Evidence

Question 1

Regarding the burden of proof, on which side does this lay?

Answer 1

The prosecution

Question 2

What about the evidential burden?

Answer 2

Once the basic elements of an offence have been proved, it is up to the defence to point to some evidence that suggests an explanation

Question 3

What is the standard of proof when it lies with the prosecution?

Answer 3

Beyond reasonable doubt

Question 4

What is the standard of proof when an evidential burden lies with the defence?

Answer 4

Balance of probabilities

Question 5

Explain R v Wanhalla and how it relates to beyond reasonable doubt

Answer 5

This relates to there being a very high standard of proof which is met only when the accused is sure of being guilty

Question 6

Define what constitutes a ‘reasonable doubt’

Answer 6

An honest and reasonable uncertainty left in one’s mind about the guilt of the accused after one has given careful and impartial consideration to all of the evidence.

Question 7

What is the Wanhalla principle?

Answer 7

• The rationale of proof, namely the presumption of innocence
• The fact that it is not enough for the Crown to convince the fact finder of probable guilt
• The description of what a reasonable doubt is

Question 8

What is ‘beyond reasonable doubt’?

Answer 8

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.

Question 9

What is ‘the balance of probabilities’ and which side does this burden of proof lie with?

Answer 9

It lies with the defence.

The ‘balance of probabilities’ is simply, ‘It is more probable than not’.

Question 10

Which sections of the Evidence Act reference corroboration and what should a judge do if they are of the opinion uncorroborated evidence may be unreliable?

Answer 10

S121 and 122 - the judge may warn the jury of the need for caution

Question 11

What is veracity?

Answer 11

Disposition to refrain from lying

Question 12

What is propensity?

Answer 12

The tendancy 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

Question 13

Which sections control evidence of propensity?

Answer 13

S40-43

Question 14

Describe the general rule about propensity evidence

Answer 14

A party may offer propensity evidence about ANY PERSON, however -
It may only be offered in accordance with S41-43; and -
S44 - in sexual cases

(Also refer S7 - relevance and S8 - general exclusion)

Question 15

Why would a defendant offer evidence of disreputable conduct in relation to propensity?

Answer 15

As a tactical reason eg, the burglar being tried for sexual offending who has never sexually offended

Question 16

Which section refers to offering evidence of a good propensity and what would the object be?

Answer 16

S41 - by offering evidence of propensity to act in a good fashion it opens the door to rebut evidence and prevents the jury from forming the wrong impression

Question 17

List three things a judge must do when the prosecution offers propensity evidence about a defendant.

Answer 17

They must:

1. IDENTIFY the relevance of the evidence,
2. OUTLINE the competing position of the parties.
3. WARN the jury against illegitimate reasoning processes.

Question 18

What is probative value?

Answer 18

How strongly and centrally the evidence assists in proving or disproving issues in a case.

Question 19

Describe how the probative value of prejudicial evidence would allow it to be admissible in court

Answer 19

S43 - the 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.

• All probative evidence WILL BE PREJUDICIAL; the test is concerned with illegitimate prejudice.
• The onus is on the prosecution to satisfy the court that the probative value outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 20

List how probative value is assessed.

FOR MENSA

Answer 20

FOR MENSA = Frequency/cOnnected/similaRity/

nuMber/pEople/collusioN/SimilAr

43(3)(a) - the Frequency of acts demonstrating the defendant’s propensity increases the probative value of the evidence.

43(3)(b) - how closely cOnnected in time are the propensity acts to the current alleged offending.

43(4)(c) - the similaRity between previous acts and those currently alleged.

43(4)(d) - the nuMber of pEople making allegations against the defendant.

43(3)(e) - whether allegations may be the result of collusioN or suggestibility.

43(3)(f) - do the acts share SimilAr unusual features?

Question 21

S44 - evidence of sexual experience in complaints in sexual cases

Answer 21

The permission of the judge is required before any evidence may be given or questions put to a complainant regarding his or her sexual experience with anyone other than the defendant

Question 22

What is hearsay?

Answer 22

A statement made by a person OTHER THAN A WITNESS, and is offered in evidence at the proceeding to PROVE THE TRUTH OF ITS CONTENTS.

