Evidence

Question 1

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

Answer 1

The prosecution

Question 2

Once the basic elements have been proven by the Prosecution, what must defence do?

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

When will propensity evidence about a defendant be admissible?

Answer 18

Where the evidence has a probative value that outweighs any unfairly prejudicial effect on the defendant.

Question 19

What is the the sec8 Criminal Disclosure Act 2008 definition of the meaning of “relevant” under

Answer 19

In this act relevant means:

information or an exhibit, that tends to support or rebut, or has a material bearing on, the case against the defendant.

Question 20

What are three methods that a witness or complainant can give evidence in an alternative way?

Answer 20

While in the court room but unable to see the defendant or some other specified person (screens)

From a place outside the courtroom, either in New Zealand or elsewhere.

By a video record made before the hearing of the proceeding

Question 21

Under section 18 of the Evidence Act 2006 What is the general admissibility of hearsay?

Answer 21

Hearsay statement is admissible in any proceeding if-
The circumstances relating to the statement provide reasonable reassurance that the statement as reliable and either –
- the maker of the statement is unavailable as a witness or

• the judge considers the undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 22

When can a person under 16(2) be unavailable as a witness?

Answer 22

Answer:
A witness is unavailable if the person is —
- Dead, or
- outside New Zealand and it is not reasonably practicable for him/her to be a witness, or
- unfit to be a witness because of age or physical or mental condition, or
- Cannot with reasonable diligence be identified or found, or
- not compellable to give evidence

Question 23

What is the Sec 8 general Exculsion Evidence Act test?

Answer 23

The sec 8 test involves balancing the probative value of evidence against the unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.

Evidence will be admitted if its probative value outweighs the risks.

Question 24

What is admissible evidence?

Answer 24

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

Question 25

What is evidence?

Answer 25

The whole body of material which a court may take into account in reaching their decision.

Evidence may be written, oral or visual.

Question 26

What is a hearsay statement?

Answer 26

A statement made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of it’s contents.

Question 27

How long should initial disclosure occur after the

commencement of proceedings?

Answer 27

Answer:

Generally not later than 15 working days

Question 28

What are the two types of offending — in which the

unsupported evidence of one witness is insufficient to support a conviction. Contrary to sec121 Evidence Act

Answer 28

Perjury and related offences (ss108, 110 and 111 Crimes Act) and Treason (s73 Crimes Act)

Question 29

What is the age of a child complainant?

Answer 29

Under 18 years when the proceeding commences (when the charging document is filed).

Question 30

What is a hostile witness?

Answer 30

A witness called by any party who:
- Refuses to answer questions
deliberately withholds evidence

• A witness who exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a topic they may reasonably be supposed to have knowledge or
• Gives inconsistent evidence against a previous statement or displays an intention to be unhelpful to the party who called the witness

Question 31

What is circumstantial evidence?

Answer 31

Evidence of circumstances that do not directly prove any facts in issue, but which allow inferences about the existence of those facts to be drawn (eg the defendant was seen in the vicinity of a crime).

Question 32

What is the adversarial system?

Answer 32

Answer:
Conduct of criminal trials follow the adversarial or accusatorial system of justice set up through the English common law.

Answer:
-Facts of the case, evidence relevant to those facts emerged by means of questions put by prosecution or defense to witnesses call by them

• It’s up to each party to decide what witnesses to call, the order and the questions they should be asked
• each party has the right to test a testimony of witnesses called by the opposing party through cross-examination
• During the trial the judges function is to ensure the evidence is produced according to the establish rules, ruling if necessary on it’s admissibility
• The defendant does not have to give evidence or do anything to assist prosecution in the presentation of its case.
• The prosecution must prove their case beyond reasonable doubt

Question 33

What is a statement?

Answer 33

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

Question 34

What is an associated defendant?

Answer 34

A person 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.

e.g. A person charged with burglary, both an accomplice who committed the burglary and the person who received the stolen goods would be an associated defendant under Sec 73.

Question 35

What is a witness?

Answer 35

A person who gives evidence and is able to be cross examined.

Question 36

Sec 18 - When is a hearsay statement admissible?

Answer 36

If the circumstances relating to the statement provide reasonable assurance that the statement is reliable and

• The maker of the statement is unavailable as a witness or
• The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

(reliability and unavailability or undue expense or delay)

Question 37

When does full disclosure occur?

Answer 37

Answer:

Full disclosure occurs as soon as practicable after defendant pleads not guilty

Question 38

The Evidence Act 2006 divides what was called “character”evidence in common law into two classes of evidence. What are they?

Answer 38

Answer:
Veracity – deposition to refrain from lying, and
Propensity – tendency to act in a particular way

Question 39

Define prejudicial.

Answer 39

Evidence adverse to a party’s case.

Question 40

Under s74 of the Evidence Act 2006 who are not compellable to give evidence?

Answer 40

Answer:

The sovereign, governor-general, sovereign or head of state of a foreign country are not compellable to give evidence

Question 41

Name 8 grounds under Sec 103 as to reasons why evidence can be given in an alternative way.

Answer 41

Answer:

• FEAR of intimidation
• The AGE or maturity of the witness
• TRAUMA suffered
• ABSENCE or likely absence of the witness from NZ
• LINGUISTIC or cultural background or religious beliefs
• The physical, intellectual, psychological or psychiatric IMPAIRMENT of the witness
• Nature of the EVIDENCE the witness will give
• NATURE of the proceeding

F. A. T. A. L. I. E. N

Question 42

The rules of evidence fall into three main categories, what are they

Answer 42

• how evidence may be given;
• who may give evidence; and
• what type of material may be given in evidence

Question 43

What is the ‘Woolmington Principle’?

Answer 43

The fundamental principle in criminal law is the presumption of innocence.

The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 44

Define probative value of evidence.

Answer 44

The probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case