Evidence Flashcards
What is evidence?
Evidence is the whole body of material which the court or tribunal may take into account in reaching their decision.
What are the three forms of evidence?
Oral, written or visual.
What are the three rules of evidence?
How evidence may be given
Who may give evidence
What type of material may be given in evidence
Define admissible evidence
Evidence legally able to be received by court.
Who is the fact-finder?
The Judge or jury
Define relevant evidence as per S7(3) Evidence Act 2006.
Evidence is relevant if it has the tendency
to prove or disprove anything
that is of consequence to
the determination of proceeding
What are facts in issue?
For prosecution they are the facts they must prove to establish the elements of the offence.
Or when the defendant carries the burden of proof, the facts required to succeed with a defence.
What is a proceeding?
A proceeding conducted by a court, including any interlocutory or other application to a court connected with a proceeding
What is the weight of evidence?
The weight of evidence is its value in relation to the facts in issue. Dependant on a range of factors. The weight is the degree of probative value that can be accorded to the evidence.
What are the three main factors dependent upon in relation to the weigh of evidence? REV
Relevant or conclusive to facts
Extent of support or contradiction by other evidence
Veracity of the witness.
Define probative value.
Is determined by how strongly evidence points to the inference (conclusion).
And how strongly and centrally the evidence assists in proving or disproving the case.
Define prejudicial?
Evidence adverse to a party’s case; the drawing of an inference (conclusion aginst a party).
What does, ‘offer evidence’ mean?
A party ‘offers’ evidence. This includes calling a witness who ‘gives evidence’. A party who testifies both gives and offers evidence. It also includes eliciting evidence by cross-examination a witness called by another party.
In relation to offering evidence, what does S96(1) Evidence Act 2006, Morgan v R state?
merely putting a proposition to a witness is not offering evidence; it becomes so when the witness adopted the proposition.
Define gives evidence.
A person recounting facts or opinions in a proceeding.
What three ways may evidence be given?
The ordinary way - orally in a court room or in an affidavit filed in court and read.
Alternative way - in courtroom but by way of video record or from behind a screen
Any other way
Who is a witness
A person who gives evidence and is able to be cross-examined in a proceeding.
Who is considered a child as per the Evidence Act 2006?
A person under 18 years of age.
Define a statement.
Is a spoken or written assertion by a person intended by that person as an assertion of any matter.
What is a hearsay statement?
A statement made by a person, other than the witness.
Define veracity
A persons disposition (natural tendency) to refrain from lying
Define propensity
A person’s tendency to act in a particular way or have a particular state of mind.
What is direct evidence?
Evidence by a witness as to a fact in issue which they have seen, heard or otherwise experienced. An eye witness.
What is circumstantial evidence?
Evidence of circumstances that do not directly prove any fact in issue, but allow inferences about the existence of those facts to be drawn.
What are the six objectives of the evidence act, as per S6. FEFCUL
Application of logical rules
Rules of evidence that recognise NZBORA
Fairness to parties and witnesses
Confidentiality and other important public interests
Avoiding unjustifiable expense and delay
Access to law of evidence.
What is the fundamental principle for evidence to be admissible?
Evidence must be relevant.
Detail section 7 of the Evidence Act 2006 in relation to the fundamental principle that all relevant evidence is admissible.
(1) All relevant evidence is admissible in a proceeding, except evidence that is:
(a) Inadmissible under this Act or any other
(b) Excluded under this Act or any other
(2) Evidence that is not relevant must not be admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tenancy to prove or disprove anything that is of consequence to the determination of the proceeding.
Summary:
All relevant evidence is admissible unless inadmissible or excluded.
Irrelevant evidence is not admissible
Evidence is relevant if it can prove or disprove any facts in proceeding.
Discuss the general exclusion rule under S8, Evidence Act 2006
(1) In any proceeding, 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 proceeding or
(b) needlessly prolong the proceeding
(2) In determining the above, the Judge must take into account the right of the defendant to offer an effective defence
Summary:
The judge must exclude evidence if probative value is outweighed by risk that is unfairly prejudicial or will needlessly prolong trial. Must take the right of defendant to offer effective defence.
What does Section 9 allow in relation to evidence?
Allows evidence to be admitted by agreement between the parties.
Explain the Woolmington principle
The presumption of innocence. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
In relation to the Woolmington principle and the burden of proof, what is the ultimate question for the jury?
Has the prosecution proven its case
What are the standard of proof for the prosecutions and defence?
Prosecution - must prove beyond a reasonable doubt
Defence - on a balance of probabilities
Define beyond reasonable doubt
An honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.
Define balance of probabilities
More probably than not
For what offences would unsupported evidence of one witness be insufficient to support a conviction?
Perjury and
Treason
What are the five points (summarised) in relation to the adversarial system in relation to questioning witnesses. FWCJD
Facts of the case
Witnesses called
Cross-examine
Judges role - rulings re admissibility
Defendant - doesn’t have to give evidence
What must witnesses who are 12 years or older do before giving evidence? (S77)
Take an oath or affirmation.
For a witness under 12, what must the judge inform them of?
Importance of telling the truth and not telling lies
Make them promise to tell the truth before giving evidence
Explain Section 84 of the Evidence Act 2006 in relation to the examination of witnesses. ECR
Unless the Judge directs otherwise;
(a) a witness first gives evidence in chief and
(b) after chief, the witness may be cross-examined by all parties and
(c) after all parties who wish, have cross-examined the witness, the witness may be re-examined.
If a witness give evidence in an affidavit or by reading FWS it is considered evidence in chief.
Summary:
Evidence in Chief
Cross examination
Re-examination
Summarise the jury trial process.
a) Jury empanelled and foreperson selected. Opening instructions.
b) Crown opening
c) Crown case
d) Defence opening if applicable
e) Defendant case if applicable
f) Crown close
g) Defence close
h) Judge summary
What are the two types of instances where a witness may refresh their memory prior to a proceeding?
Reference to written documentation in court and
Refreshment of memory out of court
Explain refreshing memory in court, under S 90(5)
Where a written record of the details of an event was prepared by a witness at the time of occurrence, that the witness can no longer remember, it makes sense to allow the witness to refer to the document to refresh memory.
If a witness wishes to consult a document whilst giving evidence, what are the four conditions that must be satisfied to ensure the accuracy of the document? LSDS
L - leave of the judge must be obtained
S - document must be shown to all parties involved
D - Document must have been made or adopted by witness at time when memory was fresh
S - made by witness or by another person acting on a witnesses behalf in their presence and assented by the witness.
Summary:
Judge must approve
Copies provided to everyone
Statement made by witness or Officer etc and signed by witness
How does a witness refresh their memory outside of court?
By reading a brief or statement prepared for the proceedings.
Can the documents used to refresh the witnesses memory be used as evidence or cross-examined?
No
Define a hostile witness.
A witness who shows a lack of veracity when giving evidence, unfavourable to the party who called the witness, on a matter they should reasonably be supposed to have knowledge or
Gives evidence inconsistent with a statement made
Refuses to answer questions or deliberately withholds evidence
In relation to Criminal Disclosure as per the Police instructions chapter, when deciding whether information or exhibits supports or rebuts the case the prosecutor should consider what two things?
- If the evidence will help or hinder the defendants ability to defend the charges
- Would or might detract from the prosecutions case, or assist the defence or incriminate another person
Under S103(3) a judges direction for a witness to provide evidence in an alternative way will be made in consideration with the following grounds.
Age and maturity of witness
physical etc impairment of witness
Trauma
Witnesses fears
Cultural background / beliefs
Nature of proceedings
Nature of evidence
Relationship of witness
Absence of witness from NZ
What are the 3 alternative ways evidence could be provided?
In the courtroom behind a screen
Via video link in the courthouse or anywhere else
By way of video recording
Other than the defendant, who is not a compellable witness in court?
The Judge, Sovereign, Governor-General and Head of state of foreign country.
What are examples of privileged material?
Communications with legal advisors
Solicitors trust accounts
Preparatory materials for proceedings
Settlement negotiations, mediation or plea discussions
Communications with ministers of religion
Information obtained by medical practitioners and clinical psychologists
Privilege against self-incrimination
Informer Privilege
What are the two categories that divide character evidence?
Veracity and Propensity
When can propensity evidence be offered in evidence?
S41 - Propensity evidence about defendants
S42 - Propensity evidence about co-defendants
S43 - Propensity evidence offered by prosecution about defendants
Under section 18 of the Evidence Act 2006, explain the general admissibility of hearsay evidence
(1) A hearsay statement is admissible in any proceedings if
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable and
(b) either
(i) the maker of the statement is unavailable as a witness or
(ii) Judge considers that undue expense or delay would be caused if maker required as a witness
Summary:
Reliability and
Unavailability or undue expense or delay
What is the risk with hearsay evidence?
There is danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.
What are the five considerations into the circumstances of a statement. MCNAV
N - Nature of the statement
C - Contents of the statement
M - Circumstances relating to the making of the statement
V - Circumstances relating to the veracity of the statement
A - Accuracy of the observation of the person
When is someone unavailable as a witness?
Dead
Outside of NZ and not reasonably practicable to be a witness
Unfit due to age/physical/mental conditions
Cannot be identified or found
Not compellable
What is identification evidence?
Evidence of identity by a witness stating that a person is the same as someone he or she saw on a previous occasion.
What is visual identification?
an assertion by a person, based wholly or partly on what that person saw
What are the types on visual identification evidence?
Formal procedure (photo montage)
Parade
When would visual identification evidence obtained by way of a formal procedure not be admissible?
If the defendant proved on a balance of probabilities that it is unreliable.
What are considered good reasons for not completing a formal identification?
Singular appearance of suspect (cannot be disguised)
Substantial changed in appearance of suspect since alleged offence
ID not anticipated to be an issue
Offender identified before initial investigation begins.
Chance meeting
Refusal of suspect
What is voice identification?
evidence that is an assertion of a person to the effect that a voice, whether heard first hand or through other transmission or recording is the voice of a defendant or witness
Under S46 of the Evidence Act 2006, when is voice identification evidence admissible?
If the prosecution proves on a balance of probabilities the the circumstances which the identification was made produced a reliable identification.