Question 23

What is a statement?

Answer 23

• A spoken or written assertion by a person of any matter

- Non verbal conduct of a person that is intended by that person as an assertion of any matter

Question 24

Is an unintended assertion by a witness a statement?

Answer 24

No. The definition of a statement does not include a statement or non-verbal conduct that is not intended to be an assertion.

Question 25

Are out-of-court statements by a witness who is available to be cross examined excluded?

Answer 25

No if the witness is available to be cross examined.

Question 26

What is the focus of the hearsay rule?

Answer 26

The purpose for which the evidence is offered rather than just the fact that the statement was made out-of-court.

Question 27

Would a statement offered to show merely that the statement was made be subject to the hearsay rule?

Answer 27

No.

Question 28

What are the main exceptions to the hearsay rule? (S18)

Answer 28

The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and either - (i) the maker of the statement is unavailable as a witness; or - (ii) the judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness (This section is subject to S20 and 22)

Question 29

What are the two criteria for hearsay being admissible?

Answer 29

1. Reliability. | 2. Unavailability.

Question 30

Outline the rationale of the hearsay rule?

Answer 30

- The lack of reliability of hearsay evidence. - Where the witness is not called, there is no opportunity to cross examine them regarding its contents, the circumstances in which it was made etc. - The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement in question. - There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people.

Question 31

What is the reason for the hearsay rule's existence?

Answer 31

To prevent attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 32

What is the focus of 18(1)(a)? | Hearsay admissible if ...

Answer 32

The reliability of the hearsay statement itself, NOT the PERSON who intends to give the hearsay evidence. It is a threshold test for admissibility. The reference to “reasonable assurance” of reliability means that the evidence must be reliable enough for the fact finder to consider it, and draw its own conclusions as to the weight to be placed on the evidence.

Question 33

Regarding S18(1), what CIRCUMSTANCES would have to exist for a hearsay statement to be considered reliable? (S16 - circumstances) (NARKO)

Answer 33

Nature/Accuracy/veRacity/ maKing/cOntents - Nature - witnessed/oral/signed etc - Accuracy - Any circumstances that relate to the accuracy of the observation of the person - veRacity - Any circumstances that relate to the veracity of the person - maKing - The circumstances that relate to the making of the statement - physical environment/how long after the event the statement refers to/what the relationship was between the maker and the witness - cOntents - the contents of the statement

Question 34

What are some formats that a statement may take for it to be considered reliable?

Answer 34

Whether it is written, oral, signed, witnessed, first-hand

Question 35

List what is considered to be unavailable.

Answer 35

- dead - outside NZ - unfit to be a witness due to age/mental condition etc - cannot with reasonable diligence be identified or found - not compellable

Question 36

List good reasons for not following a formal identification procedure (Section 45) PICNIC-O

Answer 36

Part/sIngular/Change/ aNtIcipate/Chance/Offence - A refusal of the suspect to take Part in the procedure - The sIngular appearance of the suspect - A substantial Change in the appearance of the suspect after the alleged offence occurred and before it was practical to hold a formal procedure - No officer involved could reasonable aNticIpate that ID would be an issue at the trial of the defendant - ID had been made to police after a Chance meeting b/w victim and offender - ID made soon after Offence occurred and in course of officer's initial investigation

Question 37

Which rule of evidence applies to S 46 - voice identification evidence? Balance of probabilities or beyond reasonable doubt?

Answer 37

Balance of probabilities

Question 38

If no formal procedure is followed for having completed a visual ID with a witness, what rule of evidence applies to make it admissible?

Answer 38

Beyond reasonable doubt

Question 39

What rule of evidence applies to voice ID to have it admitted as evidence?

Answer 39

Balance of probabilities

Question 40

What is the Woolmington principle?

Answer 40

The presumption of innocence

Question 41

Who does the burden of proof lie with?

Answer 41

The prosecution in relation to all the elements of the offence

Question 42

What is the exception to the Woolmington principle?

Answer 42

The defence of insanity - the defence must prove, beyond reasonable doubt, that the defendant was insane at the time the offence was committed.