Evidence Flashcards
Evidence
The fundamental principle in criminal law is the “presumption of innocence”, known as the … what ?
“Woolmington Principle”
Subject to statutory exceptions, Burden of Proof lies with prosecution in relation to all elements of an offence
Evidence
Prosecution holds the burden of proof when proving a case. Defence sometimes have to put up some type of argument (ie: Self defence) to negate a story. This is known as what ?
“Evidential Burden” on the defence
Evidence
Name three things where Defence holds the ‘burden of proof’ ?
- Insanity defence
- Specific statutory exceptions
- Public welfare regulatory offences
Evidence
What was held in R v Wanhalla, defining “beyond reasonable doubt” ?
- Very high standard of proof
- Only met, if you are “sure the accused is guilty
- Not enough to say probably or very likely
Reasonable doubt:
“An honest and reasonable uncertainty about guilt, after careful and impartial consideration to all evidence
Evidence
The ‘balance of probabilities’ simply means …?
It is more probable than not
Evidence
Corroboration - What are the two types of offences that need to be supported by other evidence to support a conviction ?
- Perjury
- Treason
Evidence
Corroboration - Is there a requirement for a Judge to give a general warning for uncorroborated evidence?
No, BUT - he can do if in his opinion;
- the evidence was unreliable
- hearsay evidence
**Prohibited to if child complainant … where warning would not have been given if it was an adult
Evidence
Admissibility of Visual Identification Evidence
If formal procedure is followed by Police, or good reason for not following procedure, that evidence is admissible UNLESS … what ?
The Defendant proves on Balance of Probabilities that evidence is unreliable
Evidence
Admissibility of Visual Identification Evidence
If formal procedure is NOT followed by Police, and there was NO GOOD reason for not following procedure, that evidence is inadmissible UNLESS … what ?
The Prosecution proves beyond reasonable doubt that circumstances in which ID was made produced reliable identification
Evidence
Admissibility of Visual Identification Evidence
The identification procedure must be conducted by … ?
“Officers of an enforcement agency” … includes agencies other than Police
Evidence
Admissibility of Visual Identification Evidence
The visual identification evidence procedure only applies to … who ?
People alleged to have committed an offence
Evidence
Admissibility of Visual Identification Evidence
The combined effect of the procedure under 45(2) and (3) is intended to prevent what … ?
Dock identification
Evidence
Admissibility of Visual Identification Evidence
The focus under the Act on visual identification evidence, is on whether or not … ?
A Formal Procedure was undertaken (or followed) … and the reliability of any witness
Evidence
Admissibility of Visual Identification Evidence
A procedure which adheres to most of the requirements under s45(3) is more likely to discharge the burden, than one that falls far short … The Court in R v EDMONDS stated … what ?
Unlikely to be many instances where ID is made after fleeting glance of stranger, where high standard of s.45(2) could be met by Crown in absence of at least some aspects of formal procedure having been conducted
Evidence
Admissibility of Visual Identification Evidence
Under Police Instructions, an identification parade should be conducted by a staff member of what level ? … AND
Can the OC Case be present during the proceedings ?
Level - Sergeant or Senior Sgt
OC case - Must NOT take part in the proceedings
Evidence
Admissibility of Visual Identification Evidence
The guiding principle (in Ah Soon v R) for a Formal identification procedure is… What?
Whether the procedure will;
“Avoid any material risk of predisposing the witness to identify the defendant”
Evidence
Admissibility of VOICE Identification Evidence
Section 46, Evidence Act 2006 sets out a general rule of inadmissibility … ?
Voice ID evidence offered by prosecution is inadmissible UNLESS;
Prosecution proves on balance of probabilities that circumstances in which ID was made, has produced reliable ID
Evidence
Exclusion of Unreliable Statements - Section 28
A Judge must exclude the (unreliable) statement UNLESS … ?
He is satisfied on “Balance of Probabilities”, circumstances in which statement was made, not likely to adversely affect its reliability
Evidence
Exclusion of Unreliable Statements - Section 28
Under Section 28(3), Judge does not have to exclude statement if it offered by Prosecution ONLY as evidence … in two circumstances … ?
To show:
- The Physical, Mental or Psychological condition of Defendant at time statement was made OR …
- Only as evidence of whether the statement was made
Evidence
The Oppression Rule - Section 29
A Judge must exclude the statement UNLESS … ?
He is satisfied “Beyond Reasonable Doubt” that the statement was not influenced by oppression
Evidence
The Oppression Rule - Section 29
Oppression in this Section means … ?
- oppressive, violent, inhuman
- degrading conduct or treatment towards defendant or other person … or threats of that kind
Evidence
The Oppression Rule - Section 29
Is it relevant if the statement made by the Defendant is true … ?
No, it’s irrelevant
Evidence
The Oppression Rule - Section 29
What matters may the judge take into account, when deciding BYD Whether the statement was influenced by oppression … ?
- Any pertinent physical, mental, psychological condition of Defendant
- Characteristics of defendant including mental, intellectual, physical disability
- Nature, manner and circumstances of questions
- Nature of any threat, promise, representation made to defendant or another person
Evidence
The Oppression Rule - Section 29
From who’s perspective is oppression to be judged from (prosecutors or defendant’s) … ?
The Defendant’s
Evidence
Improperly Obtained Evidence - Section 30
If the judge finds on the balance of probabilities evidence was improperly obtained, what else must he determine … ?
Whether or not the exclusion of evidence is proportionate to impropriety …
Then by means of balancing process gives appropriate weight to the impropriety AND takes account of need for credible justice system
Evidence
Improperly Obtained Evidence - Section 30
Evidence is improperly obtained if it …?
- Breaches the New Zealand Bill of Rights
- Statement made by Defendant that would be inadmissible if offered in evidence by prosecutors
- Unfairly
Evidence
Improperly Obtained Evidence - Section 30
What was held in R v Te Kira, in relation to …“Mere ‘but for’ causation is not sufficient“ … ?
What is both necessary and sufficient is that there is a “real and substantial” connection between the violation in the obtaining of evidence”
Courts generally discuss in terms of “inconsequentiality” or “triviality” in overall context of case.
Evidence
Improperly Obtained Evidence - Section 30
The Court in “Chetty v R”, stated that the Judges Practice notes does not create rights … ?
BUT, it can be seen as setting standards … it sets how police must conduct themselves and requires a record be created
