
  • a co offender being tried for the same offence as the defendant is not a compellable witness
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

What must be done before a summons is served to appear in court?

A
  • verify they are allowed to give evidence
  • verify if they are required to give evidence
  • verify if they can refuse to give evidence
  • verify the type of witness they will be
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

What do the exclusive rules of evidence deal with? 6 points

A
  • veracity
  • propensity
  • hearsay
  • opinion
  • identification
  • improperly obtained evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

Hearsay rule

A

A hearsay statement is not admissible except:

When provided by the provisions of any other act and it is relevant

64
Q

What is the general admissibility of hearsay evidence

A

It is admissible when the circumstances of the statement provide reasonable assurance the statement is reliable

And

The maker of the statement is unavailable or the Judge considers locating the witness would cause undue expense or delay

65
Q

Issues with Reliability of hearsay

A

The maker of the statement is unable to be called as a witness and be cross examined

Unable to view the demeanour of the statement maker

Repetition of the original statement may cause inaccuracy’s

66
Q

The conduct of a Jury trial (9 Steps)

A
  • a jury is empanalled and foreperson selected
  • prosecutions opening address
  • prosecutions case presented
  • the defence opening address
  • defence case presented
  • prosecution makes a closing statement
  • defence makes a closing statement
  • judge sums up
  • jury retires to decide a verdict
67
Q

What happens with Persons under and over 12 giving evidence?

A
  • 12 years of age and older must take the oath or affirmation before giving evidence
  • under 12 years must be explained by the Judge the importance of telling the truth and must make a promise to tell the truth
68
Q

What may a judge give warning of during a trial

A
  • the way evidence is given
  • a warning about evidence maybe unreliable
  • a warning about lies
69
Q

Type of Expert evidence that’s admissible

A

Expert evidence may consist of:

  • facts
  • opinions
  • mixture of the two

to assist a fact finder to understand.

70
Q

What is an expert

A

A person who is a specialist knowledge or skill based on training, study or experience.

71
Q

Why is some evidence inadmissible?

A
  • lack of reliability
  • lack of fairness
  • lack of public interest

Or a combination of all three

72
Q

General exclusion rule of evidence

A

The judge must exclude evidence if it will have an unfair prejudicial effect on the proceeding or needlessly prolong the proceeding

73
Q

Explain the presumptions of law and give an example

A

Inferences that have been expressly drawn by law from particular facts and can be conclusive or rebuttable.

(Example being that a child under 10 can’t be convicted)

74
Q

Explain a presumption of fact and give an example

A

Presumptions of facts are simply logical inferences

Example is one person thinks the other has guilty knowledge because they are in possession of recently stolen good

75
Q

How to determine admissibility of evidence

A

It is admissible if it can be legally received by the court.

If it can’t be legally received it is inadmissible

76
Q

List 4 factors when considering if evidence is admissible

A
  • relevance
  • reliability
  • unfairness
  • public interest
77
Q

When is evidence relevant

A

Evidence is relevant when it has a tendency to prove or disprove anything that is of consequence in the proceeding

78
Q

Explain privilege information in regard to Minister of religion

A

A person has a privileged in respect of any communication had with the minister of religion if the conversation was made in confidence and made seeking spiritual advice, benefit or comfort.

A minister of religion is a person that has a status within the church or other religious community

79
Q

When does privilege apply regarding information obtained by medical practitioners

A

Applies when a person is examined by a medical practitioner for drug dependency or any other condition or behaviour that may manifest criminal conduct

Does not apply when a court order has been issued by a judge to submit to a procedure

80
Q

Explain the protection of journalists sources

A

Where a promise Is made not to disclose an informants identity, no questions should be answered or any documents produced that would identify the informant.

81
Q

Can you refresh a witnesses memory in court?

A

Yes, so long as the document was created by the witness or by a person on behalf of the witness in his or her presence

Eg statements or briefs of evidence

82
Q

Explain the previous consistent statement rule

A

A previous statement from a witness that is consistent with the witnesses evidence is admissible if:

  • The statement responds to a challenge
  • forms an important part of the events before the court
  • consists of the mere fact a criminal complaint has been made
83
Q

When will the duty to cross examine arise

A
  • dealing with significant matters that are relevant and in issue
  • the matters contradict the witness evidence
  • the witness is in a position to give admissible evidence on the matters
84
Q

What are inappropriate questions

A

The judge may disallow or indicate a witness does not need to answer a question if it is :

  • improper
  • unfair
  • misleading
  • repetitive
  • too complicated for the witness in the circumstances
85
Q

What factors should be considered around whether a question is unacceptable .,,

A
  • age or maturity
  • impairment
  • cultural background
  • nature of the proceeding
  • hypothetical questions
86
Q

Difference between a hostile and unfavourable witness

A

A witness that does not come up to brief would be likely unfavourable for the part calling them, however they may not be considered hostile, just inconsistent.

