Evidence

Question 1

MC - What is the definition of Evidence?

Answer 1

Evidence is the term for the whole body of material which a court or tribunal may taken into account when reaching their decision.

Evidence may be oral, written or visual.

Question 2

MC - What is admissible evidence?

Answer 2

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

Question 3

What is relevance?

Answer 3

Evidence is relevant if it has the tendency to prove or disprove anything that is of consequence in the proceeding.

Question 4

SA - What is the definition of facts in issue?

Answer 4

• The prosecution must proved to establish the elements of the offence.
• The defence must prove to succeed with a defence, in respect of which he or she carries the burden of proof.

Question 5

SA - The weight of evidence depends of factors such as:

Answer 5

• The extent to which if accepted, it is directly relevant or conclusive to those facts.
• The extent to which it is supported or contradicted by other evidence produced.
• The veracity of the witness.

Question 6

SA - What are the different ways that evidence can be given in a proceeding.

Answer 6

• The ordinary way (Either oral in courtroom or affadavit filed in court or reading written statement in court)
• An alternate way (video link, behind screen, previously recorded video)
• Any other way provided by Evidence Act 2006 or any other enactment.

Question 7

MC - What is the definition of statement?

Answer 7

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 8

MC - What is the definition of a witness?

Answer 8

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

Question 9

SA - What is the definition of Hearsay Statement?

Answer 9

This is a statement that was made by a person other than a witness, it is offered in evidence in the proceeding to prove the truth of its contents.

This definition means that out of court statements made by a witness are not excluded in hearsay rule because the maker is able to be cross examined. Such statements may still be excluded by a different rule.
A statement offered for some purpose other than prove the truth of the its content is not a a hearsay statement.

Question 10

SA - What is the definition of Veracity?

Answer 10

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

Question 11

SA - What is the definition of Propensity?

Answer 11

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

Question 12

SA- What is direct evidence?

Answer 12

This any any evidence given by a witness as to a fact in issue that he or she saw, heard or otherwise experienced.

Question 13

SA - What is the definition of circumstantial evidence?

Answer 13

This is evidence of circumstances that do not directly prove any fact in issue but which allow inference about the existence of those facts to be drawn (eg defendant seen in the vicinity of the scene of crime.

Question 14

SA - Woolmington Principle?

Answer 14

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

Question 15

SA R v Wanhalla Reasonable Doubt

Answer 15

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

Question 16

SA - Balance of Probabilities?

Answer 16

Where the defence is required to prove a particular element ie instanity, on the balance of probabilities it must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.

Question 17

SA - The burden of proof lies with prosecution except where…..

Answer 17

• The defence of insanity is claimed
• Specific statutory exceptions exist
• The offence is a public welfare regulatory offence.

Question 18

SA - What are the two standard of proof?

Answer 18

• Beyond reasonable doubt is the legal burden for prosecution.
• Where defence bear the burden it need to be proved on the balance of probabilities.

Question 19

SA - Section 6 of Evidence Act sets out the purpose of the Act to help secure the determination of proceedings. What are the six objectives?

Answer 19

a. providing for facts to be established by the application of logical rules; and
b. providing rules of evidence that recognise the importance of NZ BOR Act 1990; and
c. Promoting fairness to all parties and witnesses; and
d. Protecting the right to confidentiality and other importance public interests; and
e. Avoiding unjustifiable delay or expese; and
f. Enhancing the accessory to the law of evidence.

Question 20

SA/MC - Facts in issue

Answer 20

The fact in issue are the facts which in law need to be proven to succeed with its case.

Question 21

SA - Fact formally admitted?

Answer 21

In a trial the counsel for either party can accept the some evidence is proven at the outset so it does not need to be discussed.

Question 22

SA - Presumption of Law

Answer 22

Presumption of law are inferences that have been expressly drawn by law from particular facts.

Can be conclusive or rebuttable.

Eg. Child under the age of 10 can not be convicted.

Question 23

SA - Presumption of Fact

Answer 23

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

Are always rebuttable.

One presumes that a person has guilty knowledge if in possession of recently stolen goods.

