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DDP Modules > Evidence > Flashcards

Evidence Flashcards

1
Q

Evidence
(define)

A

“Evidence” 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.

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2
Q

Admissible evidence
(define)

A

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

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3
Q

Relevance
(define)

A

Evidence is relevant “if it has a tendancy to prove or disprove anything that is of consequence to the determination of a proceeding”
s7(3) Evidence Act 2006

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4
Q

Facts in issue
(define)

A

Facts in issue are those which

  • the prosecution must prove to establish the elements of the offence
  • the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof.
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5
Q

Exclusionary rules
(define)

A

These are rules that exclude evidence (usually because it is unreliable, unduly preducial or otherwise unfair to admit it)

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6
Q

Weight of Evidence
(define)

A

The “weight” of evidence is its value in relation to the facts in issue. The value will depend on a wide range of factors.
The “weight” is the degree of probative force that can be accorded to the evidence.

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7
Q

Weight of evidence
(example factors)

A
  • the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
  • the extent to which it is supported or contradicted by other evidence produced
  • the veracity of the witness
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8
Q

Offer evidence
(define)

A

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. - s96(1) E A ‘06
Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross-examination of a witness called by another party.

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9
Q

Give evidence
(define)

A

“Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence.

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10
Q

3 Ways of Giving Evidence

A
  • in the ordinary way
  • in an alternate way
  • in any other way
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11
Q

Giving evidence in the ordinary way
(define)

A

either orally in a courtroom in the presence of a judge (or judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge.

or in an affidavit filed in court, or by reading a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible, and it is the personal statement of the deponent or maker

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12
Q

Giving evidence in an alternative way
(define)

A

in the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing.

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13
Q

What does ‘The Courts (Remote Participation) Act 2010’ provide for?

A

It provides for audio and visual communication between parties (by audio-visual link), when some or all of the parties are not physically present at the place of the hearing for all or part of the proceeding.

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14
Q

Giving evidence in any other way
(define)

A

provided for by the Evidence Act 2006 or any other relevant enactment

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15
Q

Incriminate
(define)

A

To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.

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16
Q

Proceeding
(define)

A

This means a proceeding conducted by a court, and any application to a court connected with a proceeding.

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17
Q

Statement
(define)

A

(a) a spoken or written assertion by a person of any matter; or
(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter

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18
Q

Witness
(define)

A

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

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19
Q

Hearsay Statement
(define)

A

a statement that-
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents

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20
Q

Hearsay Statement definition means…

A

means that out-of-court statements made by a “witness” are not excluded by the hearsay rule because the maker is available to be cross-examined. Such statements may be excluded by a different rule. A statement offered for some purpose other than proving the truth of its contents, for example merely to show the statement was made or uttered, is not a hearsay statement.

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21
Q

Veracity
(define)

A

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

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22
Q

Propensity Evidence
(define)

A

Propensity Evidence means 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; but

does not include evidence of an act or omission that is one of the elements of the offence being tried

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23
Q

Direct Evidence
(define)

A

is 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)

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24
Q

Circumstantial Evidence
(define)

A

is 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
(e.g. the defendant was seen in the vacinity of the crime scene)

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25
Q

Enforcement Agency
(define)

A

means the New Zealand Police or any body or organization that has a statutory responsibility for the enforcement of an act

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26
Q

The Woolmington principle

A

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

presumption of innocence

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27
Q

The Woolmington Principle
Practical obligation on defence

A

If prosecution proves the facts where it can be concluded the defendant committed the act with the requisite mental element.
The defendant has to produce some story or evidence if they want to suggest the conclusion is wrong.

Not a burden of proof, just a practical obligation to try and introduce reasonable doubt.

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28
Q

Evidential Burden on defense

A

Where the defendant wishes to put up a defence to the charge, it is not just a “practical obligation” anymore but rather an “evidential burden” on the defendant.

Judge/jury can’t consider it unless it’s made a live issue by the defence.

It’s NOT a burden of proof, but once it is a ‘live issue’ the prosecution must destroy the defence.

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29
Q

Woolmington Principle exceptions

A

Where the legal burden is placed on defence.

e.g. Insanity defence, or absence of intent in Possess Off Weapon s202A(4)(b).