87
Q

2 purposes of cross examination

A
  • to illicit supportive information
  • to challenge the accuracy of information provided
88
Q

When are leading questions permitted .. 4 situations

A
  • to direct the witnesses attention
  • to jog a witnesses memory
  • to assist in eliciting information from young persons or people with limited English or intelligence
  • with a hostile witness
89
Q

Types of Questions that can be asked of hostile witnesses

A

If a witness is displaying active hostility they may be asked:

  • leading questions
  • probing questions
  • asking questions regarding previous inconsistent statements
  • challenges of veracity
90
Q

What is a hostile witness

A
  • exhibits a lack of veracity when giving evidence
  • evidence is inconsistent to a previous statement
  • refuses to answer questions and is misleading
91
Q

List three people that can comment on a persons decision to silence at their trial

A
  1. Defendant
  2. Defendants council
  3. Judge
92
Q

What is the purpose of evidence in chief

A

To illicit testimony that supports the case of the party calling the witness

93
Q

Why are leading questions not prohibited? (Why doesn’t the court like Leading Questions..)

A
  • Tendency for people to agree by saying yes
  • it is illicit if answers wanted and makes less genuine
  • Leading questions lead to construction or manipulation of the evidence
94
Q

Evidence given by children …

A

Should be treated the same as adults except with children the Judge CANT give warnings about the corroboration of the evidence like they would with adults and CANT comment on the need to scrutinise he child’s evidence

95
Q

How do you address a Judge?

A

“Your honour” or “sir/ma’am”

96
Q

What are the limits on re-examination of witnesses ..

A

A witness can be cross examined on evidence, following the cross examination can be further examined by the person calling the witness on what resulted from he cross examination.

Special permission is required from the Judge to question on a new matter

97
Q

Explain evidence in rebuttal and recalling witnesses

A

Is evidence called by either parter after the completion of their case and can only be admitted with leave of the court.

  • relates to a formal matter
  • is a matter relating to the conduct of defence
  • was not available or admissible before the closure of the prosecution case.
  • admitted for the interests of justice
98
Q

6 Judicial warnings to a Jury

A
  • evidence may be unreliable
  • certain ways of giving evidence
  • warning about lies
  • directions about child’s evidence
  • warnings about identification evidence
  • delayed complaints or failure to complain I sex cases
99
Q

What are facts in issue?

A

Facts in issue are those which the prosecution must prove in order to establish the elements of the offence, or those which the defendant must prove in order to succeed with a defence in respect of which, he or she carries the burden of proof.

100
Q

What was held in Woolmington v DPP?

A

In the case of Woolmington v Director of Public Prosecutions, it was held that the prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

101
Q

Explain the difference between the terms “beyond reasonable doubt” and on the “balance of probabilities”.

A

Beyond reasonable doubt is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict.

Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.

102
Q

What are the six objectives of the Evidence Act 2006 as set out in s6?

A

The purpose of the Act is to help secure the just determination of proceedings by:

− logical rules

− Recognise the importance of the New Zealand Bill of Rights Act 1990

− promoting fairness to all parties

− protecting confidentiality and other important public interests

− avoiding unjustifiable expense and delay

− enhancing access to the law of evidence.

103
Q

What are the two ways in which unfairness usually arises and may result in the exclusion of evidence?

A
  • unfairly prejudicial in the proceeding.
  • where it has been obtained in circumstances that would make its admission against the defendant unfair.

The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

104
Q

Specific restrictions aside, if evidence is admitted, for what purposes can it be used?

A

Once evidence is admitted, it can generally be used for all purposes: “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all”

105
Q

What is the propensity rule of evidence?

A

Propensity evidence means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but does not include evidence of an act or omission that is:

− one of the elements of the offence for which the person is being tried, or
− the cause of action in the proceeding in question.

106
Q

What is the definition of a hearsay statement in the Evidence Act 2006?

A

Under the Act, a hearsay statement is defined as (s4): “a statement that –

(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”

107
Q

Define an “expert” under s4 of the Evidence Act 2006.

A

Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill, based on training, study or experience”.

108
Q

When would a communication with a legal adviser be ‘privileged’?

A

A communication with a legal adviser would be privileged when:

(a) The communication must be intended to be confidential.

(b) The communication must be made for the purposes of obtaining or giving legal services.

109
Q

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations.

A

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply.

(a) The associated defendant is being tried separately from the defendant; or

(b) The proceeding against the associated defendant has been determined.

110
Q

What is the meaning of self-incrimination under s4 of the Evidence Act 2006?

