Evidence

Question 1

Evidence
(define)

Answer 1

“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.

Question 2

Admissible evidence
(define)

Answer 2

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

Question 3

Relevance
(define)

Answer 3

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

Question 4

Facts in issue
(define)

Answer 4

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.

Question 5

Exclusionary rules
(define)

Answer 5

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

Question 6

Weight of Evidence
(define)

Answer 6

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.

Question 7

Weight of evidence
(example factors)

Answer 7

• 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

Question 8

Offer evidence
(define)

Answer 8

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.

Question 9

Give evidence
(define)

Answer 9

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

Question 10

3 Ways of Giving Evidence

Answer 10

• in the ordinary way
• in an alternate way
• in any other way

Question 11

Giving evidence in the ordinary way
(define)

Answer 11

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

Question 12

Giving evidence in an alternative way
(define)

Answer 12

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

Question 13

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

Answer 13

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.

Question 14

Giving evidence in any other way
(define)

Answer 14

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

Question 15

Incriminate
(define)

Answer 15

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.

Question 16

Proceeding
(define)

Answer 16

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

Question 17

Statement
(define)

Answer 17

(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

Question 18

Witness
(define)

Answer 18

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

Question 19

Hearsay Statement
(define)

Answer 19

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

Question 20

Hearsay Statement definition means…

Answer 20

…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.

Question 21

Veracity
(define)

Answer 21

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

Question 22

Propensity Evidence
(define)

Answer 22

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

Question 23

Direct Evidence
(define)

Answer 23

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)

Question 24

Circumstantial Evidence
(define)

Answer 24

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)

Question 25

Enforcement Agency
(define)

Answer 25

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

Question 26

The Woolmington principle

Answer 26

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

presumption of innocence

Question 27

The Woolmington Principle
Practical obligation on defence

Answer 27

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.

Question 28

Evidential Burden on defense

Answer 28

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.

Question 29

Woolmington Principle exceptions

Answer 29

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.

Question 30

Woolmington may not apply in….

Answer 30

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

Question 31

Standard of proof for prosecution

Answer 31

Beyond reasonable doubt

Question 32

Standard of proof for defence

Answer 32

Balance of probabilities

Question 33

Reasonable doubt in
R v Wanhalla

Answer 33

“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 34

Direction to be given in R v Wanhalla

Answer 34

“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.

Question 35

Balance of probabilities

Answer 35

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

Question 36

3 exceptions to Woolmington Principle

Answer 36

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

Question 37

The Purpose of evidence law

Answer 37

To help secure the just determination of proceedings

Question 38

6 objectives to help secure the just determination of proceedings

Answer 38

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.

Question 39

The court in R v Barlen said…

Answer 39

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

Question 40

What makes good evidemce
(Facts that prove the charge)

Answer 40

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

Question 41

What makes good evidence
(Facts relevant to facts in issue)

Answer 41

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.

Question 42

What makes good evidence
(Circumstantial evidence)

Answer 42

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.

Question 43

Establishing Facts, general rule

Answer 43

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

Question 44

Establishing Facts, exceptions

Answer 44

No evidence need be given because:

• judicial notice is taken
• the facts are formally admitted

Question 45

Establishing Facts
(Judicial Notice, uncontroverted facts)

Answer 45

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.

Question 46

Establishing Facts
(Judicial Notice, reliable published documents)

Answer 46

129 EA ‘06
Admission 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 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1)

Question 47

Established Facts
(Judicial Notice, examples)

Answer 47

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

Question 48

Establishing Facts
(Facts formally admitted)

Answer 48

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.

Question 49

Establishing Facts
(Facts formally admitted)

Answer 49

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.

Question 50

s9 Admission by agreement

Answer 50

(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.

Question 51

What are Presumptions

Answer 51

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

Question 52

What two things may a presumption be of

Answer 52

May be of law or of fact

Question 53

Presumptions of law

Answer 53

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

Question 54

Presumptions of law
(conclusive example)

Answer 54

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

Question 55

Presumptions of law
(rebuttable example)

Answer 55

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

Question 56

What are “Presumptions of fact”

Answer 56

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

Question 57

Presumption of fact
(example)

Answer 57

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

Question 58

Determining admissibility

Answer 58

The judge decides on admissiblity.

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

• relevance
• reliability
• unfairness

Question 59

Relevance
Section 7

Answer 59

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.

Question 60

Relevance summarised

Answer 60

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

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

Question 61

Reliability

Answer 61

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

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

Question 62

Fairness
s8 Evidence Act 2006

Answer 62

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

Question 63

Fairness
(When can non prejudicial evidence be excluded?)

Answer 63

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.

Question 64

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

Answer 64

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.

Question 65

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

Answer 65

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

Question 66

Section 9, Admission by agreement
(exception)

Answer 66

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.

Question 67

Provisional admissibility

Answer 67

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”

Question 68

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

Answer 68

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

Question 69

Use of evidence for multiple purposes

Answer 69

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

Question 70

Limited use of evidence
(3 sections)

Answer 70

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.

Question 71

Section 27 Evidence Act 2006
Defendant’s statement admissiblity

Answer 71

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.

Question 72

Section 31 Evidence Act 2006
Evidence offered by other parties

Answer 72

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.

