Evidence Flashcards

1
Q

Define 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, evidence may be oral, written or visual

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Define facts in issue

A

Facts in issue are those which
i. Prosecution must prove to establish the elements of the offence
ii. The defendant must prove to succeed with a defence l, in respect of which they carry the burden of proof

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Define veracity

A

The disposition of a person to refrain from lying, generally or in the proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Define witness

A

This is a person who gives evidence and is able to be cross examined in a proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Define Relevance

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Evidence may be given in a number of ways list examples

A

Ordinary way - either orally in the courtroom in the presence of a judge
Alternative way - in courtroom but unable to see defendant or other person, outside the courtroom or by video recoding made before hearing
Any other way- provided for by evidence act 2006 or any other enactment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

List two ways of alternative ways of giving evidence

A

In courtroom but unable to see the defendant
By video recording made before the hearing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Define statement

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Define direct evidence

A

This is any evidence given by a person as to the fact in issue that he or she has witnessed by seeing, hearing, or otherwise experienced

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Define circumstantial evidence

A

This is evidence of circumstances that do not directly prove any facts in issue but which allow an inference about the existence of those facts to be drawn

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Explain weight of evidence

A

The weight of evidence is it’s value in relation to the facts of issue the value will depend on a wide range of factors such as
A) the extent to which, if accepted it is directly relevant to or conclusive of the facts
B) the extent to which if supported or contradicted by other evidence produced
C) the veracity of the witness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are two ways in which unfairness arises and may result in the exclusion of evidence

A

Have an unfairly prejudicial effect on proceedings
Needlessly prolong the proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What did Woolmington v DPP establish

A

The burden of proof clearly lies with the prosecution to prove all elements of the offence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Fundamental principle in criminal law is the presumption of innocence and the burden of proof lies with the prosecution, explain butane of proof and the balance of probabilities

A

A) beyond reasonable doubt is the standard of proof, the jury needs to be satisfied of guilt before a conviction can be obtained
B) balance of probabilities is the standard of proof required for defence to prove a particular element in the case, requires a reasonable standard of proof but not so high as beyond reasonable doubt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

R v Wanhalla a jury is told that reasonable doubt is

A

An honest and reasonable uncertainty in your mind about the guilt of the defendant after you have given careful consideration to all the evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is the purpose of evidence Law and give 4 examples

A

The purpose of the act is to help secure just determination of proceedings by
Enhancing access to the law of evidence
Avoiding unjustified expense and delay
Protecting the rights of confidentiality and other important public interests
Promoting fairness to witnesses and parties
Providing rules that recognise the importance of the rights affirmed by the NZBOR 1990

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What are the presumptions of law and give an example

A

Presumptions of law are inferences that have been expressly drawn by law from particular facts, may be either conclusive or rebuttable

Eg a child under 10 is unable to be convicted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What are presumption of facts

A

Presumption of facts are those that the mind naturally and logically draws from the given facts. They are logical inferences, and so are always rebuttable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence
Name two exceptions

A

Exceptions are when no evidence needs to be given because of
Judicial notice
Facts are formally admitted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Explain the concept of judicial notice Section 128 and section 129

A

When a court takes judicial notice as fact it declares that it will find that the fact exists or will direct the jury to do so even though no evidence has been established the fact exists

Eg the if the date of Christmas were an issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

In deciding wether evidence is admissible the courts have reference to certain principles to determine admissibility what are four of these principles of admissibility

A

Reliability
Relevance
Unfairness
Public interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

When might relevant evidence not be admissible

A

It is inadmissible under this act or any other act
Excluded under this act or any other act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Explain the term relevance

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When might relevant evidence be excluded for unfairness

A

Evidence may be excluded if it would result in some unfair prejudice in the proceeding
Evidence may be excluded if it is obtained by unfair or improper means

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Section 8 of the evidence act provides that the judge must exclude evidence of its probative value is outweighed by the risk that the evidence will be one of two things name both

A

Have an unfairly prejudicial effect on the proceeding
Needlessly prolong the proceeding

26
Q

If evidence is admitted for what purposes can it be used for

A

Once admitted, generally used for all purposes
The stature proceeds on the basis that generally speaking evidence is either admission or for all purposes or not admissible at all (HART)

27
Q

List matters that the exclusive rules of evidence deal with

A

Veracity
Propensity
Hearsay
Opinion
Identification
Improperly obtained evidence

28
Q

Section 37 deals with veracity rules of evidence list 4 points under this section a judge must take into account wether determine veracity evidence

A

Lack of veracity on the part of a person when under legal obligation to tell the truth
The person has one or more convictions indicating dishonesty
Any previous inconsistent statements made to police
Bias on the part of the person
A motive unhelpful to the truth

29
Q

The prosecution may only offer evidence about a defendant’s veracity if

A

The defendant has offered evidence regarding their veracity or has challenged the veracity of a witness
When the judge permits it

30
Q

What does propensity evidence mean

A

Means evidence that tends to show a persons propensity to act in a particular way or in a particular state of mind being acts, omissions, events or circumstances with which a person is alleged to have been involved

31
Q

What does propensity evidence not include

A

Evidence of an act or omission that is one of the elements of the offence they stand accused
The cause of the act in question
Evidence that is solely about veracity

32
Q

Define hearsay

A

A statement made by a person other than the witness
A statement offered in evidence to prove the truth of it’s contents

33
Q

Why is hearsay excluded, list three reasons for the rule against hearsay

A

Where the maker of the statement is not called as a witness there is no opportunity to cross examine them
Juries can not evaluate the evidence properly without being able to see the demeanour of the maker of the statement
Danger witnesses making mistakes about the meaning or content of the statement made by other people

34
Q

List 4 reasons a witness may be unavailable

A

Dead
Is outside of NZ and not practicable for them to be a witness
Is unfit to be a witness due to age, health, mental condition
Cannot be found after reasonable diligence
Is not compellable to give evidence

35
Q

What is a business record

A

A document that is made to comply with a duty or in the course of a business and as a record or part of a record of that buisness

36
Q

Why is opinion evidence unreliable or excluded

A

Where a witness offers bare opinion it holds little probative weight
There is a danger that opinion evidence will usurp the function of tribunal of fact
A witness’s evidence of opinion may be based on other evidence which would be inadmissible

37
Q

When is non expert opinion evidence allowed

A

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable a witness to communicate, or the fact finder to understand what the witness saw, heard or otherwise perceived

38
Q

In order to be admissible under section 24 the statement of opinion must fulfil two basic criteria what are they

A

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

39
Q

Expert opinion evidence admissibility under section 25

A

Must be that of an expert
Comprise expert evidence
Offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

40
Q

Define expert witness

A

A person with specialised knowledge or skill based training, study or experience

41
Q

Things to verify with a witness before summoning them to court

A

Wether they are looked to give evidence
Wether they are required to give evidence
Wether they can refuse to give evidence
What type of witness they will be

42
Q

What does section 71(1) say about eligibility and compellability

A

Any person is eligible to give evidence and that person who is eligible to give evidence is compellable to give that evidence

43
Q

Compellability if defendants and associated defendants

A

A defendant is not a compellable witness for the prosecution or defendant
An associated defendant is not compellable against a defendant unless
They are being tried separately from the other defendant
The proceeding against them has been determined

44
Q

What is an associated defendant

A

Is a person whom a prosecution has been instituted for
An offence that arose in relation to the same events as the offence for which the defendant is prosecuted
An offence that relates to or is connected with the offence which the defendant is being prosecuted

45
Q

Explain privilege and who has privilege

A

Privilege is the right to refuse to disclose or to prevent disclosure of what might otherwise be admissible evidence

Communication with legal advisors
Communication with minister of religion
Solicitors trust account
Settlement negotiations
Information obtained from medical practitioners and clinical psychologist
Preparatory materials for proceedings

46
Q

Under section 59 limited privilege protecting information obtained from medical practitioners or clinical psychologists whom does this apply and not apply

A

Applies to a person who consults or is examined for drug dependency, or other condition or behaviour that may manifest itself in criminal conduct

Does not apply to a person who has been required by a judge, lawful authority to submit themselves for medical examination

47
Q

Privilege against self incrimination

A

Applies when a person is required to provide specific information in the course of a proceeding or by a person exercising a statutory power or duty which provided would be likely to incriminate them under NZ law for an offence punishable by a fine or imprisonment

48
Q

Previous consistent statement rule

A

A previous consistent statement is not admissible unless
Responds to a challenge about the witnesses veracity or accuracy based on a previous inconsistent statement or claim of invention on the part of the witness
Forms an integral part of events before court
Consists of mere fact a compliant has been made in a criminal case

49
Q

Under section 121 it is not necessary in a criminal proceeding for the evidence to on which the prosecution relies to be corroborated except for what offences

A

Perjury, false oath, false statement or declaration, treason

50
Q

What is a judges role in a jury trial

A

Decide all questions regarding admissibility of evidence
Explain and enforce the general principles of law applying to the point of issue
Instruct jury on rules of law by which evidence is weighed once it is submitted

51
Q

Comments on defendants right to silent

A

No person other than the defendant, counsel or the judge may comment on the fact the defendant did not give evidence

52
Q

Define leading question

A

A question that directly or indirectly suggests a particular answer to the question

53
Q

General rule of leading questions is that they are not to be put to a witness what are the 3 reasons why

A

There is a natural tendency for people to say yes
Counsel can more easily get the answers that they are wanting to recieve
There is a danger that the leading questions will result in the manipulation or construction of evidence between counsel and the witness

54
Q

When are leading questions allowed

A

The question relates to an introductory or undisputed matters
The question is put with consent of all parties
The judge allows the question

55
Q

Can a witness refresh their memory before court

A

A witness may refresh their memory by reference to statements they have previously made, may check their recollection of events with officer that interviewed them and so forth

56
Q

A witness can refresh their memory with a document in court on the conditionsb

A

The leave of the judge is obtained
The document must be shown to all parties in the proceeding
The document must have been made at the time when the memory was fresh

57
Q

Define hostile witness

A

Exhibits lack of veracity when giving evidence unfavourably to the party who called the witness on a matter the witness may reasonably have knowledge
Gives evidence that is inconsistent with a statement made by the witness that exhibits an intention to be unhelpful to the party who called the witness
Refuses to answer or deliberately withholds evidence

58
Q

If a witness is declared hostile what may be asked

A

Leading questions
Questions designed to probe accuracy of memory or perception
Questions as to prior inconsistent statements
Challenges to veracity, including evidence from other witnesses

59
Q

The burden of proof lies with the prosecution except where

A

The defence of insanity is used
Specific statutory exceptions exists
The offence is a public welfare regulatory offence

60
Q

When may a hearsay statement be admissible

A

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

61
Q

Unacceptable questions when may a judge allow a witness not to answer a question

A

Any question which the judge seems to be improper, unfair, misleading, needlessly repetitive or expressed in a language to complicated for the witness to understand need not answer