A

Self-incrimination is the providing of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence”

111
Q

What types of offences are considered by law to require corroboration?

A

There are two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction. These are:

− perjury and related offences (ss108, 110 and 111 Crimes Act), and

− treason (s73 Crimes Act).

112
Q

What is the role of a judge in a trial by jury?

A

When a judge is presiding over a trial by jury, his or her role is to:

− decide all questions concerning the admissibility of evidence

− determine whether there is any evidence that is fit to be submitted to the jury for its consideration

− explain and enforce the general principles of law applying to the point at issue

− instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

113
Q

Define “leading question” under s4 of the Evidence Act 2006.

A

A leading question is one that directly or indirectly suggests a particular answer to the question.

114
Q

What is the purpose of cross-examination?

A

There are two purposes of cross-examination: − to elicit information supporting the case of the party conducting the cross-examination − to challenge the accuracy of the testimony given in evidence-in-chief, for example, by casting doubt on the witness’s veracity, or by eliciting contradictory testimony.

115
Q

Definition of Relevance and Facts in Issue?

A

Evidence is relevant “If it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (S7(3) of the Evidence Act 2006).

Facts in Issue are those which:
• the prosecution must prove to establish the elements of the offence, or
• the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof

116
Q

Giving evidence may be given in what ways?

A

• In the ordinary way - either orally in a courtroom in the presence of a judge, jury, parties to the proceeding, counsel, and members of the public allowed by the judge.

• In an alternative way - in the courtroom but unable to see the defendant or other person outside the courtroom or by video recording made before the hearing.

• In any other way - provided for by the Evidence Act 2006 or any other relevant enactment.

117
Q

Definition of Hearsay statement

A

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

118
Q

Definition of Veracity

A

Veracity - This is the disposition of a person to refrain from lying, whether generally or in a proceeding.

119
Q

Definition of propensity

A

Propensity - Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.

120
Q

Definition of direct evidence

A

Direct Evidence - This is any evidence given by a witness as to a fact in issue that he or she has seen heard or otherwise experienced.

121
Q

Definition on circumstantial evidence

A

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

122
Q

Woolmington Principle: Presumption of innocence?

A

The fundamental principle in criminal law is the presumption of innocence, known as the woolmington principle. This principle establishes that subject to specific statutory exceptions the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence. It is not a burden of proof.

123
Q

Exceptions to principle that burden of proof is on the prosecution?

A

There are exceptions to the general principle of burden of proof which means that in some cases it reverses and falls on the defendant including where:

• The accused wishes to rely on the defence of insanity.
• Specific statutory exceptions exist.
• S67(8) of the Summary Proceedings Act 1957 applies.

124
Q

Beyond Reasonable Doubt?

A

The courts have traditionally been reluctant to provide any detailed or precise meaning of ‘Beyond Reasonable Doubt’ the stance of the Court of Appeal being that ‘reasonable doubt’ means what it says’.

125
Q

Definition of Balance of Probabilities

A

It must simply show that it is more probable than not.

126
Q

What’s the purpose of the evidence act law?

A

a. facts to be established by the application of logical rules

b. providing rules of evidence that recognize the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990

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.

127
Q

What is Judicial Notice?

A

When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

128
Q

What is Presumptions of law

A

Presumptions of Law are inferences that have been expressly drawn by law

Presumptions of law may be either conclusive or rebuttable.

129
Q

What are presumptions of fact

A

Presumptions of fact are those that the mind naturally and logistically draws from the given facts. For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

130
Q

Court Refers to four principles

A

• Relevance
• Reliability
• Unfairness
• Public Interest

131
Q

Define material relevance

A

Materiality asks whether the evidence in the case is offered on a matter or a fact at issue

132
Q

Define probative relevance

A

whether the evidence has a logical tendency to prove or disprove

133
Q

General exclusion rules for evidence

A

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding.

• Evidence may still be excluded where it has been obtained in circumstances that would make its admission against the accused unfair.

The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods.

134
Q

Voir Dire

A

A closed chambers hearing held in regards to the admissibility of evidence where the jury is excluded.

135
Q

The exclusive rules of evidence deal with (6 things):

A
  • Veracity
  • Propensity
  • Hearsay
  • Opinion
  • Identification
  • Improperly obtained evidence
136
Q

What a judge must consider when propensity evidence is offered about a witness

A

a. A previous lack of veracity when under a legal obligation to tell the truth

b. that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity

c. any previous inconsistent statements made by the person

d. Bias on the part of the person

e. a motive to be untruthful.

137
Q

When may the prosecution offer evidence on a defendant’s veracity?

A

a. The defendant has offered evidence about his or her own veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue

And

b. the Judge permits the prosecution to do so.

