Evidence

Question 1

Evidence (Definition)

Answer 1

• Is the term for the whole body of material
• Which a court or tribunal (i.e. in criminal cases the judge or jury) may take into account in reaching their decision
• Evidence may be in oral, written or visual form

Question 2

Admissible Evidence (Definition)

Answer 2

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

Question 3

Witness (Definition)

Answer 3

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

Question 4

Facts In Issue

Answer 4

• Prosecution must prove to establish the elements of the offence, or
• Defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof

Question 5

Weight of Evidence

Answer 5

• Extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• Extent to which it is supported or contradicted by other evidence produced
• Veracity of the witness

Question 6

Giving Evidence

Answer 6

• In the ordinary way – either orally in a courtroom in the presence of a judge, jury or reading a written statement in a court room
• In an alternative way
• in the courtroom but unable to see the defendant or other person
• outside the courtroom by audio-video link,
  or by video recording made before the hearing
• In any other way - provided for by the Evidence Act 2006 or any other relevant enactment

Question 7

Incriminate

Answer 7

Provide information
likely to lead to or increase the likelihood of the prosecution of a person for a criminal offence.

Question 8

Direct Evidence (Definition)

Answer 8

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

Question 9

Circumstantial Evidence (Definition)

Answer 9

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

Question 10

Woolmington principle

Answer 10

is the presumption of innocence. This principle establishes that, subject to specific statutory exceptions,
the burden of proof lies clearly with the prosecution
in relation to all of the elements of the offence.

Question 11

Woolmington Exceptions

Answer 11

The burden of proof lies with the prosecution except where (burden of proof is placed on the defendant):
The defence of insanity is claimed (S23(1) of the Crimes Act 1961)
Specific Statutory exceptions exist (e.g. S202A (4)(b) – defendant to prove absence of intent) The offence is a Public welfare regulatory offence

Question 12

Standard of Proof

Answer 12

Any party bearing a legal burden of proof must discharge this burden to the standard required
If legal burden is on the prosecution, it must be discharged beyond reasonable doubt
Where the defence bears the burden, it need only be proved on the balance of probabilities

Question 13

R v WANHALLA

Answer 13

Juries should be told that a reasonable doubt is an
honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence

Question 14

Beyond reasonable Doubt (Definition)

Answer 14

Beyond reasonable doubt: is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict

Question 15

Balance of probabilities (Definition)

Answer 15

Balance of probabilities: is the standard of proof required for the defense to prove a particular element of its case (e.g. insanity).
It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case.
If the evidence is such that the tribunal can say:
“We think it more probable than not”, the burden is discharged;
if the probabilities are equal, the burden is not discharged.

Question 16

Purpose of Evidence Law (S6 Evidence Act 2006)

Answer 16

The purpose of this Act is to help secure the just determination of proceedings by:
c) promoting fairness to parties and witnesses; and
d) protecting rights of confidentiality and other important public interests; and
e) avoiding unjustifiable expense and delay; and
f) enhancing access to the law of evidence.

Question 17

Establishing facts, exceptions and presumptions

Answer 17

A general rule of evidence is that:
All facts in issue and facts relevant to the issue must be proven by evidence – two exceptions (when no evidence needs to be given of facts) are where:
Judicial notice is taken of facts
The facts are formally admitted

Question 18

Judicial Notice

Answer 18

When a court takes judicial notice of a fact, it declares that it will find the fact exists or will direct the jury to do so even though evidence has not been established that the fact exists

Question 19

Presumptions of Law

Answer 19

Presumptions of law are inferences that have been expressly drawn by law from particular facts. Presumptions of law may be either conclusive or rebuttable. example: child under 10 yrs, is unable to be convicted CA1961, S21(1)

Question 20

Presumption of Fact

Answer 20

Presumptions of fact are those that the mind - naturally and logically draws from the given fact, example: one presumes person has guilty knowledge if they have possession of recently stolen goods

Question 21

Admissibility and the principles of evidence law

Answer 21

In deciding whether evidence is admissible, the court have reference to certain principals of evidence law, these include: Relevance, Reliability and unfairness

Question 22

Relevant evidence is defined

Answer 22

Evidence Act 2006 Section 7(3)
Evidence is relevant in a proceeding if it has a tendency to prove or disapprove anything that is of consequence to the determination of the proceeding

Question 23

Ways unfairness usually arises and result in exclusion of evidence

Answer 23

• Evidence may be excluded if
  it would result in some unfair prejudice in the proceeding
• Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair

Question 24

Section 8 General exclusion provision

Answer 24

The S8 test involves balancing the probative value of the evidence against the risk that it will:
- Have an unfairly prejudicial effect on the proceeding S8(1)(a)
- Needlessly prolong the proceeding S8(1)(b)

Question 25

Section 43

Answer 25

specific focus on the prejudicial effect on the defendant where the prosecution wish to offer propensity evidence about the defendant.

Question 26

Hearing in Chambers

Answer 26

Section 15
governs evidence given by a witness, to prove the facts necessary, for deciding whether some other evidence should be
admitted in a proceeding.
Such a hearing is commonly referred to as a ‘hearing in chambers particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing.
Facts determined at a hearing in chambers are sometimes referred to as ‘preliminary facts’, or ‘preliminary hearing’.

Question 27

Limited use of Evidence & use for multiple purposes

Answer 27

Once evidence is admitted, it can generally be used for all purpose
HART v R:
The statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all

Question 28

Exclusive rules of evidence

Answer 28

• Propensity
• veracity
• hearsay
• opinion
• identification
• improperly obtained evidence

Question 29

Veracity Rules: Section 37(3)

Answer 29

(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) a motive on the part of the person to be untruthful.

Question 30

Propensity (Definition)

Answer 30

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

Question 31

When propensity is admissible

Answer 31

The probative value of the evidence outweighs the prejudicial effect

Question 32

List the things a judge may consider when considering propensity evidence

Answer 32

(a) The frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred
(b) The connection in time between the acts, omissions, events, or circumstances of the evidence and those of the offence for which the defendant is being tried
(c) The extent of the similarity between the acts, omissions or events of the evidence and those of the offence for which the defendant is being tried
(d) The number of persons making allegations against the defendant that are similar to the offence for which the Defendant is being tried
(e) Whether the allegations described in paragraph (d) may be the result of collusion or suggestibility
(f) The extent to which the acts, omissions, events, or circumstances of the evidence and those of the offence for which the defendant is being tried are unusual

Question 33

Hearsay statement (Definition)

Answer 33

Section 4
a) was made by a person other that a witness, and
b) is offered in evidence at the proceeding to prove the truth of its contents

Question 34

Statement (Definition)

Answer 34

Section 4
A spoken or written assertion by a person of any matter, or
Non-verbal conduct of a person that is intended by that person as an assertion of any matter

Question 35

Admissibility of Hearsay statement

Answer 35

Section 18: Two Criteria
A hearsay statement is admissible in any proceeding if
a) the statement is reliable and
b) either:
i) the maker of the statement is unavailable as a witness or
ii) the judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 36

Lack of reliability rule against hearsay statement

Answer 36

• where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents
• the concern that juries cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement
• there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people (Chinese Whispers)

Question 37

Circumstances Defined

Answer 37

Section 16(1) Evidence Act 2006
Circumstances in relation to a statement made by person other than witness
(a) Nature
(b) Contents
(c circumstances that relate to
- making of the statement
- veracity of person
- accuracy of observation of the person

Question 38

Unavailable as a Witness Defined

Answer 38

Section 16(2) Evidence Act 2006
person is unavailable as witness if:
a) dead
b) outside NZ and it is not reasonably practicable for him/her to be a witness
c) unfit to be a witness because of age or physical or mental condition
d) cannot with reasonable diligence be identified or found
e) not compellable to give evidence

Question 39

The general exclusionary rule (S23 Opinion Rule): to prevent admission of unreliable, superfluous or misleading evidence

Answer 39

The justifications for the rule include that:
where a witness offers a bare opinion it holds little probative weight
there is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence.
A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence).

Question 40

Non-Expert opinion evidence (S24 General admissibility of opinions)

Answer 40

In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
- opinion must be the only way in which to effectively communicate the information to the finder of fact,
- witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 41

Admissibility of expert opinion evidence (S25)

Answer 41

• 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 42

Qualification as an expert

Answer 42

S4 of the act defines an expert as: a person who has specialized knowledge or skill based on training, study or experience The expert is required to demonstrate to the court that
- he or she has the requisite qualification to be deemed “expert” in the field in question;
- Evidence offered by an expert should be within his or her area of expertise

Question 43

R v HUTTON (Experts)

Answer 43

• an expert must state his or her qualifications when giving evidence
• the facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
  any literature or other material used or relied on to support opinions must be referred to by the expert
• the expert must not give opinion evidence outside his or her area of expertise
• if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
  an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
• an expert is not an advocate for any party.

