Evidence

Question 1

Relation to oaths and affirmations
Witnesses who are 12 years of age or older?
Witnesses under the age of 12?

Answer 1

12 and over must take an oath or affirmation.

Under 12 must make promise to tell truth and Judge tells them the importance of telling the truth and not telling lies.

Any witness of any age can give evidence without oath, affirmation or promise if Judge allows and tells them the importance of telling the truth and not telling lies.

Question 2

When will propensity evidence about a defendant be admissible?

Answer 2

Where the evidence has a probative value that outweighs any unfairly prejudicial effect on the defendant.

Question 3

What is the definintion of relevant under Section 8 of the Criminal Discloure Act?

Answer 3

Information or an exhibit, that tends to support or rebut, or has a material bearing on the case against the defendant.

Question 4

What are the alternate ways that a witness or complainant can give evidence?

Answer 4

• the court room but unable to see the defendant
• from a place outside the courtroom
• by a video record made before the hearing

Question 5

Section 41 of the evidence act 2006 - ability to offer evidence of ‘good’ propensity.

What does this allow the defendant to do?

Answer 5

Allows defendants to offer evidence about themselves perhaps for tactical reasons

• Defendant offers propensity evidence that he has a criminal history as a burglar and was on the property to steal rather than a rape.
• Defendant offers evidence of a daily routine as an alibi.

Question 6

Under section 18 of the Evidence Act 2006 What is the general admissibility of hearsay?

Answer 6

• The circumstances provide reasonable reassurance that the statement is reliable and
• the maker of the statement is unavailable as a witness or
• the judge considers whether undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 7

What is the Sec 8 general Exculsion Evidence Act test?

Answer 7

• balancing the probative value of evidence against the unfairly prejudicial effect on the proceeding or
• needlessly prolong the proceeding.

Evidence will be admitted if its probative value outweighs the risks.

Question 9

What is eligibility and compellability in terms of witnesses?

Answer 9

• All people are eligible to give evidence
• All people who are eligible are compellable to give evidence

Question 10

Sec 73 - Compellability of defendants and co-defendants -
Defendant/Associated defendant compellable?
Proceeding has been determined if?

Answer 10

1) Defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.

2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless -

a) The defendant is being tried separately or

b) The proceeding against the associated defendant has been determined by either the charge withdrawn or dismissed, aquitted or sentenced.

Question 12

Who is the fact finder?

Answer 12

Judge or jury.

Question 13

What is the prosecutions burden of proof?

Answer 13

Beyond reasonable doubt.

Question 14

What is the standard of proof that must be reached for voice identification evidence

Answer 14

Proof of reliability on the balance of probabilities.

Question 15

What is relevant evidence?

Answer 15

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

Question 16

At any time after a person has been charged with an offence, if they request information about an identification witness, what must the prosecutor supply?

Answer 16

• The name of the witness and (if permitted under section 17, the address) of each identification witness whether or not the prosecutor intends to call them;
• A statement of any description of the offender given by each witness to the prosecutor or police, and
• A copy of any picture or a drawing

Question 18

What is admissible evidence?

Answer 18

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

Question 20

Propensity evidence can be given about anyone BUT rules apply if its about the Defendant or Victim
covered by sections 41 to 44

Answer 20

41 - defendant can give evidence about himself eg to say I’m a burglar not a rapist, or a go to the gym every Tuesday at 7pm

42 - defendant can give propensity evidence about a co defendant if relevant and judge approves

43 - prosecutor can offer propensity evidence about defendant if probative value exceeds risks

In sexual cases propensity evidence about a complaint and sexual experience may only be offered in accordance with section 44

Question 21

Timeframe for delivering initial
Disclosure after the commencement of proceedings?

Answer 21

Generally not later than 15 working days

Question 23

What would be deemed to be ‘unavailable as a witness’ or ‘undue expense and delay’?

Answer 23

• Witness is dead
• Witness is outside NZ and it is not reasonably practicable for them to be a witness.
• Witness is unfit due to age or physical/mental condition.
• Witness cannot be found or
• Witness is not compellable to give evidence

Question 24

What is an associated defendant?

Answer 24

• A person whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried.
• The provisions are intended to encompass not only actual co-defendants, but also persons linked to the offending.

A person charged with burglary, both an accomplice who committed the burglary and the person who received the stolen goods would be an associated defendant under Sec 73.

Question 25

Alternative ways of giving evidence
What must the judge regard?

Answer 25

• ensure fairness of the proceeding so there is a fair trial
• views of the witness
• the need to minimize stress on the witness
• the need to promote recovery of the complainant from alleged offence
• any other relevant factor to the determination of the proceeding

Question 26

When a witness needs to refresh their memory during questioning, from a statement they have made, what must the prosecutor do?

Answer 26

Seek the leave of the judge to grant the request

Question 27

Define reasonable doubt…

Answer 27

After considering all the evidence, you have a reasonable uncertainty left in your mind about the guilt of the accused.

Question 28

Define veracity.

Answer 28

The disposition of a person to refrain from lying.

Question 29

When does full disclosure occur?

Answer 29

• Full disclosure occurs as soon as practicable after defendant pleads not guilty
• First appearance for CYP at Youth Court

Question 31

The Evidence Act 2006 divides what was called “character”evidence in common law into two classes of evidence. What are they?

Answer 31

Veracity – deposition to refrain from lying, and
Propensity – tendency to act in a particular way

Question 32

Define prejudicial.

Answer 32

Evidence adverse to a party’s case and may harm or influence people unfairly.

Question 34

Burden for defence is….

Answer 34

On the balance of probabilities.

Question 35

What must the judge take into account when assessing the probative value of evidence in regards to propensity?

Answer 35

• The frequency of the acts
• How closely in time the acts are committed to the current offending
• Do the acts share similar unusual features
• Similarity between the previous acts and those currently alleged
• The number of people making the allegations against the defendant

Question 36

What conditions are there for a witness and refreshing memory in court?

Answer 36

• Leave of the judge must be obtained
• The document must be shown to every other party in proceeding
• The documents have been made or adopted by a witness at the time when his or her memory was fresh
• The document must’ve been made by the witness or by another person in his or her presence

Question 37

What is the basic rule in regards to the non-compellability of a defendant?

Answer 37

A defendant is an eligible but not compellable witness for either the prosecution or defence.

e.g he or she can give evidence but doesn’t have to.

Question 38

Sec 8 Evidence Act - General exclusion of evidence - In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—what ?

Answer 38

(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

Question 39

Admissibility of voice identification evidence…
Inadmissible unless..

Answer 39

The prosecution proves on the balance of probability that the circumstances in which the ID was made have produced reliable ID.

Question 40

When is Visual Identification Evidence admissible?

Answer 40

If formal procedure is followed (eg photo board procedure) by an enforcement officer or there is good reason for it not to be followed in regards to a person alleged to have committed an offence, that evidence is admissible unless the defendant proves on the balance of probabilities that it is unreliable.

Question 41

Reasons why evidence can be given in an alternative way.

Answer 41

• FEAR of intimidation
• TRAUMA suffered
• The AGE or maturity of the witness
• LINGUISTIC or cultural background or religious beliefs
• The physical, intellectual, psychological or psychiatric IMPAIRMENT of the witness
• ABSENCE or likely absence from NZ
• NATURE of the evidence the witness will give
• NATURE of the proceeding

Question 42

What is the ‘Woolmington Principle’?

Answer 42

The fundamental principle in the presumption of innocence.

The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 43

Define propensity.

Answer 43

A person’s tendency to act in a particular way or have a particular state of mind.