138
Q

Define propensity evidence

A

propensity evidence means evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved:

but does not include evidence of an act or omission that is

• 1 of the elements of the offence for which the person is being tried or
• the cause of action in the proceeding in question.

139
Q

Define hearsay statement

A

a hearsay statement is a spoken or written assertion by a person of any matter 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.
Statement means S4

A statement can also be non verbal conduct of a person that is intended by that person as an assertion of any matter.

140
Q

5 reasons a person is unavailable as a witness

A
  1. Is dead
  2. is not in New Zealand
  3. is unfit due to age or physical or mental condition
  4. cannot be identified or found
  5. is not compellable to give evidence.
141
Q

Rule against opinion evidence

A

• Where a witness offers a bare opinion it holds little probative weight
• There is a danger that a witness offering opinion evidence could confuse the tribunal of facts and prolong proceedings
• generally opinion evidence would be inadmissible unless used to help the fact finder understand the witnesses evidence of why they saw, heard or perceived.

142
Q

Define an expert and expert opinion evidence

A

An expert is person who has specialized knowledge or skill based on training, study or experience.

Expert opinion evidence may be admissible so long as it was made by an expert with the intention of helping the fact finder understand or ascertain any fact in the proceeding

143
Q

Who is compellable as a witness in court

A

All people are eligible and compellable as a witness if they are lawfully able to give evidence on behalf of both prosecution and defence.

Once a witness has entered the witness box and been sworn they are under obligation to answer all questions put to them.

144
Q

What is privilege and 8 types

A

the right to refuse to disclose or to prevent disclosure

• Communications with legal advisors
• Solicitors trust accoungts
• Preparatory materials for proceedings
• Settlement negotiations or mediation
• Communications with ministers of religion
• Information obtained by medical practitioners and clinical psychologists
• Privilege against self incrimination
• Informer privilege

145
Q

4 offences where corroboration is necessary

A

a. perjury and
b. false oaths
c. false statements or declarations and
d. treason

146
Q

Judges role in trial by jury

A

• decide all questions concerning the admissibility of evidence
• explain and enforce the general principles of law applying to the point at issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

147
Q

The prohibition on leading questions

A

The Evidence Act 2006 defines a leading question as one that directly or indirectly suggest a particular answer to the question.
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:
• There is natural tendency for people to agree with suggestions put to them by saying ‘Yes’ even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious, or otherwise between counsel and witness.

148
Q

When leading questions are permitted

A

a. the question relates to introductory or undisputed matters

b. the question is put with the consent of all other parties

c. the Judge in exercise of the Judges discretion allows the question.

149
Q

Can a witness refresh their memory in court?

A

Yes with permission from the judge they may review documents/notes made by them at the time their memory was fresh in relation to the evidence given.

150
Q

Detail the Previous consistent statements rule

A

A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

151
Q

What can be asked of a hostile witness?

A

• Asking leading questions
• Asking questions designed to probe the accuracy of memory and perception
• Asking questions as to prior inconsistency statements and
• Other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is substantially helpful in assessing the witness’s veracity).

152
Q

Define a hostile witness

A

• Exhibits a lack of veracity

exhibits or appears to exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be expected to have knowledge of

• inconsistent evidence

gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness or

• refuses to answer questions or deliberately withholds evidence (This does not include a complete refusal to give evidence as such a person would not be a witness).

153
Q

Purpose of cross examination

A
  1. To elicit information supporting the case of the party conducting the cross examination
  2. To challenge the accuracy of the testimony given in evidence in chief ( for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).
154
Q

In any proceeding, the Judge may disallow, or direct that witness is not obliged to answer any question that the Judge considers:

A
  • improper
  • unfair
  • misleading
  • needlessly
  • repetitive
  • too complicated for the witness to understand.
155
Q

Explain Evidence in Rebuttal

A

Evidence called by either party after the completion of their own case in order to rebut something arising during the trial can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence;

• relates to a purely formal matter

• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)

• was not available or admissible before the prosecution’s case was closed

• is required to be admitted in the interests of justice for any other reason.

156
Q

Judicial Warnings a judge may give to the jury

A

judicial warning that evidence may be unreliable

• judicial directions about certain ways of giving evidence

• judicial warnings about lies

• judicial directions about children’s evidence

• judicial warnings about identification evidence

• delayed complaints or failure to complain in sexual cases

157
Q

Judges warnings for children giving evidence

A

the Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of a warning had the complainant been an adult.

the Judge must not, unless expert evidence is given in that proceeding supporting the giving of the following direction or the making of the following comment:
o (a)instruct the jury that there is a need to scrutinise the evidence of children generally with special care; or
o (b)suggest to the jury that children generally have tendencies to invent or distort.

Evidence (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions