EVIDENCE

Question 1

Define the term ‘evidence’.

Answer 1

“Evidence” may be in oral, written or visual form.

It is the term for the whole body of material, which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.

Question 2

What makes evidence admissible?

Answer 2

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

A judge determines what evidence is admissible, by considering:
- is it relevant?
- is it reliable?
is it fair?

generally for something to be accepted as evidence, it must be deemed both admissible and relevant

Question 3

What makes evidence relevant?

Section 7(3), Evidence Act 2006

Answer 3

Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”

Irrelevant evidence is inadmissible; evidence can be deemed inadmissible in cases where it is deemed to lack flexibility, fairness, and or public interest

Question 4

To what does the term ‘facts in issue’ refer?

Answer 4

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

The facts in issue tend to prove or disprove a fact, and are usually those alleged in the charging document.

Question 5

What are ‘exclusionary rules’?

Answer 5

Rules that exclude evidence, usually because said evidence is unreliable, unduly prejudicial or otherwise unfair to admit it.

Question 6

What is the ‘weight’ of evidence?

Answer 6

The weight of evidence is its value in relation to the facts in issue, or the degree of probative force that can be accorded the evidence.

The weight of evidence will depends on factors such as:

• how relevant the facts are
• the degree to which they are supported or contradicted by other evidence
• the veracity of the witness

Question 7

What are the three ways in which evidence may be given?

Answer 7

1. In the ordinary way - orally in a courtroom, in an affidavit filed in court, or by reading a written statement in a courtroom.
2. 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.
3. In any other way - provided for by the Evidence Act 2006 or any other relevant enactment.

Question 8

Define the term ‘incriminate’.

Define ‘self incriminate’

Answer 8

Section 4.

To provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.

The provision by the defendant of information which could reasonably lead to, or increase likelihood of their own prosecution for a criminal offence

Question 9

Define the term ‘statement’.

Answer 9

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

Question 10

Define the term ‘hearsay statement’ in one sentence.

Answer 10

Section 4 - hearsay statement means 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

Question 11

Define the term ‘veracity’.

Answer 11

The disposition of a person to refrain from lying, whether generally or in a proceeding.

Question 12

Define the term ‘direct evidence’.

Answer 12

Any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced.

IE something seen

Question 13

Define the term ‘circumstantial evidence’.

Answer 13

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

Question 14

What does the Woolmington principle establish?

Answer 14

This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to proving all of the elements of the offence.

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

Exceptions would be insanity defences or strict liability offences.

Question 15

In relation to burden proof, explain the practical obligation on the defence and when it applies

Answer 15

• If the prosecution proves facts from which it can be concluded that the defendant committed the act with the requisite mental element (MR), then the defendant has to produce some story or evidence if he or she wants to suggest the conclusion is wrong.
• ** This is not a burden of proof, because the defendant does not have to prove anything beyond reasonable doubt; they just have to suggest that the conclusion of the Prosecution is wrong, or reasonably doubtful

This practical obligation applies where defendants wish to state that they did not do the act and/or have the necessary mental element, but where they do not wish to put up a particular defence.

Question 16

In what situation would there be an evidential burden on the defence?

Answer 16

If the defendant wishes to put up a defence to the charge they have an evidential burden

The prosecution still has the burden of proof, in that they must destroy the defence put forward - the ultimate question for the Jury is, has the Prosecution proved its case

Question 17

The Woolmington principle establishes that the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence. There are exceptions. List three exceptions.

Answer 17

1. The defence of insanity is claimed
2. Express statutory exceptions exist. Eg, s202A(4)(b), possession of an offensive weapon.
3. the offence is a public welfare regulatory offence / strict liability offence eg drink driving - because once Prosecution has proved the AR, they do not have to prove MR

Question 18

Discuss the difference in the standard of proof required between the prosecution and the defence.

Answer 18

Prosecution = beyond reasonable doubt

Defence = balance of probabilities

R v Wanhalla - the starting point is the presumption of innocence

Question 19

How is the concept of ‘beyond reasonable doubt’ defined in R v Wanhalla?

Answer 19

A reasonable doubt is “an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence”.

BYD is the standard of proof required for the Prosecution to prove its case. It means that jurors must be convinced of the the guilt of the defendant, before they can convict.

Question 20

Define the concept of ‘balance of probabilities’.

Answer 20

BOP means ‘more probable than not’. It is the standard of proof required for the defence to prove an element of their case. Where the defence is required to prove a particular element (eg. insanity) the defence must simply show that it is more probable than not.

If the probabilities are equal, the burden is not discharged.

Question 21

Explain the purpose of the Evidence Act.

Answer 21

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 NZ BOR Act 1990
(c) promoting fairness to parties and witnesses
(d) protecting rights of confidentiality and other important public interests
(e) avoiding unjustifiable delay
(f) enhancing access to the law of evidence.

Rules, Rights, Fairness, Confidentiality, Delays avoided, Access

Evidence must be made up of facts that prove the charge.

Question 22

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence. There are two main exceptions to the general rule. What are they?

Answer 22

When no evidence needs to be given of facts because

• judicial notice is taken
• the facts are formally admitted

Question 23

Explain the concept of judicial notice. Provide an example.

Answer 23

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. Eg. If the date of Christmas were a fact in issue

Accepting that a fact is known or accepted even if evidence about that fact has not been established

Question 24

Which two sections of the Evidence Act 2006 provide for judicial notice and to what do they relate?

Answer 24

s128 - Notice of uncontroverted facts (accepting facts that can’t reasonably be questioned)

s129 - Admission of reliable published documents (accepting facts where the source’s accuracy and reliability cannot be reasonably questioned, eg literature, science, art documents). This is an exception to hearsay, opinion and or expert rules.

Question 25

Explain what ‘facts formally admitted’ are.

Answer 25

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset - so it need not be discussed.

Question 26

What is a presumption of law? Give an example.

Answer 26

An inference that has been expressly drawn by law from particular facts. Eg, a child under 12 years is unable to be convicted.

Question 27

What is a presumption of fact? Give an example.

Answer 27

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

Question 28

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. List three of those principles.

Answer 28

• Relevance
• Reliability
• Unfairness

Question 29

Explain the section 8 test.

Answer 29

Section 8 is about what evidence is fair and where evidence can be excluded. The test involves the Judge balancing the probative value of evidence, against the risk that it will:

• have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)) OR
• “needlessly prolong the proceeding” (s8(1)(b))

In the cases where the evidence is deemed prejudicial, or was gained in an unfair way, it can be excluded

Question 30

What must be taken into account under s8(2)?

Answer 30

“…the right of the defendant to offer an effective defence.”

Question 31

What is provisionally admitted evidence?

Answer 31

Where a question arises concerning the admissibility of evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility. If the other evidence is not forthcoming the provisionally admitted evidence must be excluded from consideration.

Question 32

What is a ‘voir dire’?

Answer 32

A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. These facts are sometimes referred to as ‘preliminary facts’.

The jury is excluded from the court room.

Voir dire is covered in Section 15 of the EA.

Question 33

List five of the things the exclusive rules of evidence deal with.

Answer 33

• Veracity
• Propensity
• Hearsay
• Opinion
• Identification
• Improperly obtained evidence

Question 34

The Evidence Act 2006 divides what was called ‘character’ evidence into two classes of evidence. What are those two classes and how are they defined?

Answer 34

Veracity - a disposition to refrain from lying (S37)
Propensity - a tendency to act in a particular way (S40)

The veracity rule does not apply to evidence about a person’s veracity, where veracity is an element of the offence ie perjury

Veracity and propensity rules to not apply to bail and sentencing hearing unless S44 applies (sexual cases)

Question 35

What is the threshold for veracity evidence to be admissible?

Answer 35

It must be ‘substantially helpful’ in assessing the veracity of the person.

You may only offer evidence about a person’s veracity in a Criminal or Civil proceeding if it is in compliance with Sections 38 and 39 - that is to say, the evidence must be substantially helpful in verifying a person’s veracity, where veracity is an issue

Question 36

In deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the judge may consider what?

Answer 36

(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (eg, in an earlier proceeding or in a signed declaration)
(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 on the part of the person to be untruthful

Question 37

In what two instances are the substantial helpfulness test (tendency to prove / disprove) not sufficient when assessing veracity evidence?

Answer 37

Substantially helpful is a higher threshold than relevant.
The test would not be sufficient
- Where the prosecution wish to offer evidence about a defendant’s veracity
- Where a defendant offers veracity evidence about a co-defendant

Question 38

What does s37(4) say about a party challenging the veracity of their own witness?

Answer 38

A party who calls a witness-

(a) may not offer evidence to challenge that witness’s veracity unless the judge determines the witness to be hostile, but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.

Question 39

What four elements need to be met in order to be able to offer evidence of a defendant’s veracity?

Answer 39

• Prosecution must show that veracity is relevant
• Defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue
• The proposed evidence must meet the substantial helpfulness test
• Prosecution must get permission from the judge to offer the evidence

Question 40

In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account what three factors? (s38(3))

Answer 40

(a) the extent to which the defendant’s veracity, or the veracity of a prosecution witness has been put in issue in a defendant’s evidence
(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence
(c) whether any evidence given by the defendant about veracity was elicited by the prosecution

Question 41

What does propensity evidence include?

Answer 41

(a) …evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind…

This includes evidence of acts, omissions, events and or circumstances the defendant was allegedly involved in

Question 42

What does propensity evidence not include?

Answer 42

(b) does NOT include evidence of an act or omission that is-
(i) one of the ELEMENTS of the offence for which the person is being tried; or
(ii) the CAUSE OF ACTION in the proceeding in question

AND

• evidence that is solely or mainly ABOUT VERACITY

Question 43

The general position is that a party may offer propensity evidence in a criminal or civil proceeding about who?

Answer 43

Any person - with limitations.

The Prosecution may offer propensity evidence about a defendant if it has probative value in relation to the facts in issue, and this value outweighs the prejudicial risk to the defendant.

Question 44

What are the consequences of a defendant offering propensity evidence about himself? (s41(2))

Answer 44

The prosecution or another party may, with the permission of the judge, offer propensity evidence about that defendant.

Question 45

Explain the difference between (propensity evidence) and s8 (general exclusion).

Answer 45

Both centre on whether evidence has an unfairly prejudicial effect, but s43 focuses only on the risk of an unfairly prejudicial effect on the DEFENDANT. s8 focuses on the risk of an unfairly prejudicial effect on the whole PROCEEDING.

Question 46

What must the judge take into account when assessing the probative value of propensity evidence?

What must the judge take into account when assessing the prejudicial risk to the defendant of propensity evidence?

Answer 46

The judge take into account ‘the nature of the issue in dispute’ when assessing the probative value of propensity evidence.

The judge take into account when assessing the prejudicial risk to the defendant of propensity evidence whether the evidence is likely to unfairly put the factfinder (eg jury) against the defendant, and or whether the fact finder will give disproportionate weight to the propensity evidence in reaching a verdict

Question 47

Section 18 - general admissibility of hearsay

This section contains the major exceptions to exclusionary rules on hearsay - what are the criteria for hearsay to be admitted? (3 things)

Answer 47

Section 18(1)
A hearsay statement is admissible in any proceeding if:

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable AND

(b) 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 as a witness.

Question 48

List three reasons for the rule against hearsay.

Answer 48

• Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them
• Juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement
• There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people

Question 49

s16(1) provides a list of matters the court should consider when determining whether the ‘circumstances relating to the statement provide reasonable assurance that the statement is reliable’ (s18 - general admissibility of hearsay).

List five of those matters.

Answer 49

(a) the nature of the statement
(b) the contents of the statement
(c) the circumstances that relate to the making of the statement
(d) any circumstances that relate to the veracity of the person
(e) any circumstances that relate to the accuracy of the observation of the person

Question 50

s16(2) defines what is meant by ‘unavailable as a witness’ in s18. List the situations that make someone unavailable.

Answer 50

(a) dead
(b) outside NZ and it is not reasonably practicable for him or her to be a witness
(c) unfit to be a witness because of age or physical or mental condition
(d) cannot with reasonable diligence be identified or found
(e) not compellable to give evidence

Question 51

s24 outlines the general admissibility of opinions, defined as a statement of opinion to prove or disprove a fact.

In order for an opinion statement to be admissible under s24, what two basic criteria must be fulfilled?

Answer 51

• the opinion must be the only way in which to effectively communicate the information to the fact finder eg jury
• the witness must be stating an opinion from something personally perceived

Question 52

s25 governs the admissibility of expert opinion evidence. In order to comply with s25, the opinion must…

Answer 52

• be that of an expert
• comprise expert evidence
• offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

Question 53

Section 23 relates to opinion rules. What is the notice requirement in s23 in regards to the calling of an expert witness?

Answer 53

If the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report at least 14 days before the date fixed for the trial.

Opinion evidence is only admissible under Sections 24 and 25.

Question 54

Before a person is served with a summons to appear in court, verification must be made as to…(list four things)

Answer 54

• 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

Question 55

What makes a witness eligible to give evidence? (s71)

Answer 55

If they are lawfully able to give evidence on behalf of both prosecution and defence in a civil or criminal proceeding

Any person eligible or compellable to give evidence

Question 56

What makes a witness compellable?

Who cannot be compelled to give evidence?

Answer 56

If they can be required to give evidence against their will for both prosecution and defence.

S74 sets out that a Judge, Governor General, and Soverieigns/Heads of State are not compellable

Question 57

Under s73, an associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding.

There are two exceptions. What are they?

Answer 57

(a) the associated defendant is being tried separately from the defendant, or
(b) the proceeding against the associated defendant has been determined.

Question 58

What is the definition of a privilege?

Answer 58

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.

Question 59

List five types of privileges listed in the Evidence Act 2006.

Answer 59

• communications with legal advisors
• solicitor’s trust accounts
• 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

Question 60

Limited privilege protecting information obtained by medical practitioners and clinical psychologists is allowed for under s59, Evidence Act 2006. To whom does this apply and to whom does it not apply under s59(1)?

Answer 60

(a) applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct, but
(b) does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority, o submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

Question 61

s64 relates to privilege to protect informers. In what situation may this privilege be disallowed by the judge?

Answer 61

An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity. An informer is someone who supplies information about offending to enforcement agents/agencies. This includes UC officers.

However, where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.
or, if the information was given for dishonest purposes

Question 62

Under s121 ‘It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of…

Answer 62

(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason

Question 63

Outline the judge’s role in a jury trial.

Answer 63

• decide on admissibility of evidence
• determine what evidence should be submitted to the jury
• explain and enforce the general principles of law applying to the point of issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 64

The conduct of criminal trials follows the _____ or _____ system of justice developed through the English common law.

Give 4 features of this system

Answer 64

adversarial or accusatorial

• Each party has the right to cross examination
• it is up to each party to decide which witnesses to call, in what order and the questions to be asked of them
• the judge/Jury are not entitled to go beyond the evidence presented
• the Judge may only ask questions of the witness when justice requires it

Question 65

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence. What happens with witnesses under the age of 12?

Answer 65

They must:

• be informed by the judge of the importance of telling the truth and not telling lies, and
• after being given that information, make a promise to tell the truth, before giving evidence

Question 66

How is the term ‘leading question’ defined in s4?

Answer 66

One that directly or indirectly suggests a particular answer to the question.

Question 67

Why is there a prohibition on leading questions?

Answer 67

• There is a 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 answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of evidence through collusion, conscious or otherwise, between counsel and witness.

Question 68

What is the goal of evidence in chief and re-examination?

Answer 68

To draw out the witness’s own recollections and to permit the trier-of-fact to judge the quality of the witness’s testimony.

Question 69

Leading questions are statutorily permitted in evidence in chief in some circumstances. What are those circumstances? (s89(1))

Answer 69

(a) the question relates to introductory or undisputed matters, or
(b) the question is put with the consent of all other parties, or
(c) the Judge, in exercise of the the Judge’s discretion, allows the question

Leading questions are also allowed under a Judge’s discretion where it would jog the witness’s memory, where the witness is very young, and or where the witness is hostile

Question 70

What three conditions must be satisfied for a witness who wishes to consult a document in court?

Answer 70

• The leave of the judge must be obtained
• The document must be shown to every other party in the proceeding
• The document needs to have been ‘made or adopted’ by that witness, and ‘at a time when his or her memory was fresh’.

Document refers to statements, notebooks, briefs of evidence etc

Question 71

Under s35 a previous consistent statement is not admissible. What is the exception?

Answer 71

If 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’.

Question 72

If a witness is declared hostile, the witness may be asked questions in the manner of a cross-examination, to the extent that the judge considers necessary. List four things this may include.

Answer 72

• Asking leading questions
• Asking questions designed to probe the accuracy of memory and perception
• Asking questions as to prior inconsistent statements
• Other challenges to veracity, including evidence from other witnesses (provided it’s substantially helpful)

Question 73

Define hostile witness.

Answer 73

• Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge, or
• 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

Question 74

What are the two purposes of cross-examination?

Answer 74

• 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, eg challenging the witness’s veracity

Question 75

Under s96(1) the duty to cross-examine arises when?

Answer 75

• The cross-examination deals with ‘significant matters’ in the proceeding, and
• The matters are ‘relevant’ and ‘in issue’ in the proceeding, and
• The matters ‘contradict the evidence of the witness’, and
• The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters’

Question 76

Under s85(1), an unacceptable question is any question that the Judge considers…

Answer 76

‘improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand’

In assessing whether a question is unacceptable, the Judge may have regard to the age, culture, impairments of the witness and the nature of the proceeding among other things.

if a Judge deems a question unacceptable, they can disallow it, or direct a witness not to answer it

Question 77

Leave to call evidence in rebuttal may only be given by the court if the further evidence satisfies several conditions. Name four of them.

Answer 77

• 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
• Was not available or admissible before the prosecution’s case was closed
• Is required to be admitted in the interests of justice or for any other reason

Question 78

In what situation must the privilege under s64 (Informers) must be disallowed?

Answer 78

Where there is a prima facie case that the information was given for a dishonest purpose or to enable or aid anyone to commit or plan to commit an offence.

Question 79

Define proceeding

Answer 79

A proceeding conducted in court OR application to court connected with a proceeding

Question 80

Define witness

Answer 80

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

Question 81

Section 38 discusses veracity evidence.

Can a defendant give evidence about their own veracity in criminal court?

Can Police Prosecution offer evidence about a defendant’s veracity?

Answer 81

Can a defendant give evidence about their own veracity?
- YES

Can Police Prosecution offer evidence about a defendant’s veracity?

• ONLY IF
• the defendant has offered evidence about their veracity and or challenged the veracity of a witness other than the facts in issue
• the judge permits the Prosecution to do so

Question 82

Section 38 discusses veracity evidence / evidence of the defendant’s veracity

Can a defendant give evidence about their own veracity in criminal court?

Can Police Prosecution offer evidence about a defendant’s veracity?

Answer 82

Can a defendant give evidence about their own veracity?
- YES

Can Police Prosecution offer evidence about a defendant’s veracity?

• ONLY IF
• the defendant has offered evidence about their veracity and or challenged the veracity of a witness other than the facts in issue
• the judge permits the Prosecution to do so

Question 83

When an expert gives opinion evidence in line with Section 25, what must they demonstrate to the court in terms of their qualifications

Answer 83

The expert must demonstrate to the court that they have the required qualifications, gained through knowledge, skill, study or experience, to be deemed an expert

The expert must state to the court their
-qualifications
-reason for giving opinions
-material relied upon to form said opinion
and
- must not not give opinion outside their area of expertise
- must be impartial / not advocate for any party

S4 - expert means a person who has specialised knowledge or skill based on training, study, or experience

Question 84

Is communication with legal advisors privileged?

Answer 84

Yes, where

• it was intended to be confidential and
• the communication was made as a means of providing or obtaining legal services

It is not privileged if it was made with dishonest purposes

The same applies with religious counsel; if communication is sought or obtained for religious counsel, and was intended to be confidential, it is privileged communication

Question 85

Section 53 sets out the effect and protection where privilege is conferred.

Name 3 of these protections

Answer 85

Where communications are deemed privileged, the defendant can refuse to disclose in proceedings

• the communications
• what information was contained in the communications
• any opinions formed as result of engaging in those communications

Question 86

Under s62(2), what must a person be able to show a judge if they claim privilege against self incrimination in court proceedings

Answer 86

The defendant must offer the Judge sufficient evidence to show that the prospect of self-incrimination is reasonably likely

If a judge believe that the self incrimination is likely, they must be satisfied the defendant is aware of privilege and its effect

Question 87

What must you do if you wish to seek leave to refer to your notebook in a proceeding?

Answer 87

• ask the Court’s permission
• introduce the material
• seal off other entries
• only refresh your memory, only read what you have permission to read

Question 88

Evidence about jury deliberations is not to be disclosed; there is one exception

Answer 88

There is an exception of the Judge is staffed there are exceptional circumstances, so compelling to allow the evidence. the Judge must weigh public interest both in terms of ensuring justice is done, and in protecting the confidentiality of jury deliberations.

Question 89

Section 69 relates to overriding discretion about confidential information

This section allows a Judge to make a directive that certain things not be disclosed during a hearing, name 3

Why would a Judge make such a directive?

Answer 89

• confidential communications
• confidential information
• information that would/could reveal a confidential source of information

A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information, is outweighed by the public interest in preventing harm. They will consider the nature of the info, nature of the proceedings, interest in protecting victims, and harm that may result from disclosure

Question 90

Define corroboration

Answer 90

Independent evidence tending to confirm or support some fact of other evidence given, and implicates the defendant

Question 91

Section 121 deals with corroboration

Does evidence have to be corroborated in criminal proceedings?

Answer 91

Evidence does not have to be corroborated in criminal proceedings, with the exception of the offences of perjury, false statements, treason etc - in these cases, the independent evidence of one witness is not enough to convict, and corroboration is required as a matter of law.

If in a criminal proceeding there is a jury, it is not necessary for the Judge to—

(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.

Question 92

Section 125(1)

In a jury trial where the complainant is a child, can the Judge give the Jury a warning about the absence of corroborating evidence ?

Answer 92

No; if it wouldn’t be done for an adult, there is no difference for a child

Question 93

Give 5 steps in the sequence of a jury trial

Answer 93

• the Jury is empanelled and the Judge gives them opening instructions on their role
• The Crown gives their opening address and the case is presented; they will call witnesses and give the defence opportunity to cross examine
• defence gives their opening address and present their case; they will call witnesses and give Crown the opportunity to cross examine
• Crown and Defence give closing addresses
• The Judge sums up to the Jury before excusing them to deliberate / retiring for a verdict

Question 94

What is the purpose of evidence in chief?

Answer 94

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

Section 84 stipulates that, unless the Act or a Judge directs otherwise, the witness gives evidence in chief, can be cross examined, and can be re-examined

Question 95

Can a witness be recalled or re-examined?

Answer 95

A judge can recall a witness if they consider it in the interests of justice to do so

Crown / Defence can re-examine to clarify an issue but not to raise any other issue, unless with permission of the

Question 96

S122 - Judicial directions about evidence which may be unreliable

If a Judge believes evidence is unreliable, what may they may warn the Jury of?

In what cases must the Judge consider giving such a warning?

Answer 96

If a Judge believes evidence is unreliable, they may warn the Jury of the need for caution - both in their decision to accept the evidence, and in deciding how much weight to accord to the evidence

Section 122(2) stipulates that a Judge must consider warning where:

(a) hearsay evidence:
(b) if the evidence is the only evidence implicating the defendant:
(c) evidence is given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) the statement by the defendant to another person was made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 97

What does R v Hart say about how admissible evidence can be used?

Answer 97

‘the statute proceeds on the basis that, generally speaking, evidence is either admissible for all purposes or it is not to be admissible at all’

Once evidence has been admitted, it can generally be used for any purpose.

Question 98

Define enforcement agency

Answer 98

Refers to NZP or any body / organisation that has a statutory responsibility for the enforcement of any enactment (eg customs, RD, Ministry of Fisheries).

Question 99

What do the rules of evidence determine

Answer 99

The form and means by which evidence may be presented to the courts

They are found in both statutory and case law

Question 100

If a journalist has promised an informant that they will not disclose their identity, can that journalist or the employer be compelled to answer questions or produce documents in court that would reveal / disclose the ID of the informant?

Answer 100

Section 68

NO, unless a High Court Judge orders it based on public interest