Evidence

Question 1

Define Evidence

Answer 1

The whole body of material which a court or tribunal may take into account in reaching their decision.

Evidence may be in oral, written or visual form.

Question 2

Define Admissible evidence

Answer 2

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

Question 3

Define Relevance

Answer 3

Evidence that has a tendency to prove or disprove anything that is of consequence to the outcome of proceedings.

Question 4

Define Facts in issue

Answer 4

• Facts the prosecution must prove to establish the elements of the offence, or
• Facts the defendant must prove to succeed with a defence, in respect of which they carry the burden of proof

Question 5

Define Exclusionary rules

Answer 5

Rules that exclude evidence, usually because it is:

• unreliable
• unduly prejudicial or
• otherwise unfair to admit

Question 6

Define Weight of evidence

Answer 6

The “weight” of evidence is its value in relation to the facts in issue.

The value will depend on if it is:

• Directly relevant to the facts in issue.
• Is supported or contradicted by other evidence produced, and;
• The veracity of the witness.

Question 7

Define Witness

Answer 7

Any person who gives evidence and is able to be cross-examined in a proceeding.

Question 8

Define Party

Answer 8

Party means a party to a proceedings

Question 9

Define Offer Evidence / give evidence

Answer 9

Evidence must be elicited before it is “offered”: Merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition.

Give evidence “Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”.

Question 10

How may evidence be given?

Answer 10

1. Orally in court with the presence of judge, jury, parties, counsel, and approved public members.
2. Through an affidavit filed in court.
3. Reading a written statement in court with mutual consent.
4. In court without visual contact with the defendant or others.
5. Outside the court or via pre-recorded video.
6. Any other method allowed by the Evidence Act 2006 or relevant laws.

Question 11

Define Incriminate

Answer 11

To provide information that is reasonably likely to lead to or add to the prosecution of a person for a criminal offence.

Question 12

Define Statement

Answer 12

This is a spoken or written, or non-verbal conduct of a person intended by that person as an assertion of any matter.

Question 13

Define Hearsay Statement

Answer 13

This is a statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents.

Question 14

Define Direct Evidence

Answer 14

Any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced.

(e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife).

Question 15

Define Circumstantial evidence

Answer 15

Evidence of circumstances that does not directly prove any fact in issue but which allow inferences about the existence of those facts to be drawn.

I.e. the defendant was seen in the vicinity of the scene of the crime.

Question 16

Define Enforcement agency

Answer 16

Any body or organisation that has a statutory responsibility for the enforcement of an enactment

Includes:
* Customs
* Fsheries
* IRD
* Police.

Question 17

Define Hostile Witness

Answer 17

Means a witness that:

• appears to exhibit a lack of veracity when giving evidence unfavorable to the party who called them.
• gives evidence that is inconsistent with a statement made by that witness.
• refuses to answer questions or deliberately withholds evidence.

Whether the witness is hostile in one of these ways is a question of law for the Judge to decide upon application.

Question 18

Define Veracity

Answer 18

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

Question 19

What is established in the Woolmington principle?

Answer 19

The Woolmington principle is the presumption of innocence.

The burden of proof lays with the prosecution in relation to proving all of the elements of the offence to prove it beyond reasonable doubt.

Question 20

What are the exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant?

Answer 20

1. The defence of insanity is claimed.
2. If a specific statutory exception exists.
3. The offence is a public welfare regulatory offence (Strict liability offence).

Question 21

What are the two standards of proof for prosecution and defence?

Answer 21

1. The prosecution must prove the offence beyond reasonable doubt.
2. The defence is on the balance of probabilities.

Question 22

Definition of Beyond reasonable doubt

Answer 22

A very high standard of proof which will have only been met if the judge or jury are sure that the accused is guilty.

Question 23

Define Balance of Probabilities

Answer 23

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. If the probabilities are equal, the burden is not discharged.

Question 24

What are the six objectives set out in section 6 (purpose) of the evidence act?

Answer 24

It helps secure the just determination of proceedings by:

Providing - Providing for logical rules for facts to be established.

Providing - Providing rules that recognise the importance of Bill of Rights Act.

Promoting - Promoting fairness to parties and witnesses.

Protecting - Protecting confidentiality and other important public interests

Avoiding - Avoiding unjustifiable expense and delay.

Enhancing - Enhancing access to the law of evidence.

Question 25

What are the exceptions to the general exclusion rule when no evidence needs to be given of facts?

Answer 25

The two main exceptions to the general rule are when no evidence needs to be given of facts because:

• judicial notice is taken
• the facts are formally admitted.

Question 26

What is Judicial Notice?

Answer 26

When a court takes judicial notice of a fact, it declares that it will find that the fact exists, even though evidence has not been established that the fact exists.

Question 27

What are section 128 and 129 Evidence Act regarding Judicial Notice?

Answer 27

Section 128 - A Judge or jury may take notice of facts so known and accepted either generally or in the area in which the proceeding is being held that they cannot reasonably be questioned.

Section 129 - Admitted accredited scientific works, histories, and maps may be admitted as evidence in order to prove facts of a public nature.

Question 28

What are the three principles of evidence law which help determine if evidence is admissible?

Answer 28

• Relevance
• Reliability
• Unfairness

Question 29

What is the general exclusion rule (Section 8)?

Answer 29

The judge must exclude evidence if its probative value is outweighed by the risk that the evidence will;

(a) have an unfairly prejudicial effect on the proceeding; or

(b) needlessly prolong the proceeding.

Question 30

When is relevant evidence inadmissible – Section 7? (Rule)

Answer 30

All relevant evidence is admissible in a proceeding except evidence that is:

• Inadmissible under this act or any other act or;
• Excluded under this act or any other act
• Not relevant

Question 31

What are two situations where evidence would be excluded due to unfairness?

Answer 31

1. If it would result in unfair prejudice in the proceeding
2. Where evidence has been obtained in circumstances that would make its admission against the defendant unfair.

Eg. where a defendants statement has been obtained by unfair or improper methods

Question 32

Specific restrictions aside, if evidence is admitted, for what purposes can it be used?

Answer 32

Once evidence is admitted it is either admissible for all purposes or it is not admissible at all – R v Hart

Question 33

The exclusive rules of evidence deal with what evidence?

Answer 33

The exclusive rules of evidence deal with:
* Veracity
* Propensity
* Hearsay
* Opinion
* Identification
* Improperly obtained evidence.

Question 34

What are the two classes of evidence for character evidence?

Answer 34

Veracity evidence - A disposition to refrain from lying and;

Propensity - A tendency to act in a particular way

Question 35

When deciding if evidence may be offered about the veracity of a person, the Judge may consider what?

Answer 35

Is it substantially helpful in assessing that person’s veracity?

(a) lack of veracity on the part of the person when under a legal obligation to tell the truth.

(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) motive to be untruthful by the person.

Question 36

What is the propensity rule of evidence?

Answer 36

Propensity evidence shows a person’s tendency to behave or think in a certain way. It includes evidence of actions or circumstances they’ve been involved in, but it doesn’t cover acts that are:

• Elements of the offense they’re being tried for.
• Or the cause of action in the proceeding.

Question 37

What is the general admissibility of hearsay? (rule)

Answer 37

A hearsay statement is admissible in any proceeding if

• The circumstances relating to the statement show it is reliable and;
• The maker of the statement is unavailable as a witness or;
• Undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 38

What is the rationale for rules against hearsay evidence?

Answer 38

• hearsay evidence lacks reliability.
• It can’t be tested through cross-examination
• Juries rely on observing witnesses to understand evidence accurately.

Question 39

Section 16(1) Evidence Act 2006 defines “circumstances” in relation to a statement by a person who is not a witness (hearsay evidence).

What considerations should be made in relation to hearsay evidence statement being made?

Answer 39

(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

Question 40

What are examples of a witness being unavailable?

