Evidence Flashcards
1
Q
What is evidence?
A
“Evidence” is the term for the whole body of material which a court or tribunal may take into account in reaching their decision.
2
Q
What is admissible evidence?
A
Legally able to be received by a court.
3
Q
What are Facts in issue?
A
The facts which in law need to be proven to succeed with the case. Usually alleged by the charging document and denied by a not guilty plea.
- 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.
4
Q
The “weight” of evidence is its value in relation to the facts in issue. The value will depend on a wide range of factors, such as?
RSV
A
- the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
- the extent to which it is supported or contradicted by other evidence produced
- the veracity of the witness.
5
Q
What is the definition of incriminate?
A
To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
6
Q
What is a statement?
A
- Spoken or written assertion by a person, or
- Non-verbal conduct of a person intended by that person as an assertion of any matter
7
Q
What is the Woolmington v DPP principle: presumption of innocence?
A
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.
8
Q
In a proceeding, evidence may be given in the following ways?
A
− the ordinary way
− the alternative way such as by video link
− any other way provided for by the Evidence Act 2006 or any other enactment.
9
Q
The burden of proof lies with the prosecution (Woolmington principle) except where?
ISP
A
− the defence of insanity is claimed
− specific statutory exceptions exist
− the offence is a public welfare regulatory offence.
10
Q
The standard of proof where the legal burden is on the prosecution is “beyond reasonable doubt”. Where the defence bears the burden, it need only be proved on the?
A
Balance of probabilities
11
Q
Explain the difference between the terms “beyond reasonable doubt” and on the “balance of probabilities”?
A
*Beyond reasonable doubt is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict.
*Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.
12
Q
What was held in Woolmington v DPP?
A
It was held that the prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
13
Q
What are two exceptions to the burden of proof being on the prosecution?
A
Defence of insanity.
Possess an offensive weapon in circumstances that prima facile show an intention to use it, defendant has no prove no such intent.
14
Q
Describe 4 matters which the Judge may consider in determining whether veracity evidence is substantially helpful?
CLIMB
A
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.
15
Q
What is the definition of circumstantial evidence?
A
Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof of a fact in issue.
16
Q
Define both “Presumption of law” and Presumption of fact”?
A
Presumptions of law are inferences that have been expressly drawn by law from particular facts.
Presumptions of fact are those that the mind naturally and logically draws from the given facts.
17
Q
Section 16(2) defines what is meant by “unavailable as a witness”?
DONUT
DONUI
A
(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
18
Q
Why is opinion evidence unreliable?
A
- Bare opinion it holds little probative weight
- The opinion evidence could confuse the tribunal of fact and prolong proceedings.
- May be based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence).
19
Q
Describe privilege and give two examples?
SLIPSM
A
Right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
- communications with legal advisors – section 54
- solicitors’ trust accounts – section 55
- preparatory materials for proceedings – section 56
- settlement negotiations or mediation – section 57
- communications with ministers of religion – section 58
- information obtained by medical practitioners and clinical psychologists – section 59.
20
Q
What are four reasons that evidence rebuttal can be recalled?
FCNA
A
- relates to a purely formal matter
- relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
- was not available or admissible before the prosecution’s case was closed, or
- is required to be admitted in the interests of justice for any other reason.
21
Q
Define corroboration and list two offences which corroboration is required by the prosecution?
A
It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
22
Q
Explain the an 11 year old’s parents what the judge will expect of them in terms of oath and affirmation?
A
(Promise to tell the truth)
23
Q
Explain two ways of giving evidence?
A
Ordinary way - orally in court room or affidavit written for court
Alternative way - behind screen, video link, video previously made
24
Q
What is the purpose of 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
25
If a witness has memory loss, citing legislation can they be called hostile?
A clear distinction must be drawn between unfavourable witnesses and hostile witnesses. Witnesses who simply fail to come up to brief may be unfavourable to the party calling them, but they are not necessarily hostile.
This indicates that the simple fact that a witness gives evidence adverse to a party, suffers a loss of memory, or provides evidence inconsistent with another statement does not, by itself, justify finding the witness is hostile.
26
What are the four principles of of evidence law?
RRUP
Relevance
Reliability
Unfairness
Public Interest
27
What was found in R v Wanhalla in relation to reasonable doubt?
If after careful and impartial consideration of all the evidence, you are sure the accused is guilty you must find him or her guilty.
28
Explain the term "Facts that prove the charge"?
The facts must prove the elements of the charge, and the evidence should be made up of facts that prove the charge.
29
Define "Presumption of fact" and give an example?
Those that the mind naturally and logically draws from the given facts.
For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.
30
What is the Judge's role in trial by Jury?
DEI
* 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.
31
What is Voir Dire?
Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a “voir dire”,
32
What are four of the six purposes of evidential law?
FERAL C
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.
33
What does propensity evidence include?
* propensity as to actions
* propensity as to state of mind (eg a lack of inhibition, a love of violence).
34
What are four examples of privilege and the definition?
