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EVIDENCE Flashcards

1
Q

What is the definition of evidence

A

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

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2
Q

Define admissable evidence

A

If it is legally able to be received by a court

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3
Q

Define relevance

A

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

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4
Q

What are facts in issue?

A
  • What the prosecution must prove to establish the elements of the offence

OR

  • What the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof
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5
Q

What are exclusionary rules?

A

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

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6
Q

What is weight of evidence?

A

Value depends on factors such as:
- if accepted, how relevant or conclusive are those facts
- Is it supported or contradicted by other evidence provided
- The veracity of the witness

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7
Q

Define witness

A

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

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8
Q

What is veracity?

A

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

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9
Q

Define propensity

A

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

Does not include evidence of an act or omission that is:
- one element of the offence for which they are tried
- the cause of action in the proceeding in question

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10
Q

Define direct evidence

A

Any evidence given by a witness as to a fact in issue that they have seen, heard or experienced

Example: An eye witness who states that she saw the defendant stab the complainant with a knife

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11
Q

Define circumstantial evidence

A

Evidence that doesn’t directly prove any fact in issue, BUT allows inferences about the existence of those facts to be drawn

Example: The defendant was seen in the vicinity of the crime

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12
Q

Define enforcement agency

A

NZ Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment

Including NZ Customs, ministry of fisheries and IRD

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13
Q

Define offer evidence

A

Evidence must be elicited before it is offered

Putting a proposition to a witness isn’t offering evidence UNTIL the witness accepts the proposition

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14
Q

Define giving evidence

A

Giving evidence is included in offering evidence:
- A witness gives evidence
- A party offers evidence

A party who testifies both gives and offers evidence

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15
Q

What ways can someone give evidence?

A

The ordinary way:
- Orally in a courtroom
- An affidavit filed in court or by reading a written statement

The alternative way:
- Screened away from the defendant or other person
- Outside the court room
- Video recording

In any other way:
- Provided by EA 2006 or any other enactment

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16
Q

Define incriminate

A

To provide information that is likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence

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17
Q

Define proceeding

A

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

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18
Q

Define statement

A
  • Spoken or written assertion by a person
    OR
  • non-verbal conduct of a person intended as an assertion
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19
Q

What is a hearsay statement?

A
  • A statement made by a person other than a witness
  • Is offered in a proceeding as evidence to prove the truth of its contents
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20
Q

What is the Woolmington principal?

A
  • The presumption of innocence
  • The burden of proof lies with the prosecution in relation to all of the elements of the offence
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21
Q

What are some exceptions to the Woolmington principal

A

The burden of proof lies with the prosecution except where:

  • The defence of insanity is claimed (s23(1) CA 1961)
  • A specific statutory exceptions exist: Possess offensive weapon with intent to cause bodily injury (s202A(4)(b) CA 1961) but defendant can prove an absence of intent
  • The offence is a Public welfare regulatory offence
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22
Q

What is evidential burden on defence?

A

A defence can not be left to the jury or judge unless it has been made a live issue by defence

It is not a burden of proof, and once made a live issue then prosecution must destroy the defence because the burden of proof remains with the prosecution

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23
Q

What is the standard of proof?

A
  • Where the legal burden is on the prosecution is “beyond reasonable doubt” to prove its case - jurors must be satisfied of guilt before they can convict
  • Where the defence bears the burden to prove a particular element of the case, it need only be proved on the balance of probabilities - if the tribunal say “We think it more probable than not” then the burden is discharged
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24
Q

What is beyond reasonable doubt? (R v Wanhalla)

A

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

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25
Q

What is a balance of probabilities?

A

Standard of proof required for defence to prove a particular element of its case

If the tribunal say “we think it more probable than not” the burden is discharged, if probabilities are equal then the burden is not discharged

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26
Q

s6 Purpose of evidence law objectives

A

Aims to help secure just determination of proceedings by:

a) Facts to be established by application of logical rules

b) Provide rules of evidence that recognise importance of BOR 1990

c) fairness to parties and witnesses

d) Protect right of confidentiality and other important public interests

e) Avoid unjustifiable expense and delay

f) Enhancing access to law of evidence

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27
Q

What makes good evidence?

