Evidence Flashcards
What is evidence?
“Evidence” is the term for the whole body of material which a court or tribunal may take into account in reaching their decision
What forms may evidence be in?
Oral, written or visual
3 main categories of “rules of evidence”:
- HOW evidence may be given
- WHO may give evidence
- WHAT type of material may be given in evidence
Definition of relevance:
It has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding
Weight of evidence meaning:
its value in relation to the facts in issue. The ‘weight’ is the degree of probative value
Probative value meaning:
How strongly and centrally the evidence assists in proving or disproving.
Child complainant/ Child witness:
A complainant who is under 18 when charging document is filed.
A witness who is under 18 when proceedings commence
What is a Hearsay statement?
A statement made by someone other than a witness and is offered in evidence to prove the truth of its contents.
Veracity meaning:
The disposition of a person to refrain from lying
Propensity meaning:
Persons tendency to act in a particular way or have a particular state of mind
Section 6- Purpose of evidence law
Help secure the just determination of proceedings
Section 8- General exclusion:
Judge may exclude evidence if its probative value is out weighed by the risk that the evidence will:
- Have an unfairly prejudicial effect
- Needlessly prolong proceedings
Section 9- Admissible by agreement:
Allows normally inadmissible evidence to be admissible if both parties agree.
*Judge may still decline to admit the evidence.
What is the ‘Woolmington Principle’?
Presumption of innocence.
Burden of proof lies clearly with the prosecution in relation to elements of offence.
Standard of proof for Prosecution and Defence:
Prosecution: Beyond reasonable doubt.
Defence: Balance of probabilities.
What 2 systems does Criminal trial follow?
- Adversarial
- Accusatorial
What must happen instead of an oath when a witness is under 12 years old?
- Must be told by the Judge of the importance of telling the truth and not telling lies.
- Must after being given that information, make a promise to tell the truth before giving evidence
Rules regarding refreshing memory of written record whilst in court:
- Leave from the judge
- Shown to every party
- Document must have been made by witness at a time when memory was fresh
- Document must have been made by witness or person acting on their behalf
Example of hostile witness:
- Exhibits lack of veracity
- Evidence inconsistent with statement and is showing intention to be unhelpful
- Refuses to answer questions or deliberately withholds evidence
Initial disclosure documents?
How long to provide initial disclosure once criminal proceedings commence?
- SOF
- Charging Doc
- Summary of Defendants right to apply for further information
- Maximum penalty for offence
- QHA
*No later than 15 working days.
Further disclosure information Defendant can apply for?
- Names of witnesses
- Exhibits list
- Copy of interview with Defendant and witnesses
- Job sheets/notebooks
- Photos taken by officer
- If being charged with co-defendant, copy of their interview
When must full disclosure be given?
ASAP after Defendant has:
- Pleaded NG
- If Defendant is a CYP, after they make first appearance in Youth Court
Reasons evidence may be withheld:
- Prosecutor is not in control of it.
- Disclosure will prejudice maintenance of law, safety of NZ
- Likely to endanger the safety of any person.
- Information is publicly available
- It is material prepared to assist in the conduct of the trial
What is a compellable witness?
Someone who is lawful required to give evidence
Rules around co-defendants being witnesses:
An associated defendant is not a compellable to give evidence for or against defendant unless:
- being tried separately
- their proceedings have been terminated or finished
What is privilege in relation to giving evidence and give examples of this?
The right to refuse to disclose what would otherwise be admissible
- Communications with legal advisors
- Trust account information
- Settlement negotiations
Explain: Section 42 - Propensity evidence about co-defendants
Defendant may only offer propensity evidence about a co-defendant if evidence is relevant to a defence raised and judge permits it
Explain: Section 43 - Propensity evidence offered by Prosecutions about defendants
Evidence about Defendants propensity to commit criminal acts is relevant.
Only admissible if evidence “has a probative value which outweighs the risk that the evidence may have an unfairly prejudicial effect”
Judge must consider what regarding probative value of propensity evidence?
- Frequency of acts demonstrating propensity
- How closely related to current offending
- Similarity to previous acts
- Number of people making allegations
- Whether allegations may be the result of suggestibility
- Do acts share similar unusual features
Rules regarding evidence or questions about complainants sexual history?
Section 44.
Permission of judge is required before any questions or evidence are put to complainant about sexual history with anyone other than the Defendant
Judge will only give permission if it is directly relevant
No evidence or questions relating to reputation, credibility, consent or Defendants belief in consent in sexual matters.
Admissibility of out of court statements?
Out of court statements made by a witness are not excluded by the hearsay rule if the maker of the statement is available to be cross-examined.
Example:
Olivia gives evidence that Tony said “Dee killed Tom”. If Tony has given evidence in the proceeding about something else this out of court statement is still admissible.
Explain Section 18 - Main exception to hearsay rule
Hearsay statement is admissible if:
- the circumstances provide reasonable assurance that the statement is reliable
AND EITHER
- the maker of the statement is unavailable as a witness
- the judge considers that undue expense or delay would be caused if the maker were required to be a witness
2 criteria for admissibility of hearsay statement under Section 18:
- Reliability (of statement itself not person who intends to give it)
- Unavailability or undue expense or delay
Meaning of “unavailable as a witness”:
- Dead
- Outside NZ and not reasonably practicable to be a witness
- Unfit due to age, physical or mental condition
- Cannot be identified or found
- Is not compellable to give evidence
Explain Section 22 - Notice requirements:
Party who proposes to offer hearsay statement must:
- Provide every party with written notice with all information about statement
What is the formal procedure for ID?
- Observed ASAP after offence
- Suspect compared to no fewer than 7 other persons similar in appearance
- No indication is given to person making ID as to who suspect is
- Informed suspect may or may not be included
- Written record swearing to be true and complete
- Pictorial record of what witness looked at prepared and certified
Good reasons for not following formal ID procedures?
- Suspect refuses to take part and officer does not already have a photo
- Singular appearance of suspect
- Substantial change to appearance
- No officer in investigation reasonably anticipated that ID would be an issue.
- ID’d shortly after offence
Explain Section 46 - Admissibility of voice ID evidence:
Voice ID offered by Prosecution is inadmissible unless Prosecution proves on the balance of probabilities that the circumstances in which ID was made have produced reliable ID