Or sometimes with admissiblity of evidence like s45 ID evidence.

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30
Q

Woolmington may not apply in….

A

Public welfare offences,
If prosecution proves actus reus, then defence must prove total absence of fault.
“strict liability” offences.

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31
Q

Standard of proof for prosecution

A

Beyond reasonable doubt

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32
Q

Standard of proof for defence

A

Balance of probabilities

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33
Q

Reasonable doubt in
R v Wanhalla

A

“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”

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34
Q

Direction to be given in R v Wanhalla

A

“The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.

It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

What then is a reasonable doubt? A reasonable doubt is 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 the evidence.

In summary, if after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty.

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35
Q

Balance of probabilities

A

it is more probable than not. If the probabilities are equal the burden is not discharged.

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36
Q

3 exceptions to Woolmington Principle

A
  • defence of insanity is claimed
  • specific statutory exceptions exist
  • the offence is a public welfare regulatory offence
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37
Q

The Purpose of evidence law

A

To help secure the just determination of proceedings

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38
Q

6 objectives to help secure the just determination of proceedings

A

s6 Evidence Act 2006
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting the rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.

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39
Q

The court in R v Barlen said…

A

… cannot override explicit exclusionary wording in the Act itself, even where such wording may be thought to run counter to ss6, 7, and 8.

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40
Q

What makes good evidemce
(Facts that prove the charge)

A

In each case, the actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged

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41
Q

What makes good evidence
(Facts in issue)

A

If the only facts open to proof or disproof were facts in issue themselves, many cases could not be proven.
However each piece of physical evidence or witness testimony can put a jigsaw together.
These are facts relevant to the facts in issue.

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42
Q

What makes good evidence
(Circumstantial evidence)

A

Circumstantial evidence is a fact from which a judge or jury can infer the existence of a fact in issue.
As more circumstances lead to the inference, the chain becomes stronger to the point where viewed as a whole is sufficient to prove guilt.

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43
Q

Establishing Facts, general rule

A

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

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44
Q

Establishing Facts, exceptions

A

No evidence need be given because:
- judicial notice is taken
- the facts are formally admitted

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45
Q

Establishing Facts
(Judicial Notice, uncontroverted facts)

A

s128 EA ‘06
Notice of uncontroverted facts
(1) A judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held they cannot reasonably be questioned.
(2) A judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.

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46
Q

Establishing Facts
(Judicial Notice, reliable published documents)

A

129 EA ‘06
Admissiom of reliable published documents
(1) A judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subject to which they respectively relate.
(2) Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 or Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1)

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47
Q

Establishing Facts
(Judicial Notice, examples)

A
  • Christmas is on December 25th, no need to prove it.
  • Can apply to local festivals etc
  • maps
  • scientific works
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48
Q

Establishing Facts
(Facts formally admitted)

A

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed.

49
Q

Establishing Facts
(Facts formally admitted)

A

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed.
… so as to dispense with proof of that fact.

50
Q

s9 Admission by agreement

A

(1) In any proceeding the Judge may–
(a) with written or oral agreement of all parties, admit evidence that is not otherwise admissible; and
(b) admit evidence offered in any form or way agreed by all parties.
(2) In a criminal proceeding, a defendant may admit any fact alleged against that defendant so as to dispense with proof of that fact.
(3) In a criminal proceeding, the prosecution may admit any fact so as to dispense with proof of that fact.

51
Q

Presumptions

A

Where no direct evidence is there, disputed facts are sometimes inferred from other facts that are proved or known.
These inferences are called presumptions.

52
Q

What two things may a presumption be of

A

May be of law or of fact

53
Q

Presumptions of law

A

Expressly drawn by law from particular facts.
May be either conclusive or rebuttable

54
Q

Presumptions of law
(conclusive example)

A

A child under 10 years is unable to be convicted.
Refers to the substance of the law rather than procedure contained in law.

55
Q

Presumptions of law
(rebuttable example)

A

That all defendant’s are innocent (until proven guilty - rebutted)

56
Q

Presumption of fact

A

Ones that the mind naturally and logically draws from given facts.
Because only logical inferences, they are always rebuttable.