Question 24

SA Judicial Notice

Answer 24

When a court takes judicial notice of a fact, it declares that it will fine that fact exists, or will direct the jury to do so even though evidence has not been established that it exists.

ie Christmas day on 25th December.

Question 25

SA - In deciding whether evidence is admissible, the courts have reference to certain principles of Evidence Law. Drawn from common law and find there way into various provisions of the Evidence Act:

Answer 25

• Relevance
• Reliabilty
• Unfairness

Question 26

SA - Fundamental principle that relevant evidence is admissible (s7)

Answer 26

(1) All relevant evidence is admissible in a proceeding except evidence that is:
(a) inadmissible under this act or any enactment ; or
(b) excluded under this act or any other enactment.

(2) Evidence that is not relevant is not admissible in a proceeding.

Question 27

SA- Evidence may be relevant but still may be excluded if it soul result in unfairness. Unfairness can cover huge variety of situations and is matter for judge discretion. What are two way it usually arises?

Answer 27

• Evidence may be excluded if it could result in some unfair prejudice in the proceeding.
• Evidence not prejudicial in itself in terms of actual verdict is may still be excluded where is has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this would be where a defendants statement has been obtained by unfair or improper methods. The confession itself is impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

Question 28

SA - Section 8 is the general exclusion provisions.

Answer 28

Section 8
(1) in any proceeding, the judge must exclude evidence if it probative value is outweighed by the risk that:
(a) have an unfairly prejudicial effect of the proceeding; or
(b) needlessly prolong the proceeding.

Question 29

SA - Section 8 test involved balancing the probative value of evidence against the risk that is will:

Answer 29

• have an unfairly prejudicial effect of the proceeding (s8(1)(a)).
• Needlessly prolong the proceeding (s8(1)(b)).

Question 30

MC- The assessment under section 8(1)(a) must take into account?

Answer 30

the right of the defendant to offer an effective defence.

Question 31

SA - Section 14 Evidence act Question arises over admissibility

Answer 31

The judge may admit the evidence, subject to further evidence being offered later which establishes admissibilty.

Question 32

SA - Section 15 of Evidence Act

Answer 32

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

Question 33

SA - The exclusive rules of Evidence deal with:

Answer 33

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

Question 34

SA - The evidence act divides what was called ‘Character’ evidence at common law into two classes of evidence…..

Answer 34

Veracity - a dispostion to refrain from lying, and
Propensity - a tendency to act in a particular way.

Question 35

SA - Veracity rules (s37)
The judge may consider when deciding whether the veracity if substantially helpful….

Answer 35

• a lack of veracity on the part of the person when under legal obligation to tell the truth.
• that the person has been convicted of one or more offence that indicate a propensity for dishonesty or lack of veracity.
• any previous inconsistent statements made by that person.
• The bias on the part of the person.
• Any motive on the part of the person to be untruthful.

Question 36

SA - The prosecution in a criminal proceeding may offer evidence about the defendants veracity only if;

Answer 36

• the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosectuion witness by reference other than the facts in issue.
• The judge permits the prosecution to do so.

Question 37

SA - What is the propensity rule (section 40).

Answer 37

Propensity evidence is evidence that tends to show a persons propensity to act in a particular way, or to have a particular state of mind being evidence of any act or omission, event or circumstances with which a person is alleged to have been involved but does not include evidence of an act that is:
- one of the elements of the offence for which the person is being tried; or
- the cause of action in the proceeding in question.

Question 38

MC- Propensity evidence includes

Answer 38

• Propensity as to actions
• Propensity as to state of mind eg lack of inhibition, love of violence.

Question 39

MC - Propensity evidence does not include:

Answer 39

• 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 40

MC - General Rule Propensity may offence propensity evidence about:

Answer 40

Any person.

Question 41

SA - Under the act a hearsay statement is defined as (s4):

Answer 41

A statement that.
a) is made by a person other than a witness; and
(b) is offered in evidence in a proceeding to prove the truth of its contents.

Question 42

SA - Section 17 EA 2006
Hearsay statement is not admissible except:

Answer 42

a) as provided by this subpart or the the provisions of any other act; or

b) in cases where:

Question 42

SA - Section 17 EA 2006
Hearsay statement is not admissible except:

Answer 42

a) as provided by this subpart or the the provisions of any other act; or

b) in cases where:
i) the act provides a subpart that does not apply or
ii) the hearsay statement is relevant and not otherwise admissible under this act.

