Evidence

Question 1

What is the definition of evidence

Answer 1

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.
Evidence may be oral written or visual

Question 2

Define admissable evidence

Answer 2

If it is legally able to be received by a court

Question 3

Define relevance

Answer 3

If it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding (s7(3) EA 2006)

Question 4

What are facts in issue?

Answer 4

Facts which in law need to be proven to succeed with the case. Facts relevant to the facts in issue tend to prove to disprove a fact in issue
-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

Question 5

What are exclusionary rules?

Answer 5

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

Question 6

What does weight mean in relation to weight of evidence?

Answer 6

The degree of probative force that can be given to the evidence

Question 7

What is weight of evidence?

Answer 7

It’s value in relation to the facts at issue. The value will depends on lots of things such as;
-the extent to which, if accepted, it is directly relevant to or conclusions be of, those facts
-the extent to which it is supported or contradicted by other evidence provided
-the veracity of the witness

Question 8

Define witness

Answer 8

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

Question 9

What is veracity?

Answer 9

This is the disposition of a person to refrain from lying, whether generally or in a proceeding

Question 10

Define propensity

Answer 10

Evidence about a person’s propensity to act in a particular way or have a particular state of mind and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 11

Define direct evidence

Answer 11

Any evidence given by a witness as to a fact at issue that he or she has seen, heard or otherwise experienced. E.g. an eye witness who states that she saw the defendant stab the complaining with a knife

Question 12

Define circumstantial evidence

Answer 12

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 e.g. being seen in the vicinity of the crime

Question 13

Define enforcement agency

Answer 13

Nzp or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including NZ Customs, ministry of fisheries and IRD

Question 14

Define offer evidence

Answer 14

Evidence must be elicited before it is offered. Just putting a proposition to a witness is not offering evidence; it become so when the witness accepts the proposition. Offering evidence includes eliciting evidence by cross examination of a witness called by another party

Question 15

Define giving evidence

Answer 15

Giving evidence is included in offering evidence, a witness gives evidence ; a party offers evidence
A party who testifies but the gives and offers evidence

Question 16

What ways can someone give evidence?

Answer 16

Orally in a courtroom
An affidavit filed in court or by reading a statement if prosecutions and defence consent and it is the personal statement of the deponent or maker
AVL
Behind a screen
Video recording
Any other way provided by EA 2006 or any other enactment

Question 17

Define incriminate

Answer 17

Provide Information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence

Question 18

Define proceeding

Answer 18

Proceeding conducted by a court, and any application to a court connected with a proceeding

Question 19

Define statement

Answer 19

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 20

What is a hearsay statement?

Answer 20

a Statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents

Question 21

What is the Woolmington principal?

Answer 21

The presumption of innocence. Subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 22

What are some limitations of the Woolmington principal

Answer 22

The defence of insanity
The burden of proof is reversed
Practical obligation
Evidential burden
Or the Woolmington principal may be seen simply not to apply

Question 23

What is a practical obligation on the defence?

Answer 23

If the prosection proves facts from which it can be concluded that the defendant committed the act with the required mental element then the defendant has to produce some story or evidence if they want to suggest the conclusion is wrong or they did not do the act or have the necessary mental element. This is not a burden of proof, the defendant does not have to prove anything. This applies when the defendant wishes to state that they did not do the act or have the means Rea but where they don’t wish to put up a particular defence.

Question 24

What is evidential burden on defence?

Answer 24

When the defendant wishes to put up a defence to a charge this creates evidential burden on them to prove that defence . The prosecution is under no obligation to negate all possible defences.

Question 25

Where the onus falls on the defence to prove a particular element, the standard of proof required is?

Answer 25

On the balance of probabilities

Question 26

Circumstantial evidence has been defined as

Answer 26

A fact that by inference can prove another fact in issue

Question 27

Once the judge has granted an application to treat a witness as hostile, that witness may be:
Q
1: asked leading questions
2: questions as prior inconsistent statements
3: asked any question whatsoever whether relevant to the matter under enquiry or not
4: tested on such matters as the accuracy of his/her memory and perception

Answer 27

1,2 and 4 only are correct

Question 28

What is the meaning of veracity?

Answer 28

A disposition to refrain from lying

Question 29

What is the general purpose of the evidence-in-chief is to?

Answer 29

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

Question 30

Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offence:

Answer 30

False oaths

Question 31

When is a witness eligible to give evidence?

Answer 31

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

Question 32

Which is not an example where judicial notice can be taken?

Answer 32

The date of birth of a complainant under 16 (weird)

Question 33

An oath and affirmation may be taken by?

Answer 33

Any witness 12 years and over involved in a proceeding

Question 34

What must an expert witness demonstrate when they give evidence?

Answer 34

That they have the qualifications to be deemed an expert

Question 35

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

Answer 35

The fundamental principle in criminal law is the presumption of innocence, known as the Woolmington principal. This principle establishes that, subject to specific statutory exceptions, the burden of proof clearly lies with the prosecution in relation to all the elements of the offence

Question 36

What is the definition of a hostile witness?

Answer 36

-exhibits or appears to exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonable be supposed to have knowledge OR
-give 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 37

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

Answer 37

Public interest
Unfairness
Reliability
Relevance

Question 38

What is a leading question?

Answer 38

A leading question as in that directly or indirectly suggests a particular answer to the question

Question 39

What is the general rule in relation to leading questions?

Answer 39

Leading questions may not be asked during examination-in-chief or re-examination

Question 40

Briefly explain what a voir dire is?

Answer 40

A hearing where evidence is given by a witness to prove the fact necessary for deciding whether some other evidence should be admitted in a proceeding
-it is conducted without a jury present

Question 41

What is burden of proof?

Answer 41

-Whoever asserts something must prove it
-In criminal cases the burden of proof is on the crown. All that the defendant needs to do is raise doubt as to their guilt
-In a criminal case the prosecution must prove every essential ingredient of the offence beyond reasonable doubt

Question 42

List four categories of privilege

Answer 42

Professional confidence
Public policy
Police informant
Privilege against self incrimination
Marital privilege?

Question 43

Before giving evidence in court how can a witness refresh their memory?

Answer 43

Their original statement
Their deposition

Question 44

Who is eligible and compellable to give evidence?

Answer 44

Any person who is eligible to give evidence is compellable

Question 45

What is an example of being unavailable as a witness?

Answer 45

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

Question 46

What is a presumption of law?

Answer 46

are inferences that have been expressly drawn by law from particular facts , may be rebuttable or conclusive

Question 47

How do you address the judge in court?

Answer 47

Your honor or sir/maam

Question 48

When does the court had discretion to include propensity evidence against a defendant

Answer 48

When the probative value outweighs the prejudicial effect

Question 49

In relation to privilege of medical practitioners , “protected communication” refers to communication made by the patient to the doctor for them to examine, treat or act for the patient in what two circumstances?

Answer 49

Who is suffering a drug dependency
Who has any other condition or behaviour that manifests itself in criminal conduct

Question 50

What are uncontroversial facts admitted as?

Answer 50

Judicial notice

Question 51

Section 25 of the EA governs admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must….

Answer 51

Be that of an expert
Comprise expert evidence
Offer substantial help to the fact finder in understanding other evidence of ascertaining any fact in the proceeding

Question 52

The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with prosecution. What are the two exceptions to this rule?

Answer 52

There are exceptions to the general principle , which means in some cases burden of proof reverses and falls on the defendant
-where there exist specific statutory exceptions
-where section 67(8) of the summary proceedings act 1957 applies

Question 53

What is the two prong test for relevance of evidence?

Answer 53

Materiality asks whether the evidence if offered on a matter of fact at issue in the case of consequence to the determination of the proceeding
- probativeness asks whether the evidence has a logical tendency to prove or disprove the material proposition on which it is offered

Question 54

In relation to section 37, veracity rules, what does a judge need to take into account?

Answer 54

-Lack of veracity on the part of the person when under a legal obligation to tell the truth
-That the person has been convicted of one or more offences that indicate a propensity for dishonesty or lack of veracity
-Bias on the part of the person
-Any previous inconsistent statements made by the person
-A motive in the part of the person to be untruthful

Question 55

What are presumptions of facts

Answer 55

Presumptions of fact are those that the mind naturally and logically draw from the facts given

Question 56

What is an example of offences that ‘sit outside’ the Woolmington Principal?

Answer 56

Public Welfare Offences, where the purpose is to regulate everyday conduct having a tendency to endanger the public or sections of the public. These are strict liability offences where there is no need to prove a mens rea.

Question 57

What are the exceptions for burden of proof?

Answer 57

The defence of Insanity
Statutory exceptions such as, possession of an offensive weapon where prima facie the circumstances show an intent to cause harm. The defendant can show they are innocent with a defence of not having the required intent

Question 58

What is the burden of poof on prosecutions?

Answer 58

Beyond Reasonable Doubt

Question 59

What was held in the case of R V Walhalla in regards to reasonable doubt?

Answer 59

That a reasonable doubt is ‘an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful consideation to all of the evidence’.

Question 60

What was held in relation to presumption of innocence in R V Walhalla

Answer 60

The starting point is presumption of innocence. You must treat the accused as innocent until the Crown has proved their guilt. The presumption of innocence means the accused does not have to give or call any evidence and does not have to establish their innocence.

Question 61

What does the Crown need to do to prove something beyond reasonable doubt?

Answer 61

If at the end of the case you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty. On the other hand it is virtually impossible to prove anything to an absolute certainty and the Crown does not have to do so.

Question 62

What is reasonable doubt?

Answer 62

an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence

Question 63

How does the defence prove something on the balance of probabilities?

Answer 63

It must simply show that it is more probable than not, if the probabilities are equal, the burden is not discharged.

Question 64

What do the rules of evidence determine?

Answer 64

The form in which, and the means by which, evidence may be presented to the Court. They are to be found both in specific statutory provisions and in case law.

Question 65

What was held in Woolmington V DPP?

Answer 65

That the prosecution has a duty to prove the prisoners guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence

Question 66

What are the objectives of the Evidence Act?

Answer 66

Aims to help secure just determination of proceedings by;
-Providing for facts to be established by application of logical rules
-Promoting fairness to parties/witnesses
-Avoiding unjustifiable expense and delay
-Enhancing access to law of evidence

Question 67

What makes good evidence?

Answer 67

Establish what you are tying to prove. Facts must prove elements of the charge and evidence should be made up of facts proving the charge. General rule that all facts in issue and facts relevant to issue must be proved.

Question 68

What is the general rule about facts, exceptions and presumptions?

Answer 68

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

Question 69

What are the two main exceptions to the general rule when no evidence needs to be given of facts :

Answer 69

-Judicial Notice is taken
-The facts are formally admitted

Question 70

What is judicial notice?

Answer 70

Declaring that a facts exist even though no evidence has been established that the facts exist.

Question 71

Define presumption of law

Answer 71

Presumptions of law are inferences that have been expressly drawn by law from particular facts. Presumptions of law may be conclusive or rebuttable.

Question 72

What is an example of conclusive and irrebuttable Presumption of law and a rebuttable presumption of law

Answer 72

Conclusive and irrebuttable is that a 10 year old can’t be convicted of an offence.
Rebuttable is that someone is innocent until proven guilty

Question 73

What is presumption of facts?

Answer 73

presumptions of facts are those that the mind naturally and logically draws from the given facts. For example, one presumes that someone in possession of recently stolen goods has guilty knowledge.
All presumptions of facts are rebuttable

Question 74

How is evidence determined admissible?

Answer 74

When deciding it is considered if the evidence is relevant, reliable and unfair.
Any evidence in which an individual juror might rely on in reaching a conclusion as to guilt is admissible.

Question 75

When is relevant evidence not admissible?

Answer 75

-If it is inadmissible under this Act or any other Act OR
-Excluded under this act or any other act
-Not relevant

Question 76

What is an example of evidence that is relevant but inadmissible?

Answer 76

Evidence that has been improperly obtained

Question 77

Generally speaking why would evidence be excluded or ruled inadmissible? (Principals of evidence Law)

Answer 77

A lack of ;
-reliability
-Fairness
-Public Interest
OR a combination of these

Question 78

What are the two ways unfairness is decided by the trial judge?

Answer 78

-If it would result in some unfair prejudice in the proceeding
-Where evidence has been obtained in circumstances that would make its admission against the defendant unfair. e.g. a confession obtained by unfair or improper methods

Question 79

When MUST the judge exclude evidence? (S8)

Answer 79

If its probative value is outweighed by the risk that the evidence will;
-Have an unfairly prejudicial effect on the proceeding OR
-Needlessly prolong the proceeding

Question 80

When a Judge determines whether the probative value of the evidence is outweighed by the risk that the evidence will have an unfairly prejudicial Effect on the criminal proceedings, what must the judge take into account?

Answer 80

The defendants right to offer an effective defence

Question 81

Can a judge decline to admit evidence if both prosecution and defence agree to the admission of the evidence?

Answer 81

yes

Question 82

Section 14 of the evidence Act?

Answer 82

Where a questions arises concerning the admissibility of any evidence the judge MAY admit the evidence, subject to further evidence being offered later which establishes its admissibility. If the other evidence doesn’t establish the admissibility the Judge MUST exclude the original evidence.

Question 83

Section 15 of the Evidence Act

Answer 83

Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted. This is commonly referred to as a ‘Hearing in Chambers’ or Chambers hearing’ because the Jury will be excluded during the admissibility hearing

Question 84

What are some examples where the Evidence Act limits the use of evidence?

Answer 84

S27 - Which controls the use of pre-trial statements of defendants and co-defendants
S31 - Which forbids the prosecution from relying on certain evidence offered by defendants in criminal cases
S32 - Which forbids the fact-finder from using a criminal defendants pre-trial silence as evidence of guilt.

Question 85

For facts to be received as evidence they must be….

Answer 85

relevant, reliable, fair and admissible

Question 86

What is relevant evidence?

Answer 86

Any evidence that tends to prove or disprove anything that is consequence to the determination of the proceeding

Question 87

What does section 8 set out?

Answer 87

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

The judge must take into account the right of the defendant to offer an effective defence when weighing up probative value

Question 88

What does the section 8 test involve?

Answer 88

Balancing the probative value of the evidence against te risk hat it will have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding

Question 89

Specific restrictions aside, if evidence is admitted, for what purposes can it be used?

Answer 89

It can be used for all purposes. the statute proceeds on the basis that generally speakin evidence is either admissible for all purposes or it is not admissible at all R V HART.

Question 90

What was held in R V GWAZE?

Answer 90

That rules of admissibility, icluding s7 ad 8 are rules of law and are not matters of descretion.

Question 91

What are the two classes of character evidence?

Answer 91

Veracity and propensity

Question 92

When do veracity and propensity not apply?

Answer 92

Veracity does not apply to evidence about a persons veracity if the veracity is an element of the offence which a person is being tried (E.g. Perjury)
Propensty and veracity don’t apply to bail or sentencing hearings except when the evidence is covered by S44 (Where is relates directly or indirectly to the complaints sexual experience with any one other than the defendant).

Question 93

What are things the judge considers when thinking about the veracity of evidence offered?

Answer 93

-The lack of veracity on the part of the person when under legal obligation to tell the truth ( For example in an earlier proceeding or signed declaration)
-That the person has been convicted of one or more offences that indiccate a propensiy for dishonesty or lack of veracity
-Any previous inconsistent statements made by the person
-Bias on the part of the person
-Motive on the part of the person to be untruthful

Question 94

When prosecution or defence call a witness can they offer evidence to challenege the witnesses veracity?

Answer 94

No, if they call the witness they can only chalenege the witnesses veracity if the witness is declared hostile by the Judge BUT
They may offer evidence as to the facts at issue contrary to the evidence of that witness

Question 95

When will veracity evidence be admissible?

Answer 95

Only when it is substantially helpful in assessing the veracity of the person.

Question 96

What are two instances where substantial helpfulness is not admissible?

Answer 96

Where prosecution wish to offer evidence about a defendants veracity AND
Where a defendant offers evidence about a co-defendants veracity

Question 97

How ma a judge decide if veracity evidence is sunstantially helpful?

Answer 97

The judge may consider Section 37 (3) (a) - (e)

The lack of veracity on the part of the person when under legal obligation to tell the truth ( For example in an earlier proceeding or signed declaration)
-That the person has been convicted of one or more offences that indiccate a propensiy for dishonesty or lack of veracity
-Any previous inconsistent statements made by the person
-Bias on the part of the person
-Motive on the part of the person to be untruthful

Question 98

What was suggested in R V K about veracity?

Answer 98

someones reputation for veracity is potentially admissible under section 37, but the substantial helpfulness threshold will only be met in exceptional cases.

Question 99

What does propensity mean?

Answer 99

Propensity is evidence tht shows a persons propensity to act in a particular way or have a particular state of mind

Question 100

What does propensity exclude?

Answer 100

Evidence of an act or omission that is one of the elements of the offence for which the person is being tried.
Evidence that is solely or mainly about veracity

Question 101

When can a defendant offer evidence about their veracity?

Answer 101

provided it meets the substantial helpfulness test set out in section 37.

Question 102

When can the prosecution offer evidence as to the defendants veracity?

Answer 102

-With permission from the judge
-The proposed evidence meets the substantial helpfulness test
-If its relevant, the defendants veracity has to be in issue.
-The defendant has offered evidence about their own veracity or has challenged the veracity of a prosecution witness by referencing other matters than the facts at issue (The defendant must have orchastrated this evidence)

Question 103

What may the Judge take into accoutn when deciding whether to give permission to the prosecution to question the defendant about their own veracity?

Answer 103

-The extent to which the defendants veracity, or the veracity of a prosecution witness has been put in issue in the defendants evidence
-The time that has elapsed since any conviction about which the proscution seeks to give evidence
-Whether any evidence any evidence about veracity was elicited by the prosecution

Question 104

When can the proseution not offer evidence as to the veracity of the defendant?

Answer 104

If an attack on the prosecutions witness’s veracity was in reference to the factin issue

Question 105

What it the general rule about propensity?

Answer 105

That a party may offer propensity about any person. This is subject to rules about restrictions on propensity in relation to defendants and victims of sexual violence

Question 106

Under section 41, What type of propensity evidence can a defendant offer up about themselves?

Answer 106

-Good character evidence
-Evidence of Disreputable conduct about them self
-Neutral propensity such as attending a class every Tuesday so as to provide an alibi.

Question 107

Under section 41, What type of propensity evidence can a defendant offer up about themselves?

Answer 107

Can be offered through witnesses or direct evidence from them self.

-Good character evidence
-Evidence of Disreputable conduct about them self
-Neutral propensity such as attending a class every Tuesday so as to provide an alibi.

Question 108

Under section 41, what happens if the defendant offers propensity evidence for themselves?

Answer 108

They open up to prosecution, with permission of the judge, giving propensity evidence about that defendant.

Question 109

Under R v Rei what are the three requirements for the admission of propensity evidence?

Answer 109

-Evidence must be propensity evidence
-Have a probative value in relation to an issue in dispute including those outlined in 43(3)
- The probative value outweighs the risk of it having a prejudicial effect on the defendant

Question 110

Under section 43 what does the judge need to consider when deciding the prejudicial effects of the evidence?