Answer 40

• They are dead.
• They are outside New Zealand and it is not reasonable practicable for him or her to be a witness.
• They are unfit to be a witness because of age or physical or mental condition.
• They cannot with reasonable diligence be identified or found.
• They are not compellable to give evidence.

Question 41

Define Opinion

Answer 41

“a statement of opinion that tends to prove or disprove a fact”

Question 42

What is the general exclusionary rule for opinions? (section 23)

Answer 42

A statement of opinion is not admissible in a proceeding except if:

S24 - it is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived, or;

S25 - Expert Evidence

Question 43

In order to be admissible under section 24 (non-expert opinion), the statement of opinion must fulfil basic what criteria?

Answer 43

• Opinion must be the only way in which to effectively communicate the information to the finder of fact.
• The witness must be stating an opinion from something personally perceived.

Question 44

Define expert?

Answer 44

A person who has specialised knowledge or skill based on training, study or experience.

Question 45

If the evidence is opinion evidence, in order to comply with section 25 (expert evidence), the opinion must what?

Answer 45

• Be that of an expert.
• Comprise expert evidence And;
• Offer substantial help to the fact finder in understanding other evidence OR ascertaining any fact in the proceeding.

Question 46

Section 25(1) provides that expert opinion evidence will be admissible if the fact-finder is likely to obtain substantial help from the opinion in what?

Answer 46

• Understanding other evidence or;
• in ascertaining any fact in the proceeding

Question 47

What is the conduct of experts?

Answer 47

• Qualifications: State their qualifications.
• Reasons: Clearly state reasons for their opinions.
• Facts: Clearly state the facts, matters, and assumptions.
• Materials: Must mention literature/materials used.
• Area: Stay within their area of expertise.
• Remember: Qualify incomplete or inaccurate evidence.
• Expert’s Duty: Assist the Court impartially.
• Advocate: Not an advocate for any party.

Remember “QRF MAR EAN”. This mnemonic should help you recall the key points more easily.

Question 48

An associated defendant is not compellable to give evidence for or against a defendant unless what two situations apply?

Answer 48

1. The associated defendant is being tried separately to the defendant
2. The proceeding against the associated defendant has been determined

Question 49

What are types of privilege?

Answer 49

Lawyers - Communications with legal advisors

Ministers - Communications with ministers of religion

Solicitors - Solicitors trust accounts

Medical / Psychological - Information obtained by medical practitioners and clinical psychologists

Informants - Informer privilege

Preparatory - Preparatory materials for proceedings

Settlement - Settlement negotiations or mediation

Privilege - Privilege against self incrimination

Question 50

What is the meaning of self-incrimination under s4 of the Evidence Act 2006?

Answer 50

“a person providing information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence”.

Question 51

What must a person provide to claim privilege against self-incrimination in a court proceedings?

Answer 51

A person who claims privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the judge to assess whether self-incrimination is reasonably likely if the person provides the required information.

Question 52

Corroboration is required as a matter of law in some circumstances.

There are offences in which the unsupported evidence of one witness is insufficient to support a conviction. What are these offences?

Answer 52

• Perjury
• False oaths
• False statements and declarations
• Treason

Question 53

Define Informer

Answer 53

An informer is someone who provides information to law enforcement, expecting that their identity will be kept confidential, whether they do so voluntarily or for a reward.”

Question 54

When would a communication with a legal adviser be ‘privileged’?

Answer 54

“Communications between a person and their legal adviser for seeking or getting legal advice are privileged.

Also, witnesses who have been contacted about potential legal proceedings are also covered by privilege.”

Question 55

What is the judges role in trial by jury?

Answer 55

Decide - Decide on questions concerning admissibility of evidence

Explain - Explain the general principles of law applying to the point at issue

Instruct - Instruct the jury on the rules of law by which evidence is to be weighed.

Question 56

What must a judge not do in relation to children giving evidence under section 125?

Answer 56

The judge cannot give the following directions unless there is expert evidence supporting them in the proceeding:

1. Warn the jury about the lack of corroboration of the complainant’s evidence if the judge wouldn’t have given such a warning if the complainant were an adult.
2. Provide any direction or comment suggesting the need to scrutinize children’s evidence more carefully or implying that children generally tend to make up or distort facts.