57
Q

Presumption of fact
(example)

A

Presumption of guilty knowledge if they have possession or recently stolen goods.

58
Q

Determining admissibility

A

The judge decides on admissiblity.

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law.
- relevance
- reliability
- unfairness

59
Q

Relevance
Section 7

A

Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is-
(a) inadmissible under this Act or any other Act
(b) excluded under this Act or any other Act

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendancy to prove or disprove anything that is of consequence to the determination of the proceeding.

60
Q

Relevance summarised

A
  • irrelevant facts are always inadmissible
  • relevant facts may be admissible

To be received as evidence they need to be relevant and admissible.

61
Q

Reliability

A

Reliability is not general grounds for inadmissiblity, but may attract a Judicial warning.

Other exclusionary rules may apply, i.e. Hearsay or ID.

62
Q

Fairness
s8 Evidence Act 2006

A

In any proceeding a Judge must exclude evidence if it’s probative value is outweighed by the risk that it will
- (a) have an unfairly prejudicial effect on the proceeding; or
- (b) needlessly prolong the proceeding

The judge must take into account the right of the defendant to offer an effective defence

63
Q

Fairness
When can non prejudicial evidence be excluded.

A

When it has been obtained in circumstances that would make it unfair.

e.g. a “confession” obtained by unfair or improper methods. Would be excluded despite it being relevant and probative and reliable.

64
Q

Example of Section 8(1)(b) EA ‘06 needlessly prolonging proceedings

A

A defendant that wants to call 20 witnesses to give evidence of his veracity. s8(1)(b) could be used to limit it to 1 or 2 witnesses.

65
Q

The effect of s8(2) “must take into account the right of the defendant to offer an effective defence”

A

In a finely balanced case of probative VS prejudicial, it may make the difference for allowing defence evidence, or excluding prosecution evidence.

66
Q

Section 9, Admission by agreement
(exception)

A

Even if the parties agree to admit the evidence, the Judge retains control and can exclude it, or not allow the admission in the form agreed.

67
Q

Provisional admissibility

A

Section 14,
Judge may admit evidence based on further evidence to be offered later that will make it admissible. If it doesn’t come then the first evidence is inadmissible.

Section 15
Can have a “hearing in chamber” with a witness to determine the admissiblity of evidence.
Facts determined here are “preliminary facts” or “preliminary hearing”

68
Q

When is “preliminary hearing” evidence admissible in a main hearing

A

Only if the evidence given by the witness is inconsistent, and to show it is inconsistent.

69
Q

Use of evidence for multiple purposes

A

“the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

70
Q

Limited use of evidence
(3 sections)

A

s27 - controls the use of pre-trial statements of defendants

s31 - forbids the prosecution from relying on certain evidence offered by a defendant.

s32 - forbids fact-finder from using defendant’s pre-trial silence as evidence of guilt.

71
Q

Section 27 Evidence Act 2006
Defendant’s statement admissiblity

A

Defendant’s statement against himself - yes

Defendant’s statement against co-defendant - yes, only if relates to conspiracy or joint enterprise, and the furtherance thereof.

72
Q

Section 31 Evidence Act 2006
Evidence offered by other parties

A

If the evidence would be excluded if offered by the prosecution, that evidence cannot be relied on by prosecution even if another party offers it.

73
Q

Veracity Rule

A

Section 37(1) Evidence Act 2006
A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.

74
Q

Veracity Rule
(what factors to determine if it’s substantially helpful?)

A

The Judge may consider
- (a) lack of veracity on the part of the person when under 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) a motive in the part of the person to be untruthful

75
Q

Veracity Rule
(A party who calls a witness…)

A

(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.

76
Q

Evidence of a defendant’s veracity

A

Section 38 Evidence Act 2006

(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.

(2) The prosecution may only offer evidence about a defendant’s veracity if-
(a) the defendant has given oral evidence about his own veracity or challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and
(b) the Judge permits the prosecution to do so

77
Q

Evidence of a defendant’s veracity
(3 factors a judge may consider)

A

(a) the extent to which the defendant’s/prosecution witness’ veracity has been put in issue by the defendant’s evidence

(b) time elapsed since the conviction the Prosecution wish to refer to

(c) whether any evidence given by the defendant about his veracity was elicited by the prosecution.