Answer 110

The judge MUST consider;
-Whether the evidence is likely to unfairly predispose the fact-finder against only the defendant
-The fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions

Question 111

In relation to section 43, who is the onus on to prove the probative value outweighs the prejudicial effect on the defendant?

Answer 111

Prosecutions

Question 112

What should the Court focus on when considering section 43? (Propensity evidence offered by prosection about defendants)

Answer 112

As in Mohamed v R, “We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law.The Act substantially codified that case law and it is preferable, and consistent with s10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.”

Question 113

What is prior acquittal evidence?

Answer 113

The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence

Question 114

When assessing the probative value of evidence, what MUST the judge take into consideration ?

Answer 114

The nature of the issue in dispute.

Once the judge has considered the nature of the issue in dispute under s43(2), he or she may consider the non-exhaustive list of issues in s43(3). Other matters not listed may be considered, such as the strength of other evidence of the defendant’s guilt. The matters listed reflect the fact that the propensity evidence must have some relevance to the facts in issue over and above merely showing that the defendant has a propensity to do bad things. They reflect issues that have aided the assessment of probative value in previous cases.

Question 115

If a witness gives hearsay evidence about another witness that is available to be cross examined, what happens?

Answer 115

This is not hearsay. If a witness is able to be cross-examined the hearsay rule is no longer in play.

Question 116

What is an unintended assertion?

Answer 116

The definition of “statement” does not include a statement or non-verbal conduct that is not intended to be an assertion. For example, if an experienced seaman checked over a yacht before taking his family on it, this may imply that the vessel was seaworthy. Under previous law, such an implied assertion would have been likely to have been seen as hearsay. Now, unless it was clear that the man intended to assert that the yacht was seaworthy, it will not be a statement and will not be hearsay.

Question 117

What is the focus of the hearsay rule?

Answer 117

The purpose for which the evidence is offered rather than just the fact it is an out-of-court statement.A statement offered for some other purpose, for example merely to show that the statement was made, is not a hearsay statement and need not meet the hearsay admissibility test in s18 of the Evidence Act 2006.

Question 118

Under section 18, General admissibility of hearsay, what are the two criteria?

Answer 118

• reliability, AND
• unavailability, or that “undue expense or delay would be caused”.

The notice requirement in s22 of the Evidence Act 2006 must also be met before a hearsay statement can be admitted.

Question 119

What are the three points about the rationale around the reliability rule for hearsay evidence?

Answer 119

-No opportunity for cross-examination
-Juries can’t see the demeanour of the person who made the statement
-Witness giving the evidence getting it wrong, Chinese whispers

Question 120

What does the reliability test focus on?

Answer 120

the reliability of the hearsay statement itself, not the person giving it.

Question 121

What does reasonable assurance of reliability mean?

Answer 121

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 122

What factors should the court consider when determining whether the “circumstances relating to the statement provide reasonable assurance that the statement is reliable”

Answer 122

Section 16(1) Evidence Act 2006 defines “circumstances”:
circumstances, in relation to a statement by a person who is not a witness, include—
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person

Question 123

What was said in R v GWAZE in relation to the definition of circumstances for the purpose of hearsay evidence?

Answer 123

“[The] definition of “circumstances” for the purpose of hearsay evidence makes it clear that the inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement,
- but also the nature and contents of the statement, and the circumstances relating to its making.”

Question 124

What is an example of someone who cannot be compelled to testify?

Answer 124

The defendant in a criminal case
The Sovereign.
They are considered unavailable for the purposes of the hearsay rule.

Question 125

What does section 16(3) say about witnesses who are unavailable?

Answer 125

Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

Question 126

When will a business document be admitted as hearsay evidence?

Answer 126

-When the person who supplied the information is unavailable OR
-the judge considers no useful purpose would be served by requiring that person to be a witness
-the Judge considers that undue expense or delay would be caused if that person were required to be a witness.

Question 127

For section 19 (Business hearsay evidence), is there a requirement of reasonable assurance that the statement is reliable?

Answer 127

No, however any challenge to the reliability of the statement may still affect the weight accorded to the evidence, or may lead to exclusion under s8.

Question 128

What notice needs to be given when intending to admit hearsay evidence?

Answer 128

-Intention to offer the hearsay evidence AND-
-Name of the maker of the statement AND
-if made orally, the contents of the statement AND
-the circumstances relating to the statement that provide reasonable assurance that the statement is reliable;
-why the document is a business record;
-why the person is unavailable as a witness;
-why undue expense or delay

-

Question 129

What is the definition of opinion?

Answer 129

A statement of opinion that tends to prove or disprove a fact

Question 130

Under section 42, general admissibility of opinions, what are the two basic criteria?

Answer 130

• opinion must be the only way in which to effectively communicate the information to the finder of fact,
• the witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 131

What will an accepted non-expert opinion usually comprised of?