Question 44

What are the 4 things an officer must check prior to serving a summons

Answer 44

• Whether they are allowed to give evidence
• Whether they are required to give evidence
• Whether they can refuse to give evidence, and
• What type of witness they will be

Question 45

All people are eligible and compellable

Answer 45

A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence.
A witness is compellable if they can be required to give evidence against their will for both prosecution and defence

Question 46

Compellability of Defendants and Associated Defendants

Answer 46

Section 73 (2)
- An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless:
- The associated defendant is being tried separately from the defendant, or
The proceeding against the associated defendant has been determined

Question 47

Privilege (Definition)

Answer 47

The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible

Question 48

Types of privilege

Answer 48

• communications with legal advisors
• communications with ministers of religion
• information obtained by medical practitioners and clinical psychologists
• Informer privilege

Question 49

Information obtained by medical practitioners and clinical psychologists (S59)

Answer 49

Apples to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct

Question 50

Independent evidence conforming or supporting a fact - Corroboration (S121)

Answer 50

It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to the offences of:
- Perjury and
- False Oaths and
- False statements or declarations and
- Treason

Question 51

Corroboration (Definition)

Answer 51

It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged

Question 52

Type of offences are considered by law to require corroboration

Answer 52

There are two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction they are perjury and related offences and treason
In these instances, corroboration is required as a matter of law

Question 53

Judges role in jury trial

Answer 53

• decide all questions concerning the admissibility of evidence
• explain and enforce the general principles of law applying to the point at issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
• determine whether there is any evidence that is fit to be submitted to the jury for its consideration

Question 54

Oaths and Affirmations

Answer 54

• Person 12 years or older must take oath or affirmation before giving evidence
• Person under 12 will be informed by judge about importance of telling the truth and not telling lies
• Then make a promise to tell the truth

Question 55

Evidence in chief

Answer 55

Purpose is to elicit testimony that supports the case of the party calling that witness

Question 56

Prohibition on leading questions

Answer 56

• General rule is that it may not be asked during evidence in chief or re-examination

Question 57

Leading question definition

Answer 57

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

Question 58

Prohibition on leading questions based on belief it will produce unreliable evidence for following reasons

Answer 58

• There is a natural tendency for people to agree with suggestions put to them by saying “yes”
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive
• result in the manipulation, construction of evidence through collusion, conscious or otherwise

Question 59

When leading questions maybe allowed under s89

Answer 59

• To direct the witness attention to the subject of identification evidence
• to jog a witness’s memory about some fact or event in issue
• in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence
• Where the witness has been declared hostile

Question 60

What are the conditions that are required when you seek leave to refresh your memory?

Answer 60

• leave of the judge must be obtained
• document must be shown to every other party in the proceeding
• S90(5) requires the document (consulted) to have been “made or adopted” by a witness “at a time when his or her memory was fresh”.
• Whether a document was made while the memory was fresh depends on the circumstances of the individual case

Question 61

Previous Consistent statements rule (35)

Answer 61

• Responds to a challenge that will be or has been made to the witness’s veracity or accuracy
• Forms an integral part of the events before the court, or
• Consists of the mere fact that a complaint has been made in a criminal case

Question 62

Questions that be asked of Hostile witness

Answer 62

• asking leading questions
• asking questions designed to probe the accuracy of memory and perception
• asking questions as to prior inconsistent statements, and
  other challenges to veracity, including evidence from other witnesses

Question 63

Hostile witness defined (s4)

Answer 63

• exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness
• gives evidence that is inconsistent with a statement made or to exhibit, an intention to be unhelpful to the party who called the witness
• refuses to answer questions or deliberately withholds evidence

Question 64

Cross-Examination

Answer 64

There are two purposes of cross-examination:
- elicit information supporting the case of the party conducting the cross-examination
- Challenge the accuracy of the testimony given in evidence-in-chief

Question 65

Unacceptable Questions

Answer 65

• the age or maturity of the witness
• any physical, intellectual, psychological, or psychiatric impairment of the witness
• the linguistic or cultural background or religious beliefs of the witness
• the nature of the proceeding

Question 66

Re-examination

Answer 66

the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge

Question 67

Evidence in rebuttal and recalling witnesses

Answer 67

• relates to a purely formal matter
• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen
• was not available or admissible before the prosecution’s case was closed, or
• is required to be admitted in the interests of justice for any other reason

Question 68

Judicial Directions and Warnings

Answer 68

• warning that evidence may be unreliable
• warnings about lies
• directions about children’s evidence
• warnings about identification evidence

Question 69

Warning that evidence may be unreliable

Answer 69

the Judge may warn the jury of the need for caution in deciding
(a) whether to accept the evidence
(b) the weight to be given to the evidence.

Question 70

In a criminal proceeding tried with a jury the Judge must consider whether to give a warning

Answer 70

(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:

Question 71

Warning about lies

Answer 71

• the jury needs to be satisfied that the defendant did lie before they use the evidence,
  people lie for various reasons,
• the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged