evidence

Question 1

Where the onus falls on the defence to prove a particular element, the standard of proof required is?
A. on the balance of probabilities
B. no more than to raise a doubt
C. beyond reasonable doubt
D. beyond a shadow of doubt

Answer 1

A - On the balance of probabilities

Question 2

Circumstantial evidence has been defined as?

Answer 2

does not directly prove any fact in issue, but allows inferences about the existence of those facts to be drawn

Question 3

Once the judge has granted an application to treat a witness as hostile that witness may be?

Answer 3

Asked leading questions
Questions as to prior inconsistent statements
Tested on such matters as the accuracy of his/her memory and perception

Question 4

The general purpose of the examination in chief is to?

Answer 4

Elicit testimony that supports the case of the party calling that witness.

Question 5

Before giving evidence in court a witness may refresh there memories from?

Answer 5

Either their original statement or their disposition.

Question 6

Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding.

Answer 6

Any person who is eligible to give evidence is compellable.

Question 7

A person is unavailable as a witness when?

Answer 7

The person s overseas and can’t be contacted.

Question 8

A presumption of law/fact?

Answer 8

May be rebuttable or irrefutable

Question 9

When giving your evidence in court you should address the judge as?

Answer 9

Your Honour or sir/madam

Question 10

The court has discretion to include propensity evidence against a defendant if?

Answer 10

The probative value of the evidence outweighs its prejudicial effect

Question 11

In relation to privilege or medical practitioners, “protected communication’ refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient.

Answer 11

Who is suffering drug dependency
Who has another condition or behaviour that manifests itself in criminal conduct.

Question 12

A witness is deemed to be hostile when?

Answer 12

They refuse to answer questions or deliberately withholds evidence.

Question 13

It is not necessary in court to prove uncontroverted facts. These are admitted as?

Answer 13

Judicial Notice

Question 14

Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence.
If the evidence given is opinion evidence then in order to comply with section 25 the opinion must?

Answer 14

A. Be that of an expert
B. comprise of expect evidence
C. Offer substantial help to the fact finder in understanding other evidence of ascertaining any fact in the proceeding.
D. All of the above.

D. All of the above

Question 15

Circumstantial evidence has been defined as?

Answer 15

A fact that from inference can prove another fact in issue.

Question 16

What is the general rule in relation to establishing facts?

Answer 16

All facts in issue and facts relevant to the issue must be proved by evidence.

Question 17

It is not necessary in court to prove facts such as that the season of summer in NZ is over the persiod of December to February.

These facts are admitted as?

Answer 17

Judicial Notice

Question 18

A witness can be required to give evidence if?

Answer 18

They are lawfully able to give evidence on behalf of both prosecutions and defence.

Question 19

What is the definition of relevance?

Answer 19

Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of proceedings
S7 (3) EA06

Question 20

facts in issue are?

Answer 20

Those which the prosecution must prove to establish the elements of the offence or,

Those the defendant must prove to succeed with a defence in respect of which he or she carries the burden of proof.

Question 21

What is the definition of a ‘witness’?

Answer 21

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

Question 22

Evidence may be given in what ways?

Answer 22

Ordinary way - Orally in the presence of a…judge, jury, parties to the proceedings counsel, and members of the public allowed by the judge

An alternative way - by video recording before court proceedings or by video link from another location

Any other way - provided for the the Evidence Act 2006 or any other relevant enactment

Question 23

What is the definition of Veracity?

Answer 23

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

Question 24

What its the definition of ‘direct evidence’?

Answer 24

Evidence given by a witness as to a fact in issues that he or she has seen, heard or otherwise perceived.

Question 25

What is the definition or ‘circumstantial evidence’

Answer 25

Evidence of circumstances that do no directly prove any fact in issue but which allows inference about the existence of those facts to be drawn

Question 26

What is the definition of corroboration?

Answer 26

Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged (not defined in the Act).

Question 27

What is the Woolmington Principle - Presumption of Innocence

Answer 27

This principle establishes that subject to specific statutory exemptions, 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

Question 28

Exceptions to the principle that burden of proof is on prosecution

Answer 28

In some cases the burden of proof reserves and fall on the defendant such as:
Examples:
Defence of insanity 23(1) CA61
Specific Statutory exemptions - i.e. 202A weapon
Under age sex cases - under 16 s134 CA61

Question 29

Described ‘ beyond reasonable doubt’ and include relevant case law.

Answer 29

In R v Wanhalla, the court defined reasonable doubt as: an honest and logical uncertainty to the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.

Question 30

Standard of proof required by the defence

Answer 30

must be a reasonable degree of probability.

Question 31

What is the purpose of the Evidence Act

Answer 31

The purpose of the act is to help secure the just determination of proceedings by:
1 - providing for facts to be established by the application of logical rules, and
2 - proving rules of evidence that recognise the importance of the rights affirmed by the NZ BOR Act 1990, and
3 - promoting fairness to parties and witness, and
4 - protecting rights of confidentially and other important public interests, and
5 - Avoiding unjustifiable expense and delay, and
6 - Enhancing access to the law of evidence.

Question 32

What is judicial notice?

Answer 32

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.

Question 33

What are presumptions, and name 2 types

Answer 33

presumptions are where no direct evidence is offered or obtainable

2 types:
- presumptions of law
- presumptions of fact

Question 34

Whats is the justification for the rule under sections 14 and 25.

Answer 34

24 - witness may state an opinion in evidence f that opinion is necessary to communicate, or for the fact finder to understand, what the witness heard, saw or otherwise perceived.

25 - Expert opinion evidence is admissible i the fact finder is likely to obtain substantial help form the opinion to understand other evidence or in ascertaining any fact that is of consequence to the detriment of the proceeding.

Question 35

What are the 2 exceptions in relation to the admissibility of hearsay evidence.

Answer 35

section 18
- the statement is reliable, and
- the maker of the statements is unavailable as witness, and undue expense or delay would be caused if witness were required

Question 36

What are the restrictions on Commenting on defendants silence and the fact he/she did not give evidence at their trial

Answer 36

Section 33
No person other than the defendants, defendants counsel or the judge may comment on this fact.

Question 37

What are the principle when deciding whether evidence is admissible?

Answer 37

Relevance
Reliability
Unfairness
Public Interest

Question 38

The test for relevance can be broken down into what 2 ‘prongs’

Answer 38

Materiality - asks whether the evidence offered is on a matter or a fact in issue that is of consequence to the determination of the process.

Probativeness - asks whether the evidence has logical tendency to prove or disprove the material proposition on which it is offered.

Question 39

Evidence can be relevant and yet admissible because it is unfair. In what 2 ways does it arise?

Answer 39

If it would have some unfair prejudice in the proceedings

If it has been obtained in circumstances that would make its admission against the accused unfair.

Question 40

Section 15 of the EA 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Answer 40

governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Question 41

describe the process often used to determine whether such evidence is admissible and what that evidence is often referred to?

Answer 41

A hearing called a Voir Dire

This is where the jury is excluded from the courtroom for the duration of the admissibility hearing.
Facts determined at a Voir Dire are sometimes referred to as preliminary facts.

Question 42

Most of the laws of evidence concern the things that cannot be given in evidence, also known as the exclusive rules.

What are the rules of evidence?

Answer 42

HORP VII

Hearsay
Opinion
Relevance
Propensity
Veracity
Identification
Improperly obtained evidence.

Question 43

In deciding for the purpose of subsection 1, whether or not the evidence proposed to be offered about the veracity of a person is substantially helpful, the judge may consider amongst the other matters whether the proposed evidence tends to show 1 or more of the following matters:

Answer 43

A - Lack of veracity when under legal obligation to tell the truth ( earlier proceedings or a signed declaration)
B - Convictions of offences showing a propensity for dishonesty or lack of veracity
C - previous inconsistent statements
D - Bias
C - A motive to be untruthful.

Question 44

The prosecution in a criminal proceeding may offer evidence about a defendants veracity only if ?

Answer 44

A - The defendant has offered evidence about his 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.

Question 45

Propensity Evidence means:

Answer 45

Evidence that tends to show a person propensity to act inn a certain 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 for.
The cause of action in the proceedings in question.

Question 46

Under the act a Hearsay statement is defined as?

Answer 46

Was made by a person other than the witness.
Is offered in evidence at the proceeding to prove the truth of its contents

Question 47

Circumstances in relation to a statement by a person who is not a witness include?

Answer 47

1. The nature and content of the statement
2. The circumstances that relate to the making of the statement and
3. Any circumstance that related to the veracity of the person and
4. Any circumstantial that relate to the accuracy of observation of the person.

Question 48

What circumstance can a witness be unavailable?

Answer 48

1. are dead
2. outside NZ and is not reasonably practical to be a witness, or
3. is unfit because of age, physical or mental condition, or
4. Is not compel able.

Question 49

What are the rules against giving opinion evidence?

Answer 49

Where a witness offers a bare opinion, it holds little probative weight.

There is a danger that a witness offering opinion evidence will usurp (take over) the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence.

The opinion could confuse the tribunal of facts and prolong the proceedings

A witness’s opinion evidence may be based on other evidence which if stated expressly would be inadmissible (eg. opinion based largely on propensity).

Question 50

If evidence is expert opinion evidence, in order to comply with s25 the opinion must?

Answer 50

• Be that of an expert
• Comprise expert evidence and,
• Offers substantial help the the fact finder in understanding other evidence or ascertaining any fact that is of consequence in the proceedings.

Question 51

Define an expert witness

Answer 51

Specialised knowledge or skill, based on study, training and experience
Qualified through formal study, training, experience
Required to demonstrate to the court, they have the requite qualification to be deemed an expert in the field in question.
Evidence offered should be within the area of expertise

Question 52

Discuss the eligibility and compellability of witnesses to give evidence

Answer 52

Eligible if awfully able to give evidence on behalf of both the prosecution and defence.

Are Compellable if they can be required to give evidence against their will for both prosecution and defence

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

Question 53

What are the privileges where a person cannot be compelled to give certain evidence to a court proceeding

Answer 53

A privilege is the right to refuse to disclose what would otherwise be admissible,
Those privilege are outlined in the EA2006 include:
Communications with legal advisers
solicitors trust accounts
preparatory material for proceedings
communications with ministers of religion
Information obtained by medical practitioners and psychologists
Self-incrimination
informers
settlement negations or mediation

Question 54

Discuss privilege in relation to information obtained by a solicitor from a client?

Answer 54

• Communication must be intended to be confidential
• Communication must be made for the purpose of obtaining or giving legal services (including authorised representatives)
• The privilege is vested with the person seeking legal services but it can be waived
• The privilege does not extend to communications made for any dishonest purpose or to enable anyone to commit and offence.
• Provided that the communication was intended to be confidential the fact that it was overheard does not mean those who heard it can give that evidence.

Question 55

What are the privileges in regards to preparing for a proceeding

Answer 55

1 - Communication or information made, received, complied or prepared for the primary purpose of preparing for a proceeding.

2 - A person has a privilege if they are , on reasonable grounds contemplating becoming a party to the proceeding.

Question 56

It is not necessary in a criminal proceeding for the evidence of which the prosecution relies to be corroborated except with respect to the offences of

Answer 56

A. Perjury
B. False Oaths
C. False statements
D. Treason

Independent evidence that tends to confirm or support some fact which other evidence is given and implicates the accused in the crime charged.

Question 57

Witnesses who are 12 years of age or under must take and oath or affirmation before giving evidence (s77) - must

Answer 57

A. be informed by the judge of the importance of telling the truth and not telling lies and,
B. Make a promise to tell the truth before giving evidence.

Question 58

The Prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons?

Answer 58

There is a natural tendency for a person 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.

The EA2006 defines a leading question as one that directly or indirectly suggest a particular answer to the question.

Question 59

In any proceeding a leading question must not be put to a witness in examination in chief or re-examination in chief unless?

Answer 59

The question relates to introductory or undisputed matters, or
The question is put with the consent of all other parties, or
The judge in the exercise of the Judges Discretion allows the question.

Question 60

If a witness wishes to consult a document while giving evidence, the following conditions are designed to ensure so far as possible the accuracy of the document must be satisfied.

Answer 60

Judges leave must be obtained

The document must be shown to every other party in the proceedings

S90(5) requires the document to have been made at a time when the witnesses memory was fresh. This depends on the individual circumstances.

Question 61

Explain the previous consistent statement rule.

Answer 61

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 claim of recent invention on the part of the witness.

Question 62

Cross examination questions once the judge has granted the witness as being hostile are?

Answer 62

R v VAGAIA - There is no rule that restricts a party from calling a witness that is hostile to that party.
This may include:
Asking leading questions
Asking questions designed to probe the accuracy of memory and perception
Asking questions as to prior inconsistent statements and
Other challenges to veracity including evidence from other witnesses ( provided that any evidence offered, is substantially helpful in assessing the witnesses veracity.

Question 63

What is a hostile witness defined as or mean?

Answer 63

They exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness or about the matter which the witness may reasonably be supposed to have knowledge or,
Gives evidence that is inconsistent with a statement made by a witness, in a manner that exhibits an intention to be unhelpful to the party who called the witness.
Refuses to answer questions or deliberately withholds evidence (this does not include a complete refusal to give evidence as such, as a person who would not be a witness.

Question 64

There are 2 purposes for cross examination, what are they?

Answer 64

1 - To elicit information supporting the case of the party conduction 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)

Question 65

In any proceeding the judge may disallow or direct that a witness is not obliged to answer any question that the judge considers?

Answer 65

Improper
Misleading
Unfair
Needlessly repetitive
Expressed in language too complicated for the witness to understand

Question 66

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 leave of the court.
Such leave can be given to the prosecution if the further evidence relates to what?

Answer 66

Relates to a purely formal matter
Relates to a matter arising from 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 admitted before the prosecution’s case was closed
Is required to be admitted in the interests of justice for any other reason

Question 67

List the types of judicial warning from the judge

Answer 67

About lies
Children Evidence
Delayed complaints or failure to complain in sexual cases
Identification evidence
Certain ways of giving evidence
Evidence may be unreliable

Question 68

Discuss the judges warning for children

Answer 68

The judge must NOT give any warnings to the jury about the absence of corroboration of the evidence or the complaint if the judge would not have given that kind of warning had the complainant been an adult.

Question 69

A witness can be cross examined as to prior inconsistent statements, such statements include

Answer 69

Written witness statements
Oral statements - recorded in police notebooks or jobsheets

Question 70

S96

Answer 70

1 - a party who cross examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness at the time if, the time, place and other circumstances concerning the making of the statement are adequately identified to the witness.

2. The witness does not admit, then the fact finder must show them the statement document.

Question 71

what is the difference between beyond reasonable doubt and on the balance of probabilities?

Answer 71

BRD - is the standard of proof required for the prosecution to prove the case. The jury must be satisfied of guilt.

BOP - Is the standard of proof for the defence, it must carry a reasonable degree of probability.

Question 72

what are 2 ways which unfairness arises and may result in an exclusion of a statement?

Answer 72

If the statement is obtained in an unfair way

If the statement is not relevant.

Question 73

If evidence is admitted, for what purpose can it be used?

Answer 73

Once evidence is admitted it can generally be used for all purposes or is not admissible at all.

Question 74

An associated defendant is not compellable to give evidence for or against a defendant unless 2 situations apply, What are they?

Answer 74

1. Being tried separately
2. proceedings against the associated defendant has been determined.

Question 75

What is the meaning of self incrimination under s4 of the EA06

Answer 75

The provision by the person of information that could reasonably lead to or increase the likelihood of the prosecution of that person for a criminal offence/

Question 76

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

Answer 76

• Decide all questions concerning the admissibility of evidence.
• Determine whether any evidence is fit to be submitted to the jury for consideration
• Explain and enforce the general principle 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.

Question 77

What is a leading question

Answer 77

one that directly or indirectly suggests a particular answer to the question

Question 78

What is the s8 test

Answer 78

The balancing of probative value of evidence against the risk that it will:

• Have an unfairly prejudicial effect on the proceeding
• Needlessly prolong the proceeding

Question 79

The judge must exclude the evidence if the probative value is outweighed by the risk.

What are the two exceptions to the general prohibition of previous consistent statements (s35)

Answer 79

A previous consistent statement that is consistent with the witnesses evidence, is admissible to the extent that is necessary to respond to challenge of the witnesses veracity or accuracy based on previous inconsistent statement, or

A claim of recent invention on the part of the witness (R v HART)

Question 80

s125(1)
Does a judge have to give a warning?

Answer 80

No - a judge must not give a warning to the jury about the absence of corroboration of evidence if that type of warning would not have been given had the complaint been an adult.

Question 81

Name 4 types of evidence under s122(2) where a judge must consider giving a warning that the evidence may not be reliable.

Answer 81

1. Hearsay evidence
2. A statement by the defendant, if that evidence is the only evidence implicating the defendant
3. Evidence given by a witness who may have a motive to give false evidence prejudicial to the defendant
4. Evidence about the conduct of the defendant alleged to have occurred more than 10 years previously.

Question 82

Define a statement

Answer 82

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

Question 83

Previous consistent statement rule - S 35 (2)(b) and (c)

Answer 83

(b) - forms an integral part of the events before the court

(c) - consists of the mere fact a complaint has been made in a criminal case.

Question 84

What is a presumption of law Inferences that have been expressly drawn by law from particular facts?

Answer 84

Either conclusive or rebuttable.

eg. a child under 10 years old is unable to be convicted