A

Establishes 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

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28
Q

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

A

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

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29
Q

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

What are the two exceptions to the general rule?

A
  • When no evidence needs to be given because judicial notice is taken
  • When facts are formally admitted
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30
Q

What is judicial notice?

A

Declaring that a fact exist even though evidence has not been established that the fact exist

s128 Notice of the controverted facts known and accepted generally or in the locality

s129 Reliable published document to prove facts of public nature

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31
Q

Define presumption of law

A

Inferences drawn by law from particular facts:

  • Conclusive and irrebuttable: 10 year olds cannot be convicted
  • Rebuttable: all defendants innocent until proven guilty
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32
Q

What is presumption of facts?

A

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 simply logical inferences and are always rebuttable

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33
Q

How is evidence determined admissible?

A

By principles of evidence law:

  • Relevance
  • Reliability
  • Unfairness

Any evidence in which a juror might rely on, in reaching a ‘guilty’ conclusion, is admissible

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34
Q

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

A

Evidence that has been obtained by unfair or improper methods

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35
Q

Section 8 General exclusion

A

Even if evidence is relevant, it may be excluded if it would result in unfairness

  • Evidence may be excluded 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
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36
Q

Admissible evidence may be used in different ways and for different purposes in a proceeding (Hart v R)

A

Generally speaking, evidence is either admissible for all purposes or it is not admissible at all

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37
Q

What is relevant evidence (s7)?

A

Relevant evidence only is admissible unless it is inadmissible or excluded under this act or any other act

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

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38
Q

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

A

Both relevant and admissible

Inadmissibility or exclusion will usually be due to a lack of reliability, fairness, public interest, or a combination of these factors

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39
Q

What does the section 8 test involve?

A

Balancing the probative value of the evidence against the risk that it will:

  • have an unfairly prejudicial effect on the proceeding 8(1)(a)

The danger that a trier of fact will: give evidence more weight than it deserves, be misled by evidence, or use evidence for an illegitimate purpose

OR

  • needlessly prolong the proceeding 8(1)(b)

For example - where a defendant wishes to call 20 witnesses to give evidence as to their veracity

8(2) - must take into account the right of the defendant to offer an effective defence

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40
Q

When MUST the judge exclude evidence? (s8)

A

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

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41
Q

What is s14 EA 2006?

A

If question arises about admissibility the judge can still admit the evidence subject to further evidence being offered later to establish its admissibility

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42
Q

Section 15 Hearing in Chambers

A

Evidence given by a witness to prove facts which will help to decide whether some other evidence should be admitted in the proceeding

Also referred to as preliminary facts or a preliminary hearing

The jury is excluded from the court room

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43
Q

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

A

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

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44
Q

What was held in R V GWAZE?

A

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

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45
Q

What are the two classes of character evidence?

A

Veracity (a disposition to refrain from lying)
- rules do not apply if veracity is an element for an offence tried (perjury)

AND

Propensity (a tendency to act in a particular way)

Both do not apply to bail or sentencing hearings unless covered by s44

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46
Q

When do veracity and propensity not apply?

A

They’re character evidence

Rules don’t apply if veracity is an element of an offence tried. For example, Perjury

OR

Bail or sentencing hearings, unless evidence is covered by s44

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47
Q

In relation to section 37, veracity rules, what does a judge need to take into account before evidence is substantially helpful?

A

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

  • Lack of veracity when under a legal obligation to tell the truth
  • 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 to be untruthful
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48
Q

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

A

No, if they call the witness they can only challenge 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

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49
Q

When will veracity evidence be admissible?

A

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

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50
Q

What are two instances where substantial helpfulness is not sufficient?

A

Where prosecution wish to offer evidence about a defendants veracity (s38)

AND

Where a defendant offers evidence about a co-defendants veracity (s39)

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51
Q

What was suggested in R V K about veracity?

