Daves list Flashcards
Define facts in issue
are those which
The prosecution must prove to establish the elements of the offence
The defendant must prove to succeed with a defence in which they carry the burden of proof.
Define Veracity
The disposition of a person to refrain from lying, generally or in a proceeding
Define witness
A person who gives evidence and is able to be cross examined
Define relevance
Evidence is relevant if it is able to prove or disprove anything that is of consequence in the determination of a proceeding
Define statement
a spoke or written assertion by a person or non verbal conduct by a person intended by that person to be an assertion of any matter.
What is WOOLMINGTON v DPP establish in relation to presumption of innocent
the burden of proof lies with the prosecution to prove all the elements of the offence
The fundamental principle in Criminal Law is the presumption of innocence and that the burden off proof lies with the prosecution, what are 2 exceptions to this rule.
BOD- Beyond reasonable doubt
the standard of proof required by the prosecution to prove its case - satisfy the jury of defendants guilt
BOR- Balance of Probabilities
The standard of proof required by the defence to prove a particular element of the case - carry a reasonable degree of probability ( more probable than not)
what is the purpose of the Evidence of law, 4 examples
Enhancing access to the law of evidence
Protecting the the rights of confidentiality
Providing fairness to parties and witnesses
Avoiding unnecessary costs and delay
What are Presumptions of Law
Inferences that have been expressly drawn by law from particular facts.
eg. a child under 10 can not be convicted.
What are presumption of Fact
Those that the mind naturally and logically draws from the given facts.
Are Simply logical inferences, and are always rebuttable
Explain Judicial Notice
When the court takes Judicial Notice of a fact it declares that is exists and directs the jury to do so.
What are the 4 principles of admisability
Reliability, Relevance, Unfairness, Public Interest
Even though evidence is relevant, it may be excluded it would result in unfairness. What 2 ways could this arise?
May be excluded if it would result in some unfair prejudice in the proceeding
May be excluded if it obtained in an unfair/improper manner.
Section 8 of the EA provides that the judge may excluded evidence if its probative value is outweighed by the risk that the evidence will one of 2 things
- have an unfairly prejudicial effect on the proceeding
- Needlessly prolong the proceeding
list 4 matters the exclusive rules of evidence deal with
Veracity
opinion
hearsay
identification
propensity
List 4 matters a judge may consider in determining whether veracity evidence is substantially helpful in assessing that persons veracity.
- The lack of veracity of the person under legal obligation to tell the truth
- has a conviction of 1 or more dishonesty offences
- previous inconsistent statements
- Has a motive to be untruthful.
What does propensity evidence mean (S40) and what does it excluded?
evidence that tends to show a persons propensity to act in a certain way or have a particular state of mind, being evidence of acts, omissions, events or circumstances which a person is alleged tho have been involved
Excludes:
*1 of the elements of the offence for which the person is being tried or
*The cause of the action in the proceeding in question
Propensity evidence evidence excludes?
1 of the elements of the offence for which they are being tried
the cause of the action in the proceeding in question
Evidence that is solely /mainly about veracity.
A Hearsay statement is defined as? A statement that …
was made is made by a person other than a witness
is offered in evidence to prove the truth of its contents
Why is hearsay Evidence excluded. List 3 reasons for the rule against hearsay
Where the maker of the statement is not called as a witness so can not be cross examined regarding the content
jurors can not evaluate the evidence without being able to see the makers demeanour
There is danger witness make mistakes about the meaning or content.
List 4 reasons a witness may be unavailable
- they are dead
- they are outside NZ and not practical
- unfit due to age or mental condition
- can not be located/identified
General admissibility of Opinion evidence, when may opinion evidence be given
A witness may state an opinion if the opinion is necessary to communicate, or the fact finder to understand what they saw, heard or otherwise observed.
In order to be admissible (opinion) it must fill 2 basic criteria
- must be the only way to effectively communicate the information to the fact finder
- the witness must only state an opinion from something personally observed
If evidence is opinion evidence, in order to comply with S25 (expert Opinion) the opinion must
- Be that on an expert
- comprise of expert evidence
- offer substantial help to the fact finder in understanding the evidence
define expert witness
a person who has specialised knowledge or skill based on training, study or experience.
What does S71 say about eligibility and comparability
In a proceeding any person is eligible to give evidence.