Question 43

MC - General admissibility of Hearsay evidence

Answer 43

If the statement is reliable AND
Either
- maker fo the statement unavialble as witness or
- the judge considers undue expense and delay would be caused if the make of the statement were required to be a witness.

Question 44

SA - The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence:

Answer 44

• Where the maker of the statement is not called as a witness, there is no opportunity to cross examine them regarding the contents and the circumstances in which it was made.
• the rules addresses concerns that the jury can not evaluate evidence properly without bring able to see the demeanour of the person who made the statement in question.
• There is a danger that witness will make mistakes about the meaning and content of statements made by other people eg Chinese whispers.

Question 45

SA - Section 16(2) EVidence Act.
A person is unavailable as a witness if the person is:

Answer 45

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

Question 46

SA- Opinion Evidence Exclusionary rule is essential to prevent the admission of unreliable/misleading evidence. The justifications for the rule include:

Answer 46

• when a witness offers bare opinion evidence holds little probative weight
• there is a danger that a witness offering opinion evidence will usurp the function of the tribunal of fact which is to draw the necessary inference from facts presented in evidence. The opinion evidence could confuse of prolong the proceeding.
• a witnesses evidence of opinion may be based on the evidence which may be inadmissible eg based on propensity evidence.

Question 47

SA - The general admissabillty of non expert opinion evidence s24.

Answer 47

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate or the fact finder to understand what the witness saw, heard, or otherwise perceived.

Question 48

SA - If the evidence is opinion evidence then in order to comply with section 25 the opinion must:

Answer 48

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

Question 49

MC - who determines whether an expert is properly qualified to testify?

Answer 49

The judge

Question 50

SA - CDA 2008 NOTICE REQUIREMENT.

Answer 50

Obligation for defence that if they intend to call expert witness they must prove BOE or report at least 14 days before date fixed for trial.

Question 51

SA - Not compellable to give evidence

Answer 51

• judge in respect of conduct as a judge.
• Governor General
• Sovereign
• Sovereign or head of state of other foreign country.

Question 52

SA- types of privilege

Answer 52

• Communcation with solicitor
• Solicitors trust account
• Communication with a minister of religion
• Information obtained by medical practitioners and clinical psychologists

Question 53

MC - Privilege information obtained by Medical Practioners and clinical psychologist applies to person who sees the above for::

Answer 53

• drug dependancy
• any other condition or behaviours that may manifest it self into criminal conduct.

Question 54

SA - What is the definition of corroboration? Sec 121

Answer 54

It is independant evidence which tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.

Question 55

MC - Offences must be corrborated?

Answer 55

• perjury
• Treason
• False oath
  -False statement and declarations

Question 56

SA- Judges role in Jury trial

Answer 56

• Decide all questions concerning the admissibility of evidence
• Explain and enforce the general principals of law applying to the point at issue.
• Instrut the jury on the rules of law by which the evidence =is weighed once it is submitted.

Question 57

SA - Oath and Affirmations. Witness who are 12 years and over must take an oath of affirmation . Witnesses under 12 must:

Answer 57

• be informed by the judge of the importance of telling the truth and not telling any lies; and
• after been given that information, promise to tell the truth before giving their evidence.

Question 58

SA - Restrictions on a defendants right to silence at trial. Who can comment?

Answer 58

• No person other the defendant or defendants counsel or
• the judge may comment of the fact the defendant did not give evidence at his/her trial

Question 59

MC- The purpose of Evidence in chief?

Answer 59

Is to elect information that supports the case of the party that called them as a witness.

Question 60

SA - General rule of Leading Question and Definition?

Answer 60

General rule is that leading questions may not be asked during examination in chief or re-examination.

The evidence act 2006 defines leading question as:
A question that directly or indirectly suggests a particular answer to the question.

Question 61

SA- The prohibition on leading questions (s85 governs) is based on the believe that it will produce unreliable evidence for the following reasons:

Answer 61

• There is a natural tendency for people to agree with suggestions put to them by saying yes, even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading question of their own witness can more easily elect the answers they wish to receive and therefore reduce the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of evidence though collusion conscious to otherwise between counsel and the witness.