SIMMSS PL
A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
* communications with legal advisors – section 54
* solicitors’ trust accounts – section 55
* preparatory materials for proceedings – section 56
* settlement negotiations or mediation – section 57
* communications with ministers of religion – section 58
* information obtained by medical practitioners and clinical psychologists – section 59.
* privilege against self-incrimination – section 60
* informer privilege – section 64.
35
What is the definition of "leading question" and what is the general rule?
One that directly or indirectly suggests a particular answer to the question.
Leading questions may not be asked during evidence in chief or re-examination.
36
What is the definition of "hostile witness"?
* exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
* gives evidence that is inconsistent with a 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 questions or deliberately withholds evidence.
37
Section 125(1) - Does a Judge have to give a warning where a child is a witness, if not why?
(1)In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of a warning had the complainant been an adult.
38
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons?
* 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.
39
Section 85(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers?
URIME
improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
40
What is judicial notice?
When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.
41
Who is not compellable to give evidence?
SGSH
Under s 74, judges, in respect of their conduct as a judge, the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country, are not compellable to give evidence.
42
What are the two ways in which unfairness usually arises and may result in the exclusion of evidence?
Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.
43
Specific restrictions aside, if evidence is admitted, for what purposes can it be used?
For all purposes: “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all”
44
What is the propensity rule of evidence?
Propensity evidence means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but 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, or
− the cause of action in the proceeding in question.
45
Define an “expert” under s 4 of the Evidence Act 2006?
Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill, based on training, study or experience”.
46
When would a communication with a legal adviser be 'privileged'?
A communication with a legal adviser would be privileged when:
(a) The communication must be intended to be confidential.
(b) The communication must be made for the purposes of obtaining or giving legal services.
47
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations?
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply.
(a) The associated defendant is being tried separately from the defendant; or
(b) The proceeding against the associated defendant has been determined.
48
What is the meaning of self-incrimination under s 4 of the Evidence Act 2006?
Self-incrimination is “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” (s 4).
49
What types of offences are considered by law to require corroboration?
There are two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction. These are:
− perjury and related offences (ss 108, 110 and 111 Crimes Act), and
− treason (s 73 Crimes Act).
50
What is the purpose of cross-examination?
EC
− 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, for example, by casting doubt on the witness’s veracity, or by eliciting contradictory testimony.
51
Under the Act, a hearsay statement is defined as (s4)?
“a statement that –
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”
52
Can a witness refresh memory before Court, explain?
Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they may have made some months before.
53
A previous consistent statement is admissible if? (Not exceptions)
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
54
Define Relevance?
Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”
55
What is the definition of a witness?
Person who gives evidence and is able to be cross-examined in a proceeding.
56
Propensity evidence does not include evidence of an act or omission that is?
-One of the elements of the offence which is being tried
-the cause of action of the proceeding/mainly about veracity.
57
In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection 122(1) whenever the following evidence is given?
HSWEE
-Hearsay
-Statement by Defendant, if that is the only evidence
-witness evidence who may have a motive to give false evidence
-evidence of a statement by the defendant to another person while detained in prison, police station or another detention place
-evidence about conduct of the defendant more than 10 years ago.
58
All relevant evidence is admissible in a proceeding except evidence that is?
-inadmissible under this act or any other or:
-excluded under this act or any other
Evidence that is not relevant is not admissible in a proceeding.
59
What is the definition of Direct Evidence?
This is any evidence given by a witness as to a fact in issue that he or she has seen heard or otherwise experienced.
60
What is Miller v Minister of pensions - Balance of Probabilities?
Where the defence is required to prove a particular element such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.
61
The test of relevance can be broken down into two prongs (Materiality and Probativeness)?
* Materiality asks whether the evidence in the case is offered on a matter or a fact at issue (of consequence to the determination of the proceeding S7(3).
* Probativeness asks whether the evidence has a logical tendency to prove or disprove the material proposition on which it is offered S7(3).
62
General admissibility of opinions in evidence?
CSH
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.
63
In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless?
JIC
a. the question relates to introductory or undisputed matters or
b. the question is put with the consent of all other parties or
c. the Judge in exercise of the Judges discretion allows the question.
64
If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document must be satisfied?
LSM
* the leave of the judge must be obtained
* the document must be shown to every other party in the proceeding
* S90(5) requires the document to have been made or adopted by a witness at a time when his or her memory was fresh. Whether a document was made while the memory was fresh depends on the circumstances of the individual case.
65
There are a number of circumstances where a Judge may direct the jury that evidence should be scrutinized with particular care when? (six)
LICDU
* judicial warning that evidence may be unreliable
* judicial directions about certain ways of giving evidence
* judicial warnings about lies
* judicial directions about children's evidence
* judicial warnings about identification evidence
* delayed complaints or failure to complain in sexual cases
66
Unfairness can cover a variety of situations and is a matter for discretion of trial Judge, it usually arises in two ways?
* Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
* Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the accused unfair.
67
The exclusive rules of evidence deal with?
HIIP-VO
* Veracity
* Propensity
* Hearsay
* Opinion
* Identification
* Improperly obtained evidence
68
The prosecution in a criminal proceeding may offer evidence about a defendant's veracity only if?
a. The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and
b. the Judge permits the prosecution to do so.
69
Explain what "All people are eligible and compellable" means?
A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn they are under a compellable obligation to answer all questions put to them.
70
Evidence Act S.16(1) defines "Circumstances" in relation to a statement by a person who is not a witness include?
MAN CV
a. 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.
71
What is Section 59, information obtained by medical practitioners?
Disclosures made to practitioners will be covered by privilege but the person must make those disclosures personally. However it does not apply if they have been ordered by a Judge for an examination by a practitioner.
72
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence S77. Witnesses under the age of 12 must?
* 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 before giving evidence.
73
Previous consistent statements rule?
A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
74
If a hostile witness application is granted, the witness may be asked question that include?
* Asking leading questions
* Asking questions designed to probe the accuracy of memory and perception
* Asking questions as to prior inconsistency statements and
* Other challenges to veracity, including evidence from other witnesses
75
Explain what is meant by “burden of proof?
* Whoever asserts something must prove it
* In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt.
* In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.
76
In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?
DDDC
* Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
* The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement in question
* There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people
* The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be a ‘reasonable assurance’ of reliability, which means that the evidence must be reliable enough for the fact-
finder to consider it, and draw its own conclusions as to weight.
77
What is a leading question?
Give two exceptions to the general rule concerning leading questions?
HACII
(a) A leading question suggests the desired answer or assumes that disputed facts exist
(b) Any two of the following:
* Introductory or disputed facts
* Identification
* Assisting memory
* Contradiction
* Hostile witnesses
78
Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?
SRCR
* The topic of cross-examination must deal with ‘significant matters’ in the proceeding
* The matters must be ‘relevant’ and ‘in issue’ in the proceeding
* The matters must ‘contradict the evidence of the witness’ and
* The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters’.
79
What are the two exceptions to the general prohibition on previous consistent statement (Section 35 of the Evidence Act 2006)?
* To respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or
* On a claim of recent invention on the part of the witness
80
Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings?
* The evidence relates directly or indirectly to the sexual experience of the complainant with any person other that the defendant
* The evidence relates directly or indirectly to his or her reputation in sexual matters.
81
What are two types of questions that can be asked once a witness has been declared hostile?
When a witness has been declared hostile, the prosecutor may conduct the examination-in-chief like
a cross examination. The witness may be (any two of):
Asked leading questions
* Challenged with regard to how they know the facts about that which they are testifying
* Tested on such matters as to their accuracy of memory and perception.
82
Where the onus falls on the defence to prove a particular element, the standard of proof required is?
on the balance of probabilities
83
Once the judge has granted an application to treat a witness as hostile, that witness may be:
AIT
1. asked leading questions
2. questions as to prior inconsistent statements
3. tested on such matters as the accuracy of his/her memory and perception
84
What is the meaning of veracity?
a disposition to refrain from lying
85
5. The general purpose of the examination-in-chief is to?
Elicit testimony that supports the case of the party calling that witness
86
Corroboration of a complainants statement is not necessary in a criminal proceeding except for the
following offence?
false oaths
87
A witness is eligible to give evidence if?
they are lawfully able to give evidence on behalf of both prosecution and defence
88
Which is not an example where judicial notice can be taken?
the date of birth of a complainant under 16
89
An oath and affirmation may be taken by?
any witness 12 years and over involved in a proceeding
90
Before giving evidence in court, witnesses may refresh their memory from?
a. Their original statement
b. Their deposition
91
Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding?
Any person who is eligible to give evidence is compellable
92
A person is unavailable as a witness when?
The person is overseas and can’t be contacted.
93
A presumption of law?
May be rebuttable or irrebuttable
94
When giving evidence in court, you should address the judge as?
Your honour or Sir/Ma’am
95
The Court has a discretion to include propensity evidence against a defendant, if?
The probative value of the evidence outweighs its prejudicial effect
96
In relation to privilege of medical practitioners, “protected communication” refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient:
1. Who is suffering for a drug dependency
2. Who has any other condition or behavior that manifests itself in criminal conduct
97
A witness is deemed to be hostile when?
Refuses to answer questions or deliberately withholds information
98
It is not necessary in court to prove “uncontroverted facts.” These are admitted as?
Judicial notice
99
Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must?
BOC
a. Be that of an “expert”
b. Comprise “expert evidence”
c. Offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding
d. All of the above (this one)
100
A presumption of fact is?
Always rebuttable
101
Before giving evidence?
The probative value of the evidence outweighs its prejudicial effect
102
What is the general rule in relation to ‘establishing facts?’
All facts in issue and facts relevant to the issue must be proved by evidence
103
It is not necessary in court to prove facts such as ‘the season of summer in New Zealand is over the period of December to February”, these facts are admitted as?
Judicial notice
104
A witness is eligible to give evidence if?
They are lawfully able to give evidence on behalf of both prosecution and defence.