A

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

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52
Q

When can a defendant offer evidence about their veracity?

A

If it meets the substantial helpfulness test set out in section 37

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53
Q

When can the prosecution offer evidence as to the defendants veracity? (s38)

A
  • With permission from the judge
  • It meets the substantial helpfulness test
  • The defendants veracity has to be in issue and relevant
  • The defendant offered evidence about their own veracity or has challenged the veracity of a prosecution witness (The defendant must have orchestrated this evidence)
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54
Q

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

A
  • 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 prosecution seeks to give evidence
  • Whether any evidence about veracity was elicited by the prosecution
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55
Q

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

A

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

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56
Q

What does propensity evidence include?

A

Propensity as to actions

Propensity as to state of mind

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57
Q

What does propensity evidence not include?

A

Evidence of an act or omission that is:

  • 1 of the elements of the offence for which the person is being tried
  • The cause of action in the proceeding in question
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58
Q

What it the general rule about propensity?

A

That a party may offer propensity about any person

But is subject to rules on propensity about defendants and victims experiences in sexual cases (s44)

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59
Q

Under s41, what type of propensity evidence can a defendant offer up about themselves?

A
  • “Good character evidence”
  • Evidence of disreputable conduct about themselves
  • Neutral propensity such as attending a class every Tuesday so as to provide an alibi
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60
Q

Under s41, what happens if the defendant offers propensity evidence about themselves?

A

The prosecution or another party may, with permission from the judge, can also offer propensity evidence about the defendant to rebut what the defendant has said

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61
Q

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

A

a) Evidence must be propensity evidence to act in a certain way/ state of mind/ acts/ ommissions

b) Have a probative value “in relation to an issue in dispute”

c) The probative value outweighs the risk of it having a prejudicial effect on the defendant

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62
Q

Under s43 what does the judge need to consider when deciding the prejudicial effects of the evidence?

A

The judge MUST consider:

  • Whether the evidence is likely to unfairly predispose the fact-finder against the defendant
  • The fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
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63
Q

In relation to s43, who is the onus on to prove the probative value outweighs the prejudicial effect on the defendant?

A

Prosecutions

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64
Q

What should the Court focus on when considering s43? (Propensity evidence offered by prosecution about defendants)

A

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.”

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65
Q

When assessing the probative value of evidence, what MUST the judge take into consideration? (s43)

A

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.

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66
Q

If a witness gives hearsay evidence about another witness, who give evidence and is able to be cross examined, what happens?

A

This is not hearsay

If a witness is able to be cross-examined the hearsay rule is no longer in play

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67
Q

What is an unintended assertion?

A

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

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68
Q

What is the focus of the hearsay rule?

A

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 EA 2006

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69
Q

What are the two criterias for a hearsay statement to be admissible (s18)?

A
  • The statement is reliable
    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

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70
Q

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

A
  • The maker of a statement is not called as a witness, so there is no opportunity to cross-examine them
  • Juries can’t see the demeanour of the person who made the statement
  • Witness giving the evidence is inaccurate “Chinese whispers”
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71
Q

What does the reliability test focus on?

A

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

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72
Q

What does reasonable assurance of reliability mean?

A

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

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73
Q

What factors should the court consider when determining whether the “circumstances relating to the statement provide reasonable assurance that the statement is reliable” (s18)

A

s16(1) defines circumstances:

In relation to a statement by a person who is not a witness, include:
- (a) the nature and
- (b) the contents 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

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74
Q

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

A

“[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”

75
Q

What is an example of being unavailable as a witness? s16(2)

A

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

76
Q

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

A

The Sovereign and the defendant in a criminal case

They are considered unavailable as a witness for the purposes of the hearsay rule

77
Q

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

A

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

78
Q

When will a business document be admitted as hearsay evidence? (s19)

A
  • 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
    OR
  • the Judge considers that undue expense or delay would be caused if that person were required to be a witness
79
Q

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

A

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

80
Q

What notice needs to be given when intending to admit hearsay evidence under s18 and s19?

A

s22 (2) A party who proposes to offer a hearsay statement must provide every other party a written notice stating:

(a) Their Intention to offer the hearsay evidence
AND
(b) Name of the maker of the statement
AND
(c) If made orally, the contents of the statement
AND
(d) The circumstances relating to the statement that provide reasonable assurance that the statement is reliable
AND
(e) Why the document is a business record
AND
(f) Why the person is unavailable as a witness
AND
(g) Why undue expense or delay

On a criminal proceedings and notice of hearsay must be served on the other party so that each party has sufficient time prior to the proceeding to respond to the statement

81
Q

What is the definition of opinion?

A

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

82
Q

Under s24, general admissibility of opinions, what are the two basic criteria?

A
  • Opinion must be the only way to effectively communicate the information to the fact finder
  • The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived
83
Q

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

A

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

84
Q

Expert

A

A person who has specialised knowledge or skills from training, study or experience

They are required to demonstrate to the court that they have the qualification to be deemed an expert and evidence should be within the field of expertise

85
Q

What must expert opinion evidence contain as per s25?

A
  • Be that of an “expert”
  • Comprise of “expert evidence”

AND

-Offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding

86
Q

What is the substantial helpfulness test?

A

A more rational test to assess the reliability and value of the expert opinion on its merits

Consideration of an amalgam of relevance, reliability and probative value

87
Q

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

A

“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.”

88
Q

What do the exclusive rules of evidence deal with?

A
  • Veracity
  • Propensity
  • Hearsay
  • Opinion
  • Identification
  • Improperly obtained evidence
89
Q

What is the criteria for admissibility of hearsay evidence?

A

Reliability AND
unavailability OR “undue expense or delay would be caused”

90
Q

What are principals expert witnesses should abide by as set out in R v HUTTON (s25)

A
  • Must state their qualification
  • Must not give opinion outside of expertise
  • Is not an advocate to any party
  • Facts, matters, assumptions must be stated explicitly
  • The reasons for their opinions
  • Any materials, literature used to support their opinions
91
Q

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

A

They must disclose the brief of evidence, report, or a summary if no brief or report is available, at least 14 days before the date fixed for the trial

92
Q

What do you need to verify before summonsing someone?

A

Whether they:

  • Are allowed to give evidence
  • Are required to give evidence
  • Can refuse to give evidence
    AND
  • What type of witness they will be
93
Q

When a witness has entered the witness box and been sworn in what are they compelled to do?(s71)

A

Answer all questions put to them

A witness is eligible if they are able to give evidence, and a witness who is eligible to give evidence, is also compellable to give that evidence (once been sworn)

94
Q

When can an associated defendant give evidence against a defendant? (s73)

A
  • If they are being tried separately
  • The proceeding against the co-defendant giving evidence has been determined
95
Q

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

A
  • 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
96
Q

What is an associated defendant?

A
  • Committed an offence in the same event as the primary offender
    OR
  • Offences are related or connected
97
Q

Who is not compellable to give evidence?

A
  • Judges
  • In respect of their conduct as a judge
  • The Sovereign
  • Governor-General
  • Sovereign or Head of State of a foreign country
98
Q

Are bank officers compellable?

A

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
99
Q

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

A

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

100
Q

How is privilege waived?

A
  • Privilege is waived by the person who is entitled to rely on it
  • The waiver ends the persons rights to the material
101
Q

Who is covered under legal professional privilege?

A
  • (s54) Communication between a person and their legal adviser for the purposes of seeking or obtaining professional legal services
  • (s56) Communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding
102
Q

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

A
  • Intended to be confidential
  • If overheard by others, does not revoke privilege
  • To obtain or give legal services
  • Vested in the person seeking or receiving the legal services
  • Does not extend to any dishonest purpose
103
Q

What are some examples of privilege

A
  • Communication with legal advisors, ministers of religion
  • Solicitors trust accounts
  • Information from medical practitioners and clinical psychologists
  • Preparatory materials for proceeding
  • Settlement negotiations or mediation
104
Q

Preparatory materials for proceeding

A
  • Applies to communication or information made, received, compiled or prepared for primary purpose of preparing for a proceeding
  • Privilege if they are are or on RG contemplate becoming party to proceeding
  • Privilege can be in respect of communication between legal advisor and any other person
105
Q

When will communications with a religious minister be considered privileged?

A
  • If made in confidence
    AND
  • to receive religious or spiritual advice, benefit or comfort
106
Q

What is classed as a minister of religion?

A

Minister of religion is has a status in church or other religious or spiritual community that can:
- Receive confidential communication
AND
- Respond with religious or spiritual advice, benefit or comfort

107
Q

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

A
  • Applies to person who consults or is examined for drug dependency or other condition or behaviour that may manifest itself in criminal conduct
    BUT
  • Doesn’t apply when required by a judge to be examined or tested
108
Q

What is the definition of drug dependency?

A
  • The state of periodic or chronic intoxication produced by repeated use, consumption or smoking the controlled drug
    AND
  • Involves the compulsive desire to continue or a tendency to increase the dose
109
Q

What is the definition of a Clinical psychologist?

A
  • A health practitioner registered under the Health Practitioners Competence Assurance Act
    AND
  • Is permitted to diagnose and treat people suffering mental or emotional issues
110
Q

Define self-incrimination

A

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

111
Q

When does privilege against self incrimination apply?

A
  • In the course of the proceeding
  • By a person exercising a statutory power or duty
  • By a Police officer or other person in the course of an investigation
    AND
  • The information given would likely incriminate the person under NZ law for offence punishable by fine or imprisonment
112
Q

A person who claims a privilege against self -incrimination must offer sufficient evidence to enable the judge to assess whether self incrimination is reasonably likely. What is likely?

A

Real and appreciable and not merely imaginary and fanciful

113
Q

Define Informer

A

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 officers

114
Q

What are the two circumstances when privilege is disallowed (Informers s64)?

A

The privilege 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

  • The judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence
115
Q

Evidence about the deliberations of a jury can be given in circumstances that are exceptional and there is a sufficiently compelling reason to. What must the judge weigh up?

A

The public interest in:
- Protecting the confidentiality of jury deliberations
AND
- Ensuring that justice is done in those proceedings

116
Q

In Protection of journalists sources (informants), who can order that the protection as to their identity will not apply, and what do they need to consider?

A

A high Court Judge, if they are satisfied 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 in the ability to access sources of facts

117
Q

s69 Confidential Information

A

A direction that any one or more of the following is not to be disclosed in a proceeding:

  • A confidential communication
  • Any confidential information
  • Any information that would or might reveal a confidential source of information
118
Q

What offences require corroboration?

A

Perjury (s108 CA)
False oath (s110 CA)
False statement/ declarations (s111 CA)
Treason (s73 CA)

Corroboration is required as a matter of law

119
Q

What is a judges role in a trial by Jury?

A
  • Decide all questions concerning the admissibility of evidence
  • Explain and enforce the general principles of law
  • Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted
120
Q

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

A
  • 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

Witnesses 12 years and older must take an oath or affirmation

121
Q

Whats the sequence of a jury trial?

A
  • Jury is empanelled and foreperson selected
  • Prosecution give opening address and presents case
  • Defence give opening address and presents case
  • Prosecution give closing statement
  • Defence gives closing statement
  • Judge sums up
  • Jury retires to decide the verdict
122
Q

Under s33, the defendants right to silence, what is the restriction?

A

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 evidence at their own trial

The judge must direct the jury that it may not draw an inference that the defendant is guilty from a failure to answer questions, respond to statements or disclose a defence before trial

123
Q

What is the purpose of evidence in chief?

A

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

124
Q

What is the general rule on leading questions?

A

May not be asked during evidence in chief or re-examination

125
Q

Define leading question

A

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

126
Q

Why are leading questions generally prohibited?