Question 57

Define Leading Question

Answer 57

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

Question 58

What is the prohibition on leading questions rule? / Why are leading questions generally not allowed?

Answer 58

Leading questions are generally not allowed during evidence in chief or re-examination.

They can lead to unreliable evidence because:

1. People may agree with suggestions even if they don’t precisely match their own perspective.
2. Counsel can manipulate answers from their own witnesses.
3. There’s a risk of manipulation or fabrication of evidence through collusion between counsel and witnesses, whether intentional or not.

Question 59

When are leading questions permitted?

Answer 59

1. To direct the witnesses attention to the subject or identification evidence.
2. Questions about surrounding circumstances to jog a witness’s memory about some fact or event in issue.
3. 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.

4. Where the witness has been declared hostile.

Question 60

There are a number of warnings or directions that a judge may issue in relation to matters that arise during the trial. These include what?

Answer 60

• warnings about the way evidence is given during the proceeding.
• A warning about evidence that may be unreliable.
• A warning about lies.

Question 61

What is the previous consistent statement rule?

Answer 61

A previous statement made by a witness that is consistent with the witness’s evidence is inadmissible at trial unless exceptions found in the section apply.

Exceptions are if it;

(a) responds to challenges made about witness’s veracity or accuracy based on a previous inconsistent statement. ; or

(b) forms an integral part of the events before the court; or

(c) consists of the mere fact that a complaint has been made in a criminal case

Question 62

What is the purpose of cross examination?

Answer 62

There are two purposes of cross-examination:

1. to get information supporting the case of the party conducting the cross-examination.
2. 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).

Question 63

What are the judicial warnings that a judge may give jury?

Answer 63

• 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

Question 63

What witnesses must take an oath of affirmation before giving evidence?

Answer 63

• Witnesses aged 12 or older must swear or affirm before giving evidence.
• Those under 12 must be told by the judge about the importance of honesty and then promise to tell the truth.
• Exceptions include children unable to make such a promise and adults with intellectual disabilities, with the judge’s approval.

Question 64

When should a Judge consider whether to give Judicial directions about evidence that may be unreliable?

Answer 64

• Hearsay evidence
• Sole evidence implicating the defendant if it’s a statement made by the defendant
• Testimony from a witness with a motive to give false evidence that is prejudicial evidence against the defendant
• Statements made by the defendant to someone else while both were detained
• Evidence of the defendant’s conduct alleged to have happened over 10 years ago

Question 65

Definition of evidence in rebuttal

Answer 65

• Either party can present additional evidence after completing their case, but only with court permission.
• The prosecution may be allowed to present further evidence if it relates to;

1. a procedural matter
2. an unexpected defense issue
3. previously unavailable evidence, or
4. if it serves the interest of justice.

• The defendant can also seek permission to present additional evidence if it serves the interest of justice.

Question 66

Who can comment on the defendants right of silence?

Answer 66

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 his or her trial.

Question 67

What factors may a Judge take into account when deciding to direct if a witness is not obliged to answer any questions that are improper, unfair, misleading, needlessly repetitive or expressed in language that is too complicated?

Answer 67

Judge may take into account;

(a) the age or maturity of the witness; and

(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and

(c) the linguistic or cultural background or religious beliefs of the witness; and

(d) the nature of the proceeding; and

(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

Question 68

What is a hearing in chambers and when would it be used?

Answer 68

A ‘hearing in chambers’, or ‘chambers hearing’ is where the jury is excluded from the courtroom for the duration of an admissibility hearing which governs evidence given by a witness and is used to discuss the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Question 69

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

Answer 69

1. Ask the courts permission
2. Introduce the material - eg. I interviewed the defendant and wrote the answers in my notebook.
3. Defence and jury are entitled to view your notes to seal off entities.
4. You may only refresh your memory. If you would like to read word for word from your notebook, you need permission.