Question 62

SA -Leading questions may be allowed in evidence in chief or re-examination if:

Answer 62

• the question relates to introductory or undisputed matters; or
• The question it put with the consent of all parties; or
• The judge, in exercise of judges discretion allows the question.

Question 63

SA - Previous consistient statement rule.

Answer 63

(1) A previous statement of a witness that is consistent with the witnesses evidence is not admissible unless subsection 2 applies to the statement.
(2) A previous statement of a witness that is consistent with the witness evidence is admissible if the statement -
(a) responds to a challenge that will be or has been made to the witnesses 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
(b) forms an integral part of the events before the court; or
(c) consist of the mere face that a complainant has been made in a criminal case.

Question 64

MC - Hostile witnesses may be asked questions that includes:

Answer 64

• 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.

Question 65

SA - A hostile witness means the witness:

Answer 65

• Exhibits or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter the witness may reasonably be supposed to have knowledge; or
• Gives evidence that is inconsistent with a previous 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 or deliberately withholds evidence.

Question 66

SA -What are the two purposes of cross examination:

Answer 66

• to elecit information to support the case of the party conducting the cross examination.
• To challenge the accuracy of the testimony given in evidence-in-cheif (ie by casting doubt on the witnesses veracity)

Question 67

SA - S85 Unacceptable Questions.

Judge may disallow or direct witness not obliged to answer any question that the judge considers:

Answer 67

• Improper
• Unfair
• Misleading
• Unnecessarily repetitive
• Expressed in a language that is too complicated for the witness to understand.

Question 68

S85 - Unaccepable questions:
The judge may take into account for purposes of disallowing questions:

Answer 68

• The age or maturity of the witness; and
• any physical, intellectual, psychological or psysacitric impairment of the witness; and
• The linguistic or cultural background or religious beliefs of the witness; and
• the nature of the proceeding; and
• In the case of a hypothetical question, whether the hypotheses has or will be proved by other evidence in the proceeding.

Question 69

SA- Evidence in rebuttal.

Leave for Evidence in rebuttal may be given to the prosecution if the further evidence:

Answer 69

• Relates purely to formal matter.
• Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (most common)
• was not available or admissible before the prosecution’s case was closed.
• is required to be admitted in the interests of justice for any other reason.

Question 70

SA - s125 relates to evidence given by children in a criminal case by treated same way as adults and it prohibits:

Answer 70

• the judge from given warnings about the absence of corroboration where a warning would not have been given for adult complainant.
• any direction or comment that there is a need to sructinise children’s evidence with special care or that children have the tendency to invent or distort.

Question 71

SA- If you need to refer to your notebook you must:

Answer 71

• Ask for the courts permission
• Introduce the material property- for example I interviews the defendant and wrote down the answers in my notebook at the time.
• Remember that defence and jury are entitled to view notes so seal off other entries.
• Remember that you are only allowed to refresh your memory , you cannot read the whole entry unless you have permission.

Question 72

SA - The simplifies conduct of jury trial is:

Answer 72

• The jury is empanelled and a foreperson selected
• Prosecution gives their opening address.
• The prosecution case is presneted.
• the defence give their opening address
• the defence case is present
• the pros make their closing statements
• the defence make their closing statements
• the judge sums it up
• the jury retire to decide the verdict.

Question 73

SA - There are a number of warnings (s122-127) that a judge may issue in relation to matters arising during the trial: These include:

Answer 73

• Judical warning that the evidence may be unreliable.
• Judicial warning about lies.
• Judicial warnings about identification evidence
• Judicial direction about certain way of giving evidence.
• Judicial direction on children’s evidence.
• Delayed complaints or failure to complain in sexual cases.

Question 74

SA - Privilege against Self incrimination:

Answer 74

• has privileging respect of the information and cannot be required to provide it.
• Cannot be prosecuted or penalised for refusing or failing to proving information, whether or not the person claimed privilege when the person failed or refused to provide the information.

A person who claims privilege against self incrimination in court proceeding must offer sufficient evidence to enable the judge to assess whether self incrimination is reasonably likely if the person provides the required information.