A

A belief 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 the counsel and the witness
127
Q

When can a leading question be put to a witness s89(1)?

A

(a) For introductory or undisputed matters

(b) With consent of all other parties

(c) The judge, with discretion, allows it

128
Q

Two rules for refreshing memory

A

By reference to written document in court and out of court

The EA 2006 regulates the refreshment of memory in court that does not attempt to change the rules out of court

129
Q

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

A
  • Leave of the judge must be obtained
  • The document must be shown to all parties in the proceeding
  • The document must have been made or adopted by the witness at a time when their memory was fresh
130
Q

When will a previously consistent statement be ruled admissible?

A

If the statement:

  • Responds to a challenge about the witness’s veracity or accuracy
  • Integral to the matters before the Court
  • The mere fact that a complaint was made
131
Q

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

A

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

132
Q

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

A
  • Leading questions
  • Questions to probe accuracy of memory and perception
  • Questions about prior inconsistent statements
    AND
  • challenges as to veracity, including evidence from other witnesses
133
Q

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

A

Yes, under R v Vagaia there is no rule restricting a party from calling a witness who is known to be hostile to that party

134
Q

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

A
  • The witness exhibits a lack of veracity when giving evidence unfavourable to the party who called the witness
  • Gives inconsistent evidence with an intent to be unhelpful
  • Refuses to answer questions or withholds evidence
135
Q

Who decides if a witness is hostile?

A

It is a question of law for the judge, on application from a party in the proceeding

136
Q

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

A

Witnesses who simply fail to come up to brief may be unfavourable to the party calling them but they are not necessarily hostile

137
Q

What are the two purposes for cross-examination?

A
  • To elicit information supporting the case of the party conducting the cross-examination
  • To challenge the accuracy of the testimony given in evidence in chief
138
Q

Who has a right to cross-examine a witness

A

All parties, other than the one calling the witness

139
Q

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

A

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

140
Q

When does a duty to cross-examine arise?

A
  • When it deals with ‘significant matters’
  • That are relevant and in issue
  • and contradict the evidence of the witness
    -The witness is expected to give admissible evidence on those matters
141
Q

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

A

The judge can disallow or direct a witness they are “not obliged to answer” if the questions are: (MIRIU)
- misleading
- improper
- repetitive
- in a complicated language to understand
- unfair

The judge may have regard to: (PLAIT)
- physical, intellectual, psychological, psychiatric impairment
- linguistic, cultural, religious belief
- age and maturity
- if a hypothetical question will be provided by other evidence
- the nature of the proceeding

142
Q

As per s96, a witness can be cross-examined on a previous statement (consistent or inconsistent), does that statement need to be shown to the witness?

A

Not if the time place and circumstances surrounding the statement have been identified to the witness

143
Q

Under s96, what happens if a witness does not expressly admit to making the statement they are being cross-examined on?

A

The party must show the witness the statement if it is in writing, or disclose its contents to the witness if the statement is not in writing
AND
The witness must be given the opportunity to deny it or explain it

144
Q

What are the limits on re-examination?

A

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 cross-examination, but may not be questioned on any other matter, except with the permission of the judge

145
Q

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?

A
  • Relates to a purely formal matter
  • Relates to unforeseen matters arising out of the conduct of the defence
  • Was not available or admissible before the prosecutions case was closed
    OR
  • Is required to be admitted in the interests of justice
146
Q

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

A

(SULCIW)
- Delayed complaints or failure to complain in sexual cases
- Evidence may be unreliable
- Warning about lies
- Direction about children’s evidence
- Warning about identification evidence
- Directions about certain ways of giving evidence

147
Q

Under s122(1), when MAY the Judge warn the jury about evidence?

A

If the evidence may be unreliable, they can:
- Warn the Jury to take special care in cases where evidence is uncorroborated and whether to accept the evidence
AND
- If they accept it, what weight should be given to it

148
Q

Under s122(2), when MUST a judge consider giving a warning?