That person who is eligible to give evidence is compellable to give that evidence.
compellability of defendant and associated defendant in proceedings.
A defendant is not compellable for the prosecution or the defence
an associate defendant in not compellable to give evidence against unless
i. the associated defendant is being tried separately
ii. the proceeding against the ass defendant has been determined
What are 5 examples of privilege?
- communication with a legal adviser
- communication with a religious leader
- information obtained by medical practitioners
- preparatory materials for proceedings
- solicitors trust accounts
Limited privilege protecting info obtained by medical practitioners is allowed under S59. Who does it apply to and who does it not?
Applies to a person examined by a Med professional for drug dependency or other condition that may manifest itself in criminal conduct.
Does not apply to a person who has been required/ordered by a judge to undergo an examination.
Privilege against self incrimination, who does it apply to
Applies if a person is required to provide specific information in a proceeding, or a person excising statutory power/duty which would if provided likely incriminate the person under NZ law for an offence punishable by a fine or imprisonment.
What types of evidence may be unreliable, list 4
- hearsay evidence
- evidence of a statement by the defendant , if that is the only evidence implicating the
defendant - evidence of a witness who may have a motive to give false evidence that is prejudicial
- evidence of a statement made by the defendant to a person in prison or other place of detention
does a judge have to give a warning where a child is a witness, if not why?
no a judge is not required to give a warning in a case involving child complaints, where the warning would not have been give had the complaint been an adult.
if you need to refer to you notebook you must.
- ask for permission from the court
- introduce the material properly
- jury and defence are entitled to view the notebook so ensure to seal other entries
- can only use it to refresh your memory not read the whole entry.
o/c witness for a jury trial, parent of child witness ask questions as to the court procedure when making an oath or affirmation, discuss the advice you would provide.
the child must be informed by the judge the importance of telling the truth and not telling lies.
after being given that information the child must make a promise to tell the truth before giving evidence.
Can a witness refresh their memory before court
yes, the witness before giving evidence may read their statement or check their recollection with the interviewing officer
If a witness want to consult a document while giving evidence what conditions must be satisfied
they must seek leave from the judge
the document must be shown to all parties
the document needs to have been made at the time their memory was fresh
If a witness is declared hostile they may be asked question in a cross examination style, list 4 things this may include
may be asked leading questions
asked questions designed to probe the accuracy of memory/perception
asked questions as to prior inconsistent statements
challenges as to their veracity
Define hostile witness
a person who exhibits a lack of veracity when giving evidence that is unfavourable to the party who called them on a matter they should have knowledge about and gives evidence that is inconsistent to statement made by them or refuses to answer questions.
Under S121 it is not necessary in a proceeding for the evidence in which the prosecution relies to be corroborated except in respect to offences of…
perjury
treason,
false oath
false statement
What is the judges role in a proceeding
decide all questions regarding admissibility of evidences
explain and enforce the general principles of law to the point at issue
instruct the jury on the rules of law on which the evidence is to be weighed once submitted.
define leading question
one that directly or indirectly suggests a particular answer
what are 3 reasons leading questions are not generally permitted
- there is a natural tendency for people to agree with suggestions
- counsel asking leading questions to their witness can more early get the answer they
wish to receive - a danger leading questions will result in manipulation/construction of evidence between counsel and witness
previous consistent statements rule, a previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement
responds to a challenge that will be or has been made to the witnesses veracity/accuracy
Exclusionary Rules are?
rules that exclude evidence, usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it.
R v Wanahalla - jury told reasonable doubt is
an honest and reasonable uncertainty left in your mind about the guilt of the defendant after giving careful consideration to all the evidence
Things to verify when a witness is summonsed to court
whether they are allowed to give evidence
whether they are required to give evidence
whether they can refuse to give evidence
what type of witness they will be
under S61, a business record means a document that is made
to comply with a duty or in the course of a business and as a record or part of a record of that business
what are the justifications behind the general exclusionary rule of opinion
- the witnesses bare option holds little probative weight
- danger that the evidence will Take over (usurp) the function of the tribunal of fact
- a witnesses evidence of opinion may be based on other evidence which is would be inadmissible
S85 enables the judge to disallow, or direct witnesses not to answer questions, list 4 types of these questions
- improper
- unfair
- misleading
- repetitive
- expressed in a complicated language
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