78
Q

Propensity Evidence does not include…?

A
  • evidence of an act or ommission that is one of the elements of the offence for which the person is being tried.
  • evidence that is solely or mainly about veracity
79
Q

Propensity Evidence, general rule

A

A Party may offer propensity evidence about any person
(subject to restrictions)

80
Q

Propensity evidence about defendants

A
  • (1) A defendant in a criminal proceeding may offer propensity evidence about himself
  • (2) if a defendant offers propensity evidence about himself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about the defendant
  • (3) Section 43 does not apply to evidence under subsection (2)
81
Q

When can Propensity Evidence be offered by prosecution about the defendant

A

Only if the probative value outweighs the risk of unfair prejudicial effect

82
Q

What MAY a Judge consider when assessing the probative value of propensity evidence?

A

(a) the frequency of the acts, omissions, events, or circumstances which are the subject of the evidence

(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the AOEC of the offence

(c) the extent of the similarity of the acts etc

(d) the number of persons making allegations against the defendant which are the same/similar to the offence

(e) whether the allegations against the defendant in (d) suggest collusion or suggestibilty

(f) the extent to which the acts, omissions etc in both the evidence and the offence are unusual.

83
Q

What MUST a Judge consider in assessing the prejudicial effect of Propensity Evidence

A

(a) whether the evidence is likely it unfairly predispose the fact-finder against the defendant

(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions

84
Q

What was said in Mahomed v R about propensity evidence?

A

(paraphrased)
The rationale for admission rests largely on the concept of linkage and coincidence. The greater the linkage and coincidence the greater the probative value.

Because it is about having a tendancy to act in a particular way or have a particular state of mind, there must be some specificity to it.

85
Q

What MUST a Judge take into account when assessing the probative value of propensity evidence?

A

the nature of the issue in dispute

86
Q

Unintended assertions are not statements (and so are not hearsay statements)
example

A

An experienced seaman checked over a yacht before taking his family on it may imply the vessel was seaworthy.
Unless it was clear the man intended to to assert that the yacht was seaworthy, it will not be a statement and will not be hearsay.

87
Q

Section 17, Evidence Act 2006
Hearsay Rule

A

(1) A hearsay statement is not admissible except-
(a) as provided by this subpart or by the provisions of any other Act; and
(b) in cases where -
(i) this Act provides that this subpart does not apply; and
(ii) the hearsay statement is relevant and not otherwise inadmissible under this Act.

88
Q

Section 18, Evidence Act 2006
General admissiblity of hearsay

A

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) the Judge considers that undue expense or delay would be caused if the maker of the statement were to be required to be a witness

89
Q

Section 16(1), Evidence Act 2006
Circumstances of a statement by a person who is not a witness, include-

A

(a) the nature of the statement
(b) the contents of the statement
(c) the circumstances that relate to the making of the statement
(d) any circumstances that relate to the veracity of the person
(e) any circumstances that relate to the accuracy of the observation of the person

90
Q

Section 16(2) what is meant by “unavailable as a witness”

A

(a) is dead
(b) is outside NZ and it is not reasonably practicable for him or her to be a witness
(c) is 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

91
Q

Section 16(3) exception to unavailability

A

Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

92
Q

Section 19, Admissiblity of hearsay statements contained in business records.

A

Admissible if
(a) unavailable as a witness; or

(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as the person cannot reasonably be expected to recollect the matter dealt with in the info supplied. or

(c) the Judge consider that undue expense or delay would be caused if that person were required to be a witness

93
Q

Business record in 19(1)
(define)

A

Made:
- to comply with a duty or in the course of a business, and as a record or part of a record of that business
- from information supplied directly or indirectly by a person who had, or my reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied.

(includes Police notebooks/jobsheets)

94
Q

3 ways a hearsay statement can be admitted in a criminal proceeding.