A

If the evidence given is:

  • Hearsay
  • Defendant statement (confession)
  • By witness who may have motive to give false evidence
  • A statement made by the defendant to another person while they were both detained
  • Evidence of conduct of the defendant if the conduct occurred 10+ years ago
149
Q

If a judge is going to give a warning under s122, when does it need to be done?

A

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

150
Q

Under s123 direction about how evidence may be given, what is the judge required to do?

A

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

151
Q

Under s124, 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?

A
  • The Jury needs to be satisfied that the defendant did lie before they use the evidence,
  • People lie for various reasons
    AND
  • The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged
152
Q

Under s125 it talks about children giving evidence, what does it prohibit?

A
  • The judge warns about the absence of corroboration (a warning is not given in an adult case)
  • Any direction or a comment that there is a need to scrutinise childrens evidence with special care
153
Q

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

A
  • Advise witnesses about witness expenses
  • Advise them of time, date and place of the trial
  • Tell witnesses they are not to mix with the jury
  • Check the jury list to make sure none of the jurors are known to the witnesses
  • They may read their written statement to refresh their memory before giving evidence
  • Ensure they remain within call if they are excluded from the court room
154
Q

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

A
  • 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
155
Q

What should you do when giving evidence?

A
  • Do not be flippant
  • Say you do not know rather than guess
  • Address the judge as “your honour”, and prosecutions and defence as “sir/ma’am”
  • Take care that you actually answer the question being asked
  • Advise the judge or prosecutor of any mistakes you made as soon as possible
156
Q

Define corroboration

A

Independent evidence that tends to confirm or support facts given in other evidence and implicates the defendant in the crime charge

157
Q

When is a witness eligible to give evidence?

A

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

158
Q

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

A

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

159
Q

An oath and affirmation may be taken by?

A

Any witness 12 years and over involved in a proceeding

160
Q

What must an expert witness demonstrate when they give evidence?

A

That they have the qualifications to be deemed an expert

161
Q

What is the definition of a hostile witness?

A
  • Lack of veracity when giving evidence when they are supposed to have knowledge
  • Evidence that is inconsistent with the statement with the intent to be unhelpful
  • Refuses to answer questions or withholds evidence
162
Q

What is a leading question?

A

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

163
Q

What is the general rule in relation to leading questions?

A

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

164
Q

What is burden of proof?

A

-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

165
Q

List four categories of privilege

A

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

166
Q

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

A
  • Their original statement
  • Their deposition

“For the purpose of refreshing memory while giving evidence, a witness may with the prior leave of the judge, consult a document made or adapted at a time when his or her memory was fresh”

167
Q

Who is eligible and compellable to give evidence?

A

Any person who is eligible to give evidence is compellable

168
Q

How do you address the judge in court?

A

Your honor or sir/maam

169
Q

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

A

When the probative value outweighs the prejudicial effect

170
Q

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?

A

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

171
Q

What are uncontroversial facts admitted as?

A

Judicial notice

172
Q

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….

A

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

173
Q

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?

A

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

174
Q

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

A

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.

175
Q

What are the exceptions for burden of proof?

A

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

176
Q

What is the burden of poof on prosecutions?

A

Beyond Reasonable Doubt

177
Q

R v Wanhalla - The presumption of innocence

A

You must treat the accused as innocent until the crown has proved their guilt

The accused does not have to give or call any evidence and does not have to establish their innocence

Prosecution has to prove beyond reasonable doubt

Defence have to prove on the balance of probabilities

178
Q

What was held in relation to presumption of innocence in R v Wanhalla

A

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

179
Q

What do the rules of evidence determine?

A

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.

180
Q

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?

A

The defendants right to offer an effective defence

181
Q

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

A

yes

182
Q

What is prior acquittal evidence?

A

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

183
Q

What do you need to do if you need to refer to your notebook?

A
  • Ask the courts permission
  • Introduce the material correctly
  • The defence and the jury are entitled to view your notes, so seal off other entries
  • You can only refresh your memory, you cannot read the whole entry unless you have permission to read the notes

CIB (6 decks)

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