Evidence Flashcards
what is Evidence
oral, written or visual materials which a court / tibunal may take into account when reaching a decision.
when is evidence Admissible
Evidence is admissible if it is legally able to be received by a court.
Relevance
Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”
prosecution must
defence must
Facts in issue are those which:
- 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.
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Exclusionary rules of evidence
(when should evidence be excluded)
These are rules that exclude evidence (usually because it
unreliable
unduly
prejudicial
unfair to admit
Weight of evidence depends on
= value to facts of issue depending on:
How relevant is the evidence
Does it support or contradict other evidence.
verasity of witness.
The “weight” is the degree of probative force that can be accorded to the evidence
Give/offer evidence
a witness “gives evidence”
a party “offers evidence”.
A party who testifies both gives and offers evidence.
In a proceeding, evidence may be given:
written affidivat if PPS and Defence cosent
Orally in the courtroom.
Alternative way eg behind a screen so the witness can not see others in the court room
By video recording from a location other than the court room
meaning of Incriminate
provide information that is reasonably likely to lead to/ increase the likelihood of the prosecution of a person for a criminal offence
what is a Proceeding
action through which a party seeks to use the power of a court/tribunal
what is a Statement
spoken or written assertion by a person providing relevant facts to help prove elements of an offence
what is a Witness
a person who gives evidence and is able to be cross-examined in a proceeding.
what is Propensity
A natural tendancy to behave in a particular way or hold a certain state of mind, being evidence of acts, omissions, events, or circumstances in which the defendant behaved in a similar way.
what is Direct evidence
any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced- ie an eye witness.
what is a Enforcement agency
any body or organisation that has a statutory responsibility for the enforcement of an enactment
including
New Zealand Police or
New Zealand Customs Service
Ministry of Fisheries
Inland Revenue Department
Woolmington principle: presumption of innocence
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
Defences role relating to the woolmington principle
PPS= ordinarily hold burden of proof, unless.
Defence=
reversed burden of proof
practical obligiation
evidential burden
Practical obligation on the defence
If the prosecution proves facts of defendant committing the act with the requisite mental element, then the defendant has to produce some story or evidence if he or she wants to suggest the conclusion is wrong.
This is not a burden of proof – the defendant does not have to prove anything.
It applies where defendants wish to state that they did not do the act or have the necessary mental element, but where they do not wish to produce a particular defence to the charge.
“Evidential burden” on defence
If the defendant wishes to put up a case against the charge the prosecution is not obligated to disprove every possible defense presented by the defendant.
once the basic elements have been proven by the prosecution, it is up to the defence to produce evidence that suggests another explanation.This is not practical obligation this becomes an evidential burden on the defendant.
Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence. It is not a burden of proof, and once it is made a ‘live issue’ then the prosecution must
destroy the defence, because the burden of
roof remains where that case puts it – with the prosecution.
The ultimate question for the jury is always, “has the prosecution proved its case?”
Exceptions to Woolmington
principle when legal burden of proof is placed on defendant
exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant.
examples
defence of insanity
Parliament by express statutory exceptions.
Some offences
admissibility of evidence
Woolmington may not apply:
“Public welfare offences”
the purpose of public welfare offences is to regulate everyday conduct which may endanger the public or sections of the public
once the prosecution has proved the actus reus there is no further need to prove mens rea and the burden passes to the defendant to prove a total absence of fault as a defence.
Discharging burden of proof (threshold required)
The party bearing the legal burden of proof must meet a standard.
prosecution: beyond reasonable doubt.
defence: balance of probabilities
R v Wanhalla (reasonable doubt)
reasonable doubt- 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
presumption of innocence
You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
Balance of probabilities
more probable than not. If the probabilities are equal, the burden is not discharged.
presenting evidence in court is dictated by what?
The rules of evidence determine 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
Purpose of Evidence Act 2006
Section 6 of the Evidence Act 2006
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
proving facts/charge with evidence?
facts/evidence should prove charge.
elements of charge should be considered when chosing relevant evidence which will help determine guilt.