A
  • the party proposing to offer the statement has complied with the requirements of 22(2), (3), & (4), or
  • every other party has waved those requirements or
  • the Judge dispenses with those requirements
95
Q

22(2) a party who proposes to offer a hearsay statement must provide every other party with a written notice stating…

A
  • the intention to offer a hearsay statement
  • name of statement maker
  • if an oral statement, the contents of the statement
  • if 18(1)(a) is relied on, the circumstances of the statement that provide reasonable assurance it is reliable
  • if 19, why the document is a business record
  • if 18(1)(b)(i) or 19(1)(a), why the person is unavailable
  • if 18(1)(b)(ii) or 19(1)(c), why undue expense or delay would be caused.
96
Q

Requirement 22(3) of hearsay notice

A

If the hearsay document was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.

97
Q

Requirement 22(4) of hearsay notice

A

Requirements of (2) & (3) must be complied with in sufficient time before a hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.

98
Q

When may a Judge dispense with the hearsay notice requirements?

A
  • Having regard to the nature and content of the statement, no party is substantially prejudiced by a failure to comply with them or
  • compliance was not reasonably practicable in the circumstances or
  • the interest of justice so requires
99
Q

Opinion rule

A

A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 24

100
Q

Why is opinion evidence inadmissible?

A
  • an opinion holds little probative weight
  • there is danger opinion evidence will “usurp” the function of the tribunal of fact.
  • a witnesses opinion may be based on inadmissible evidence
101
Q

24, General admissiblity of opinions

A

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

102
Q

Examples of general opinion that would be admissible

A
  • that they picked someone from a line-up and that that person is the offender
  • that a car was speeding. Could be based of sound or other perceptions.
103
Q

Admissiblity of expert opinion evidence.
s25(1)

A

An opinion by an expert that is part of expert Evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

104
Q

Expert
(define)

A

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

105
Q

What does substantial help mean in Expert Evidence s25

A

it necessitates consideration of an amalgum of relevance, reliability, and probative value.

106
Q

(expert) Evidence based on proven facts.

A

The expert must state the facts on which their opinion is based otherwise could be based on misinformation, irrelevant facts, or omit facts that are relevant.

Can be judicially noticed facts, or assumed facts and all that that entails.

107
Q

Expert evidence about sanity
s25(4)

A

(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based and

(b) neither the hearsay rule nor the pervious consistent statement rule applies to evidence of the statement made by the person.

108
Q

The conduct of experts as per R v HUTTON

A
  • 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 must be stated explicitly
  • any literature or other material 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
  • an expert is not an advocate for any party.
109
Q

Things to verify before a summons is served on a person

A
  • whether they are allowed to give evidence
  • whether they are required to give evidence
  • whether they can refuse to give evidence
  • what type of witness they will be
110
Q

Eligibility and compellability generally
(s71 Evidence Act 2006)

A

(1) In a civil criminal proceeding -
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence

(2) subject to s72 to 75

111
Q

Who are not eligible to give evidence?

A
  • the Judge of the proceeding
  • a juror or counsel, except with permission of the Judge
112
Q

Compellability of defendants and associated defendant’s.
s73 Evidence Act 2006

A

(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the 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 associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined

113
Q

When has a proceeding been “determined”, so an associated defendant is now compellable?

A
  • the proceeding has been stayed or in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or
  • the associated defendant has been acquitted of the offence; or
  • the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence
114
Q

Define associated defendant in relation to compellability

A

A person whom a prosecution has been instituted for-
- an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted
- an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted

115
Q

Who is not compellable to give evidence?

A

s74
- the Sovereign
- the Governor-General
- a Sovereign or Head of State of a foreign country
- a Judge, in respect of the Judge’s conduct as a Judge

s75
- a bank officer to produce bank records (that would be admissible as business records)

116
Q

What is “a privilege” in relation to giving evidence?

A

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

117
Q

Types of privilege

A
  • communication with legal advisors
  • solicitors’ trust accounts
  • preparatory materials for proceedings
  • settlement negotiations or mediation, or plea discussions
  • communications with ministers of religion
  • information obtained by medical practitioners and clinical psychologists
118
Q

Other privilege

A
  • privilege against self-incrimination
  • informer privilege
119
Q

Effect

A

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