Evidence Flashcards
Evidence of sexual experience in sexual cases
44 Evidence Act 2006
(1) No question/evidence as to witness sexual experience other than that of with the defendant, except with permission of judge.
(2) No question/evidence as to the reputation of the complainant.
(3) If application for permission under (1) Judge must not grant permission unless satisfied evidence/question is of relevance to the facts in issue, or issue of appropriate sentence, that it would be contrary to the interest of Justice to exclude it.
(4) the permission of judge is not to rebut or contradict evidence given under (1)
(5) If defendant is charged as a party and cannot be convicted unless it is shown that the other person committed a sexual assault against the complainant, (1) does not apply to any evidence/questions, that relate to sexual experiences of that complainant with that other person.
Privacy as to witness precise address.
87 Evidence Act 2006
(1) In any proceedings, the precise particulars of a witness address, may not, without the permission of the judge be -
a) the subject of any question or included in any evidence, or
b) included in any statement or remark made by a witness, lawyer, officer of the court or other person.
(2) Judge must not grant permission under (1) unless satisfied that the question, evidence, statement is sufficient and relevant to the facts.
Restriction on disclosure of complainants occupation in sexual cases.
88 Evidence Act 2006
(1) In sexual cases, except with permission of the judge -
a) no question put to anyone, or any evidence given relating to complainants occupation, AND,
b) no statement or remark made by a witness, lawyer, officer of the court or other person, about complainants occupation.
(2) Judge must not grant permission under (1) unless satisfied that the question, evidence, statement is sufficient and relevant to the facts.
Corroboration
121 Evidence Act 2006
(1) Not necessary in criminal proceedings for evidence for prosecution, be corroborated, except for -
a) perjury
b) flase oath
c) false statement/declaration
d) treason
(2) If a jury - not necessary for the judge to
a) warn jury, it’s dangerous to act on uncorroborated evidence
b) give a direction relating to absence of corroboration.
Previous consistent statement rule
35 Evidence Act 2006
A previous statement of a witness that is consistent with their evidence is not admissible unless it’s needed to respond to a challenge, accuracy, or inconsistencies. Provides reassurance that the previous statement is reliable and provides info witness can not recall.
Why are video recorded interviews used?
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Due to the sensitive nature of sexual complaints, courts have allowed this to minimize stress to the complainant and ensure that an account of events, recorded as close in time to the offence as practicable, is put before the court.
When should level 3 specialist interviewers be used?
Whenever possible when interviewing witnesses to, or complainants of, major offences, eg, homicides, sexual and serious Assaults, aggravated robberies with firearms, Kidnapping, abduction etc.
Advantages of L3 interview?
Greater quality and quantity of info, minimize trauma to witness by simplifying the process and having their interview played as their evidence in chief, reduce contamination by the interviewer, providing a valuable means to refresh their memory before judicial proceedings.
How does a child DVD interview meet the needs of a child?
Meets the needs because:
- The interview process focuses on the needs of the child.
- Allow them to state clearly and freely what has happened.
- The recorded interview can be used for the basis of the investigation, subsequent criminal proceedings and/or care and protection matters.
- Avoids the need to re-interview the child.
Directions under 103(3) Evidence Act 2006? Grounds for alternative evidence.
Witness to give evidence in alternative way, may be made on grounds of -
- maturity
- physical, intellectual, psychological, or psychiatric impairment of witness
- trauma suffered
- witness fear of intimidation
- cultural background
- nature of proceedings
- nature of evidence
- relationship of witness to any party in the proceedings
- Physically out of NZ
Requirements under reg 28 Evidence Regulations 2007?
- Transcript to be provided to defendant or lawyer when pleads not guilty.
- Transcript prepared by Police
- Court may adjourn the hearing to allow Def to consider transcript
105 Evidence Act 2006, ways witness can give evidence.
- In court but unable to see the defendant or other person (Screens)
- Appropriate place outside of court room, AVL, either in NZ or out.
- Video recording made before the hearing
Safe and secure environment for victims of sexual offences - what to do (CALM TEA)
- Conduct dealings in a sensitive manner
- Accept they are telling the truth
- Listen to what they tell you, give them the opportunity to tell their account
- Establish if medical attention is required
- Treat them courteously
- Explain the process
- Advise on counseling services
Medical exam, what to explain to the victim
- Explain medical will be carried out by forensic medical practitioner specially trained in sexual offence cases
- The benefits of full exam including physical, mental and sexual health
- How the exam can help to obtain evidence to apprehend the offender
- The expected time for the examination
Three areas when determining whether physical abuse is serious and meets CPP threashold
- Action of abuse
- Injury inflicted
- Circumstances