Answer 131

In general, non-expert opinion evidence will be accepted where the perceptions and statements of fact of the witness are conclusions in themselves, or where there is a mixture of inference and fact that cannot be separated.

Question 132

What must expert opinion evidence contain as per section 25?

Answer 132

• be that of an “expert”
• comprise “expert evidence”, and
• offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.

Question 133

When will expert opinion evidence be deemed admissible?

Answer 133

if the fact-finder is likely to obtain substantial help from the opinion in:
* understanding other evidence, or
* in ascertaining any fact that is of consequence in the determination of the proceeding.

Question 134

What is the substantial helpfulness test?

Answer 134

a more rational test to assess the reliability and value of the expert opinion on its merits. Consideration of a miture of relevance, reliability and probative value.

Question 135

What was said in R v TURNER in relation to proven facts

Answer 135

“Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant ones into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.”

Question 136

What do the exclusion rules of evidence deal with?

Answer 136

− veracity
− propensity
− hearsay
− opinion
− identification
− improperly obtained evidence.

Question 137

What is the criteria for admissibility of hearsay evidence?

Answer 137

Reliability AND
unavailability OR undue expense or delay

Question 138

What are four principals expert witnesses should abide by as set out in R v HUTTON

Answer 138

• an expert must state his or her qualifications when giving evidence
• the facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
• the expert must not give opinion evidence outside his or her area of expertise

Question 139

What must defence do if they intend to call an expert witness?

Answer 139

They must disclose the Brief of evidence or report at least 14 days before the date fixed for the trial.

Question 140

What is a hearsay statement defined as?

Answer 140

A statement that contains:
(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 141

What do you need to verify before summonsing someone?

Answer 141

• whether they are allowed to give evidence
• whether they are required to give evidence
• whether they can refuse to give evidence, and
• what type of witness they will be.

Question 142

When a witness has entered the witness box and been sworn in what are the compelled to do?

Answer 142

Answer all questions put to them.

Question 143

When can a co-defendant give evidence against another co-defendant?

Answer 143

-If they are being tried separately.
- The proceeding against the co-defendant giving evidence has been determined.

Question 144

What is the meaning of when a proceeding has been determined?

Answer 144

It has been stayed, or in summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or
The associated defendant has been acquitted of the offence OR
They have been sentenced.

Question 145

What is an associated defendant?

Answer 145

Committed an offence in the same event as the primary offender OR
Offences are related or connected

Question 146

Who is not compellable to give evidence?

Answer 146

judges, in respect of their conduct as a judge, the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country, are not compellable to give evidence.

Question 147

Are bank officers compellable?

Answer 147

where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.

Question 148

What is the definition of privilege in relation to giving evidence?

Answer 148

the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

Question 149

How is privilege Waived?

Answer 149

Privilege is waived by the person who is entitled to rely on it. The waiver ends the persons rights to the material

Question 150

Who is covered under legal professional privilege?

Answer 150

-Under s54, any communication between a person and his or her legal adviser for the purposes of seeking or obtaining professional legal services, is privileged
-Under s56, communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding, are also privileged (this was termed “litigation privilege” under the previous law).

Question 151

What are the five requirements of communications with legal advisors for them to be privileged?

Answer 151

1 - communication must be intended to be confidential
2- The communication must be made for the purposes of obtaining or giving legal services.
3- The privilege is vested in the person seeking or receiving the legal services.
4- The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
5- the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken.

Question 152

What are some examples of privilege

Answer 152

-Comms w legal advisors
-Prep materials for proceeding
-Comms w ministers of religion
-Info obtained by medical practitioners/clinical psychologists
-Informer privilege

Question 153

Prep materials for proceeding

Answer 153

-Applies comms/info made/received/compiled/prep for primary purpose prep for proceeding.
-Privilege if are/on RG contemplate becoming party to proceeding.
-Privilege can be in respect of comms between legal advisor and other person.

Question 154

When will communications with a religious minister be considered privileged?

Answer 154

S58 Evidence Act 2006
Privilege if communication (all types – even if in document) was;
-Made in confidence in minister’s capacity as minister of religion AND
-Made for purpose obtaining/receiving religious/spiritual advice/benefit/comfort.

Question 155

What is classed as a minister of religion?

Answer 155

Minister of religion if has a status in church or other religious/spiritual community that req;
-To receive confidential comms AND
-To respond w religious/spiritual advice/benefit/comfort.

Question 156

When does privilege apply in relation to medical practitioners/clinical psychologists?

Answer 156

Applies to person who consults/examined by medical practitioner/clinical psychologist for drug dependency/other condition or behaviour that may manifest self in criminal conduct BUT doesn’t apply when req by judge to be examined/tested or when a third party communicates to the as a representative of the patient.

Question 157

What is the definition of drug dependency?

Answer 157

state periodic/chronic intoxications produced by repeated use/consumption/smoking CD. Compulsive desire to continue.

Question 158

What is the definition of a Clinical psychologist?

Answer 158

health practitioner reg under Health Practitioners Competence Assurance Act AND permitted diagnose/treat people suffering mental/emotional issues.

Question 159

Define self-incrimination

Answer 159

Provision by person of info could reasonably lead/increase likelihood of prosecution.

Question 160

When does privilege against self incrimination apply?

Answer 160

• Give info in course of proceeding
• By person exercising a statutory power/duty
• PO/other person in course of investigation into criminal offence/poss offence AND
  If info given likely incriminate person under NZ law for offence punishable by fine/prison.

Question 161

in relation to privilege against self-incrimination, a person must offer sufficient evidence to the judge that they are ‘reasonably likely’ to self incirminate, what does likely mean?

Answer 161

real and appreciateable, not merely imaginary and fanciful.

Question 162

define informer

Answer 162

someone who has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed. This can include undercover

Question 163

What are the two circumstances when privilege is disallowed under section 64?

Answer 163

The privilege under s64 must be disallowed by the judge 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.
-it may be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.

Question 164

When deciding on privilege in relation to jury deliberations, what two things must a Judge weigh up?

Answer 164

• the public interest in protecting the confidentiality of jury deliberations generally, and
• the public interest in ensuring that justice is done in those proceedings.

Question 165

in Protection of journalists sources, who can order the protection will not apply and what do they need to consider?

Answer 165

A high Court Judge, if they are satisfied by a party to the proceeding that the public interest in disclosure of the identity outweighs;
* any likely adverse effect on the informant or any other person, of the disclosure, and
* the public interest in the communication of facts, and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

Question 166

What happens if the journalist or their employer are willing to disclose the identity of their source?

Answer 166

Nothing. They can disclose it if they want to

Question 167

What offences require corroboration?

Answer 167

Perjury
False statement
False Oath
Treason

Question 168

What is privilege in relation to giving evidence?

Answer 168

right to refuse to disclose, or to prevent disclosure, of evidence that would otherwise be admissible.

Question 169

What is a judges role in a trial by Jury?

Answer 169

• decide all questions concerning the admissibility of evidence
• explain and enforce the general principles 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 170

What are the two things witnesses under 12 must do before giving evidence?

Answer 170

• 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 171

Whats the sequence of a jury trial?

Answer 171

-Jury empanelled, foreperson selected judges opening instructions
-Crown opening address
-Crown case presented
-Defence opening address
-Defence witnesses
-Crown closing address
-Defence Closing address
-Judge summing up

Question 172

Under section 33, the defndants right to silence, what is the restriction?

Answer 172

In a criminal proceeding, no person other than the defendant, or the defendants counsel or the judge may comment on the fact that the defendant did not give evidenceat their own trial.

Question 173

What is the purpose of evidence in chief?

Answer 173

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

Question 174

What is the general rule on leading questions?

Answer 174

The general rule is that leading questionsmay not be asked during evidence in chief or re-examination

Question 175

Define leading questions

Answer 175

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

Question 176

Why are leading questions generally prohibited?

Answer 176

because it will produce unreliable evidence because;
-People have a natural tendency to agree with suggestions put to them by saying yes.
-counsel asking leading questions of their own witnesses to elicit the evidence they wish to receive.
-They will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

Question 177

What are exceptions when leading questions are permitted?

Answer 177

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

Question 178

What are some examples of the judge allowing leading questions by discretion?

Answer 178

-Direct the witness’s attention to the subject of identification evidence.
-in respect of a question about surrounfing circumstances in orde to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
-Where the witness has been declared hostile.

Question 179

What conditions must be satisfied if a witness wishes to consult a document while giving evidence?

Answer 179

-Leave of the judge must be obtained
-The documents must be shown to every other party in the proceeding.
-The document must have been made or adopted by a witness at a time when their memory was fresh.

Question 180

When will a previously consistent statement be ruled admisible?

Answer 180

-It responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness OR
-Forms and integral part of the events before the Court OR
-Consists of the mere fact that a complaint has been made in a criminal case

Question 181

What is the general rule in relation to previous consistent statements?

Answer 181

A witness cannot give evidence about statements made before the trial that are consistent with the evidence given at te trial unless the exceptions contained in 35(2) apply.

Question 182

Once a witness is declared hostile, what kind of questions are able to be asked of the witness?

Answer 182

-Leading questions
-Questions designed to probe the accuracy of the memory and perception
-asking questions as to prior inconsistent statements
-other challenges as to varacity, including evidence from other witnesses (as long as that any evidence offered is substantially helpful, in assessing the witness’s veracity)

Question 183

Can prosecution or defence call a witness known to be hostile to them?

Answer 183

Yes, under R V Vagaia there is no rule rstricting a party from calling a witnesswho is known to be hostile to that party.

Question 184

What are the three things that could mean a witness is hostile?

Answer 184

-The witness exhibits, or appears to exhibit, a lack of veracity when giving evidenceunfavourable to the party who called the witnesson a matter about which the witnes may reasonably be suposed 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 and intention to be unhelpfulto the party who called the witness OR
-Refuses to answer questions or deliberately withhold evidence

Question 185

Who decides if a witness is hostile?

Answer 185

It is a question of law so the judge decides on application from a party in the proceeding

Question 186

How can you distinguish between a hostile witness and an unfavourable witness?

Answer 186

Witnesses who simply fail to come up to brief may be unfavourableto the pary calling them but they are not necessarily hostile.

Question 187

What are the two purposes for cross-examination?

Answer 187

-To elicit informatoin supporting the case of the party conductting the cross-examination.
-To challenege the accuracy of the testiminy given in evidence-in-chief

Question 188

Who has a right to cross-examine a witness

Answer 188

Everyone other than the one calling the witness

Question 189

If defence or prosecution are intending to call evidence that will contradict the evidence in chief of a witness, what is required?

Answer 189

There is an obligation to put that contradictory material to the witness during cross-examination so that they can comment or explain

Question 190

When does a duty to cross-examine arise?

Answer 190

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

Question 191

Section 85 is about unaccetable questions, what does it give the Judge the power to do?

Answer 191

A wide discretion to control the nature of the questions and the manner in which they are put. The Judge can disallow and unacceptable question, or to direct that a witness is not obliged to answer the question posed.

Question 192

As per section 96, a witness can be cross-examined on a previous statement (consistent or inconsistent), does that statement need to be shown to the witness?

Answer 192

If the time place and circumstances surrounding the statement are adequately identified to the witness then no they dont.

Question 193

under section 96, what happens if a witnes does not expresly admit to making the statement they are being cross-examined on?

Answer 193

The party must show the wintess the statement if its is in writing or disclose its contents to th witnss if the statement is not in writing
The witness must be given the oppourtnuity to deny it or explain it

Question 194

What are the limits on re-examination?

Answer 194

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purpose of clarifying or qualifying any issue raised during corss-examiantion, but may not be questioned on any other matter, except with the permission of the judge.

Question 195

If evidence is called by either party, Once a case is complete, in order to rebut something. What are four reasons that the evidence may be admitted by leave of the court?

Answer 195

-Relates to a purely formal matter
-relates to a matter arising out of he conduct of the defence, the relevance of which could not have been foreseen
-Was not available or admissible before the prosecutions case was closed OR
-Is required to be admitted in the interests of justice for any other reason

Question 196

What are examples of when the judge may warn the jury about particular evidence?

Answer 196

-unreliable
-directions about cerain ways of giving evidence
-warning about lies
-childrens evidence
-Identification evidence
-delayed complaints or failure to complain in sexual cases

Question 197

under section 122(1), when ‘may’ the Judge warn the jury about evidence?

Answer 197

if they think the evidence is unreliable, they can warn the Jury whether to accept the vidence and if they accept it, what weight should be given to it.

Question 198

under section 122(2), when ‘must’ a judge consider giving a warning

Answer 198

-Hearsay evidence
-A statement by te defedant, if that evidence is the only evidence implicating the defendant (a confession)
-Evidence given by a witness who may have motive to give false vidence prejudicial to the defendant
-Statement made by the defendant to another erson while they were both in prison a Police station or a form of detention
-evidence of the conduct of the defendant if the conduct hapened more than 10 years before.

Question 199

If a judge is going to give a warning under section 122, when does it need to be done?

Answer 199

It can be done at any time during the proceeding and there is no particular words that are required by the judge.

Question 200

Under section 123, what is the judge required to do?

Answer 200

to direct the jury that the law give special provisions for people to give evidence in a special way and no negative inferences should be drawn against the defendant because of this.

Question 201

under section 124, if a defendant requests a judge gives a warning about a lie they have told during the proceeding, what are the three things the warning must include?

Answer 201

-The Jury needs to be satisfied that the defendant did lie before they use the evidence,
-people lie for various reasons
-The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offene charged.

Question 202

under section 125 it talks about children giving evidence, what does it prohibit?

Answer 202

-The judge giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
-any direction or a comment that there is a need to scrutinise childrens evidence with special care

Question 203

What is required from an O/C case in regards to witnesses for a jury trial?

Answer 203

-advise witnesses about witness expenses
-tell witnessess they aren’t to mix with the jury
-advise them of time date and place f trial
-check the jury to make sure none of the jurors are known to the witnesses

Question 204

What should n O/C do for a not guilty hearing?

Answer 204

Ensure that you look, stand and speak correctly
Identify the defendant
locate your witnesses and help them as required
Do not mix or gossip with members of the jury or defence

Question 205

What should you do when giving evidence?

Answer 205

Dont be flippant
say you do not know rather than guess
address the judge, prosecutions and defennce as sir/maam
take care that you actually answer the guestion being asked