Circumstantial evidence
does not prove defence directly but provides proof of surrounding circumstances that offer indirect proof.
the more circumstantial evidence available the more likely it is to prove guilt when viewed as a whole
general rule of evidence
all facts in issue and facts relevant to the issue must be proved by evidence.
Exceptions to general rule of evidence
judicial notice is taken
facts are formally admitted
Judicial notice
declares a fact presented as evidence as true without a formal presentation of evidence.
128 Notice of uncontroverted facts
(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.
(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this atter.
what type of documents can be admitted under section 129
(1) A Judge may admit evidence in publsihed documents about matters of
art
literature
public history
science
if they consider it to be a reliable sources of information
(2) hearsay evidence, opinion evidence and expert evidence doesnt apply.
when are Facts formally admitted
In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed.
Presumptions of fact
Presumptions of fact are those that the mind naturally and logically draws from the given facts.
Presumptions of fact are simply logical inferences, and so are always rebuttable.
when is evidence admissible?
Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible.
R v Burrows- admissibility
the party wishing to bring evidence forward has the burden of proof to prove evidence is admissible
illogical to require crown to prove circumstantial evidence beyond reasonable doubt as circumstantial facts doent require proving to that standard.
admissibility is a question of law w no room for varying standards of proof.
any evidence which a jurur ight reply on to determine guilt is admissible.
r.r.f
In deciding whether evidence is admissible, consider
- relevance
- reliability
- unfairness
section 7 evidence act 2006
Fundamental principle that relevant evidence admissible (unless)
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
Inadmissibility or exclusion will
usually be due to…
Unfair
unreliable
public interest
or a
combination of these factors.
is Reliability important?
it is important to ensure that evidence obtained is reliable although unreliability is not a general ground of inadmissibility,
Fairness of evidence (S8 Evidence Act 2006) when might evidence be excluded?
Even though evidence is relevant, it may be excluded if it would result in unfairness.
It usually arises in two ways:
- Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
- Evidence obtained in circumstances that would make its admission against the defendant unfair.
general exclusion provision- when must a judge exclude evidence
Judge must exclude evidence if its value is outweighed by the risk that the evidence will—
unfairly prejudicial effect on the proceeding
needlessly prolong the proceeding.
judge may offer the defence to privide a reason as to why evidence would do either above.
When can unfair prejudice occur
When some piece of evidence more weight than it deserves
be misled by evidence
use evidence for an illegitimate purpose.
Admission by agreement
Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree.
The Court in R v Hannigan12 highlighted that the Judge retains control of this process and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.
Hart v R (admissible or not at all)
“the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”
rules of evidence deal with 6 types of evidence
veracity
* propensity
* hearsay
* opinion
* identification
* improperly obtained evidence.
R v Gwazem (rules of admissibility)
rules of admissibility, including s 7 and 8, are rules of law and are not matters of discretion.
Although they involve questions of judgment, they “prescribe standards to be observed”.
veracity meaning
– a disposition to refrain from lying
“propensity meaning
a tendency to act in a particular way
when do veracity and propensity rules not apply?
to bail or sentencing hearings
(EXCEPT when the evidence is covered by s44 where it relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or his or her reputation in sexual matters).
Verasity rules, what may the judge consider?
bias’
motives to lie
previous charges for dishonesty offending
previous inconsistant statements
verasity under oath
Section 37(4)(a) (veracity of hostile witness)
clearly signals that a party may not offer evidence to challenge the veracity of their own witness unless the witness is declared
hostile.
Substantial helpfulness and veracity …
In order to be admissible, veracity evidence must be…
In order to be admissible, veracity evidence must be substantially helpful in
assessing the veracity of the person.
it has to do more than simply proving or disproveg a matter.
when does the substantial helpfulness test apply?
veracity evidence in evidence in chief.
evidence elicited through cross-examination.
Substantial helpfulness is not a sufficient test in two instances:
prosecution wish to offer evidence about a defendant’s veracity
(s38), and
the defendant offers veracity evidence about a co-defendant (s39).
38 Evidence of defendant’s veracity
the defendant may offer evidence towards their own veracity.
the prosectution may offer evidence as to the defendants veracity only if the defendant has offered their own evidence
or
if the defendant has challenged a prosecution witness’s veracity.
Propensity evidence includes
Propensity to act in a certain way
propensity as to state of mind
Propensity evidence does not include
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
who can offer propensity
General rule to propensity
a party may offer propensity evidence about any person.
restrictions exist around propensity evidence about a defendant, and in sexual cases, propensity evidence about a
complainant’s sexual experience
why would a defendant provide evidence about disreputable conduct about himself?
for tactical reasons
neutral propensity
propensity that is neither good nor bad but may act as an alibi
is it necessary to have been convicted to use propensity evidence
No they do not have to be convicted to use their past conduct as propensity evidence
Heresay evidence
is a statement made by someone who is not the original witness.
is heresay evidence admissible
not admissible except where there is provision for
admissibility in the Evidence Act 2006 or any other Act; or where there is
express provision that the hearsay rules do not apply
primary rationale for
the rule against hearsay
the inability to test the credibility and accuracy of the maker
due to the fact you can not cross-examine the original witness.
can not see demenour of original witness.
mistakes might be made while evidence is presented by another witness making it unreliable
heresay evidence admissibility criteria
reliability
unavailability, or that “undue expense or delay would be caused”.
reasonable assurance means
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.
to consider :
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
unavailable as a witness means
can not be compelled
can not be identified
can not be found
dead
outside NZ
unfit to be a witness (old age, physical, mental condition)
19 Admissibility of hearsay statements contained in business records
admissible if
the person who supplied the record is unavailable to be a witness
No useful purpose for that person to be a witness
undue expense or delay to bring that person on as a witness
a business record means
documents that comply with duty of a business and / or are part of a record of that business.
(includes officers notebooks, statements, jobsheets)
23 Opinion rule
A statement of an opinion is not admissible in a proceeding, except as provided by
section 24 or 25.
the exclusion of opinion evidence is adhered to because
opinion evidence holds little weight and might:
draw away unneccesarily from facts given.
prolong proceedings
opinion evidence might be based on other inadmissible evidence
In order to be admissible under s24, the statement of opinion must
opinion is the only way to effectively communicate the information
the witness must be stating an opinion from something personally perceived.
Admissibly opinion evidence under S25
be that of an “expert”
comprise “expert evidence”, and
offer substantial help to the fact-finder in understanding other evidence
Expert evidence about sanity
(Section 25(4)) an expert opinion about someones sanity/ state of mind can be formed on comments and statements made by the defendant.
Comments made about the defendant by others are inadmissible
principles of conduct of experts
an expert must state his or her qualifications when giving evidence
reasons for opinions given must be stated explicitly
any literature or other material used or relied on to support opinions must be referred to by the expert
must not give opinion evidence outside his or her area of expertise
if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
defendant calling expert witness notice requirement
S23 if defence intend to call expert witnesses they must disclose a brief of evidence report or summary (if no report is available) at least 14 days before day fixed for trial.
expert means
a person who has specialized knowledge or skill based on training, study or experience”.
The judge must determine whether the expert witness is properly qualified to testify
When can published documents be admitted as evidence?
when the Judge decides that they are reliable sources
what four things must be varified before summoning a person
are allowed to give evidence
are required to give evidence
can they refuse to give evidence,
what type of witness they will be
R v Turner (value of opinion)
“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.
examples of what experts can base their opinions on
books
journal articles
research findings of another person
Does every person who is able to give evidence need to be called to give evidence
no- however under the criminal procedures act if the court believes they should be called then the prosecution is required to call that witness.
what is an eligible witness?
lawfully able to give evidence on behalf of both prosecution and defence.
what is a compellable witness?
required to give evidence against their will for both prosecution and defence.
when is a witness compellable?
Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.
are people of certain ages or disabilities exempt from giving evidence?
no- while someone might be too young or incapable of providing a coherent testimony = being ‘unfit’ to testify, they can still be compelled to do so.
can judges or jurers/ council testify in that proceeding?
a judge overseeing a proceeding cannot testify in that proceeding.
A juror who or council in a proceeding can not testify without permission of the judge.
If the juror is allowed to give evidence than he will be removed from the jury.
defendant giving evidence
a defendant may give evidence but does not have to.
a co defendant is not required to give evidence against the defendant unless
the associated defendant is being tried separately from the defendant; or
the proceeding against the associated defendant has been determined.
what is an associate defendant
someone who is either a co-offender to a crime (not compellable)
or
someone charged with a linked offence to the same events (compellable)
what is privilege
the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
types of privilege
communications with legal advisors
solicitors’ trust accounts
preparatory materials for proceedings
settlement negotiations or mediation
communications with ministers of religion
information obtained by medical practitioners and clinical psychologists
two other types of privilege
privilege against self-incrimination
informer privilege
marital privilege
no longer exists– if any protection of disclosure
is desired, this will be assessed under s69
what ‘materials’ under privilege
communications
documents
opinions
who is covered by privilege
any person who the information relates to.
any person who received the information
any person who gave an opinion, prepared or compiled the information
any person who is currently in possession of the information.
who can waiver privilege
persons relying on the privilege.
an interested party may apply to have privilege reinstated.
what is legal professional privilege called?
“solicitor-client privilege.
It may include:
communication between the party, their legal advisor or any other person either are contact with.
information compiled /prepared/ received or requested by the party or the party’s legal adviser and any other person they are in contact with
circumstances in which legal privilege can and cant be claimed
Privilege can be claimed for:
Confidential comms
Comms to obtain legal service
Covers those who are seeking and receiving legal service
Privilege cannot be claimed if it is in relation to information that has been dealt in a dishonest way or is intended to assist in the commission of a crime .
If the information is overheared but is meant to be confidential then that person may be ordered not to disclose the information they overheard.
What is a minister of religion
A person who plays a pastorial role in a religious or spiritual community.
This does not just cover organised religions.
what kind of information is privileged regarding ministers of religion
spiritual advice, benefit or comfort
when does privilege apply in relation to medical
practitioners and clinical psychologists
person who is consulted for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct
it does not apply to a person who has been ordered by a judge to submit themselves for an examination
clinical psychologist means
a health practitioner who is deemed to be registered with the Psychologists Board permitted to diagnose and treat persons suffering from mental and emotional problems
refreshing memory before court means
referring to statements, briefs of evidence, speaking with officers who took statements from them etc. before court .
previous consistant statements in court
Previous consistent statements are generally inadmissible as multiple statements may add weight to the evidence through repetition not validity.
when are previous consistant statements admissable?
responds to a challenge that will be or has been made to the witness’s veracity or accuracy,
forms an integral part of the events before the court; or
consists of the mere fact that a complaint has been made in a criminal case
what is a Hostile witness
a witness who gives evidence inconsistant with a statement previously given, refuses to answer questions or has the intent to be unhelpful towards the party who called them.
what happens in the stand with a hostile witness
the hostile witness will be cross examined.
they may be asked leading questions
probing questions to test accuracy of memory /perseption.
ask questions about prior inconsistant statements.
questions as to the witnesses veracity.
unfavourable witnesses
a person who gives evidence contrary to their original statements may be unfavourable witnesses, they may not necessarily be hostile witnesses.
purpose of cross examination
to illicit information supporting the case.
to challenge accuracy of the witnesses testimony/evidence in chief.
what does duty to ‘put the case’ mean?
when evidence is given by one party that opposes the evidence of another, they may be cross examined and given the chance to explain or make comments about that contridiction.
drug dependency
compulsive desire to consume, smoke, or otherwise use a drug or a tendency to increase the dose of the drug.
what does privilege against self discrimination mean
cannot be compelled to provide information that legal rules would otherwise require him or her to supply.
who can claim the privilege against self-incrimination on behalf of another?
no one except for the situation where a legal adviser asserts the privilege on behalf of a client.
can body corporates claim privilege?
No
who is considered an informer?
a person who has supplied, gratuitously or for reward, information to 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.
An informer may be a member of the police working undercover
when can privilege be disallowed?
can be disallowed by a judge when:
the information appears to have been given for dishonest purposes or enables or aids anyone to plan or commit offences.
The information is necessary to enable the defendant to present an effective defence
what evidence can be disclosed in Jury deliberations
evidence must not be given about the deliberations of
a jury, which includes everything that was said or done during the time that the jury was performing its fact-finding function.
however evidence to issues within the jury can be disclosed, such as the competency and capacity of a juror.
protection of journalist sources
where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her
employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered
when can a judge override protection of journalist sources
public interest outweighs likely adverse effect on the informant and the public interest in the communication of facts
S60 Overriding discretion as to confidential information
a judge may give direction under this section to not disclose the following
(a) a confidential communication:
(b) any confidential information:
(c) any information that would or might reveal a confidential source of information.
section 60- A judge may consider whether disclosure of certain information outweighs public interest when…
preventing harm to people or relationships which are ivolved in the comms, or confidential infomration being made, obtained, prepared, rocorded.
protecting relationships silimar to that explained above.
protecting activities which rely on free flow of information
do you require corroborating evidence in criminal proceedings
not unless the person is charged with:
- perjury
- false oaths
- false statements or
declarations - treason
corroboration means
independent evidence that tends to confirm or support other facts/evidence
Warning to jury relating to
the absence of corroboration
not necessary of the judgeto give a warning to the jury or instruct them to take special care in cases where evidence is uncorroborated or a witness may be of doubtful reliability.
Do you need to corroborate child witnesses
prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult
Judge’s role in trial by jury
When a judge is presiding over a trial by jury, he or she must:
- 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.
who must take an oath/affirmation
Witnesses who are 12 years of age or older, though the judge may waiver this provided he informs that person the importance of telling the truth.
This may be relevant to persons with intellectual disabilities or a child who is unable to promise to tell the truth
what must witnesses under 12 do instead of giving an oath/affirmation
be informed by the judge of the importance of telling the truth and nottelling lies
after being given that information, make a promise to tell the truth, before
giving evidence.
order in which witnesses appear in jury trials
The defendant may make an opening statement
the prosecution otherwise open the case and call witnesses.
The witnesses give their evidence in chief (written/video recorded statements)
the witnesses may be cross-examined.
The witness may then be re-examined.
The defence may call witnesses immediately after prosecution witnesses
this is to help build a picture of events and how the evidence fits together.
sequence of jury trials
Jury is empanelled and forperson selected.
The judge commenses the trial and addressed the jury giving a brief of instructions covering their role, mechanics, burden of prooft etc.
Crown makes opening address providing details about the charges and summarise the case.
crown witnesses present chief of evidence and witnesses may be cross examined.
The defennce may provide an opening statement/ address the jury.
Defence calls witnesses who may be cross-examined.
The crown provides a closing statement to the jury
The defence makes a closing statement.
Judge sums up the jury before they retire to consider verdict.
what are the categories of offences.
cat 1- judge alone trial non-imprisonable.
cat 2- judge alone- max less than two years imprisonment
cat 3- judge alone or jury- 2 yrs or more imprisonment.
cat 4- jury-schedule one offences only
what is a view?
an inspection of a place or
thing that is not in the courtroom (for example, an inspection of a scene or
building where the alleged offending took place).
who can comment on the defendant not giving evidence
the defendant or the defendant’s counsel or the Judge
purpose of evidence in chief?
elicit testimony that supports the case of the party calling that witness
what is a leading question
directly or indirectly suggests a particular answer to the question.
typically yes or no answers
the prohibition of leading questions is based on the belief that…?
It produces unreliable evidence.
- 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 questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the
spontaneity and genuineness of the testimony. - There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise,
between counsel and the witness
what is the goal of evidence in chief and re-examination?
to draw out the witness’s
own recollections and to permit the trier-of-fact to judge the quality of the witness’s testimony.
when are leading questions allowed?
(a) the question relates to introductory or undisputed matters
(b) the question is put with the consent of all other parties; or
(c) the Judge allows the question.
when are leading questions permitted under 89(1)(c)
when it will lead to identification evidence.
questions about surrounding circumstances in order to jog a
witness’s memory about some fact or event in issue
To assist counsel in eliciting the evidence in chief of very young people,people who have difficulty speaking English, and people who are of limited intelligence
Where the witness has been declared hostile
refreshing memory in court
If a written statement was taken from the witness, they may use that statement to refresh their memory if permitted by the judge.
what must be satisfied for the witness to refresh their memory in court and refer to their fws
judge allowed it
the document is shared with all parties involved in proceedings.
the document was created/adopted while their memory was fresh.
when refreshing their memory in court and reading their statement, who must the document have been made by ?
made by the witness, or by another person acting on the witness’s behalf in his or her presence, with the witnessnes final assent
cross examination duties
deals with “significant matters” in the proceeding, and
matters are “relevant” and “in issue” in the proceeding
matters “contradict the evidence of the witness”
The witness may “reasonably be expected to be in a position to give admissible evidence on those matters”.
unacceptable questions
an questions considered:
expressed in a way that the witness does not understand.
Improper questions
Misleading questions
Questions that are overly repetitive.
Unfair questions
when does re-examination occur?
Re-examination occurs after a cross-examination to clarify information that came out during the cross-examination.
This is performed by the council who called that witness.
If the permission of the judge further questions may be asked.
The opposing counsel may then cross-examine on new information that is elicited.
evidence in rebuttal may be permissable until?
the jury retires
in judge alone trials, at any time until judgment is delivered.
types of judical warnings
childrens evidence
Delayed/failed complaints in sexual cases.
Directions on giving evidence
identification evidence
Lies
unreliable evidence
warnings about evidence that might be unreliable might occur when …?
confession made to another person while in custody/detainment.
heresay evidence
previous conduct if that conduct is oer 10 years old.
statements provided by defendant when that is the only evidence to implicate them.
witnesses who may have motives against the defendant
when warnings about the defendant lying the judge must include direction that
- 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.
warnings about child witnesses should only be given when
qualified expert evidence supports the warning.
what should the OC case consider for witnesses in not guilty hearings
tell the witness dates/times/ place of trial exhibits to present.
check if they have given evidence before- if not explain process.
advise witnesses who provided written statements that they can refresh their memories with their statement
ensure they remain within call if excluded during parts of the hearing.
check the list of jurers to ensure that none of the jurers are known to the witness.
warn the witness not to speak or mix with jurers
advise them about witness expenses.
OC case general expectations
- 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 jurors or members of the defence.
O/C Case Giving evidence
- Take care that you actually answer the question being asked.
- Say you do not know, rather than guess.
- Do not be flippant.
- Address the judge as “Your Honour“ or “Sir/Ma’am”.
- Address the prosecutor and defence as “Sir/Ma’am”.
- Advise the judge of any mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.
referring to your notebook
Ask for permission
Introduce material
Defence and jury may see your notes so secure other pages.
You can only refresh your memory with notes unless permission is granted to read verbatim
should you produce evidence which is favourable to the defence?
yes, you are there to assist the court at arriving to the truth of the matter. you must be unbiased.
when giving evidence you must be
calm
factual,
truthful,
professional.
unbiased,