Question 73

Veracity Rule

Answer 73

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.

Question 74

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

Answer 74

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

Question 75

Veracity Rule
(A party who calls a witness…)

Answer 75

(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.

Question 76

(who may offer)
Evidence of a defendant’s veracity

Answer 76

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

Question 77

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

Answer 77

(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.

Question 78

Propensity Evidence does not include…?

Answer 78

• 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

Question 79

Propensity Evidence, general rule

Answer 79

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

Question 80

Propensity evidence about defendants

Answer 80

• (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)

Question 81

When can Propensity Evidence be offered by prosecution about the defendant

Answer 81

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

Question 82

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

Answer 82

(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.

Question 83

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

Answer 83

(a) whether the evidence is likely to 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

Question 84

What was said in Mahomed v R about propensity evidence?

Answer 84

(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.

Question 85

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

Answer 85

the nature of the issue in dispute

Question 86

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

Answer 86

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.

Question 87

Section 17, Evidence Act 2006
Hearsay Rule

Answer 87

(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.

Question 88

Section 18, Evidence Act 2006
General admissiblity of hearsay

Answer 88

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

Question 89

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

Answer 89

(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

Question 90

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

Answer 90

(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

Question 91

Section 16(3) exception to unavailability

Answer 91

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.

Question 92

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

Answer 92

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

Question 93

Business record in 19(1)
(define)

Answer 93

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 may 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)

Question 94

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

Answer 94

• 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

Question 95

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

Answer 95

• 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.

Question 96

Requirement 22(3) of hearsay notice

Answer 96

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.

Question 97

Requirement 22(4) of hearsay notice

Answer 97

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.

Question 98

When may a Judge dispense with the hearsay notice requirements?

Answer 98

• 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

Question 99

Opinion rule

Answer 99

A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25

Question 100

Why is opinion evidence inadmissible?

Answer 100

• 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

Question 101

24, General admissiblity of opinions

Answer 101

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.

Question 102

Examples of general opinion that would be admissible

Answer 102

• 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.

Question 103

Admissiblity of expert opinion evidence.
s25(1)

Answer 103

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.

Question 104

Expert
(define)

Answer 104

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

Question 105

What does substantial help mean in Expert Evidence s25

Answer 105

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

Question 106

(expert) Evidence based on proven facts.

Answer 106

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.

Question 107

Expert evidence about sanity
s25(4)

Answer 107

(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.

Question 108

The conduct of experts as per R v HUTTON

Answer 108

• 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.

Question 109

Things to verify before a summons is served on a person

Answer 109

• 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

Question 110

Eligibility and compellability generally
(s71 Evidence Act 2006)

Answer 110

(1) In a civil or 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

Question 111

Who are not eligible to give evidence?

Answer 111

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

Question 112

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

Answer 112

(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

Question 113

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

Answer 113

• 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

Question 114

Define associated defendant in relation to compellability

Answer 114

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

Question 115

Who is not compellable to give evidence?

Answer 115

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)

Question 116

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

Answer 116

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

Question 117

Types of privilege

Answer 117

• 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

Question 118

Other privilege

Answer 118

• privilege against self-incrimination
• informer privilege

Question 119

Effect and protection of privileges
(paraphrased)

Answer 119

s53
(1) If ss54 - 59, the person has the right to refuse to disclose
- the communication; and
- the information, including any information contained in the communication; and
- any opinion formed by a person that is based on the communication or information

(2) If s60 or 64, right to refuse to disclose the information

(3) A person who has privilege conferred by s54 - 59 and 64 may require that the communication, information, opinion, or document not be disclosed by
- the person it was made to; or
- a person who has come into possession of it with authority of the person, in confidence and for purposes related to the circumstances that gave rise to the privilege

(4) if not a person in (3) a Judge may make an order not to disclose, either on application or on own initiative.

Question 120

Legal professional privilege
(case law notes)

Answer 120

R v Derby Magistrates’ Court
Legal professional privilege is “more than an ordinary rule of evidence… it is a fundamental condition on which the administration of justice as a whole rests”

B v Auckland District Law Society
legal privilege is not to be balanced against competing public interests; a lawyer must be able to give a client an absolute and unqualified assurance that what they reveal will not be disclosed without their consent. In New Zealand, the privilege therefore takes primacy over all other public interests.

Question 121

Communication with legal advisors
(5 points)

Answer 121

1. Must be intended to be confidential
2. Must be made for the purpose of obtaining or giving legal services (includes by “authorised representatives”)
3. The privilege is vested in the person seeking or receiving legal services. If right is waved a Judge may still make an order not to disclose.
4. The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence
5. Provided that it was intended to be confidential, if overheard it does not abtogate privilege, even if no precautions were taken.

Question 122

Preparatory materials for proceedings.
(who has privilege)

Answer 122

A person if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or an apprehended proceeding.

Question 123

Preparatory materials for proceedings.
(what does the privilege apply to?)

Answer 123

A communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.

Question 124

Preparatory materials for proceedings
(what can privilege be in respect of?)

Answer 124

• A communication between the party and any other person
• a communication between the party’s legal advisor and any other person
• information compiled or prepared by the party
• information compiled or prepared by the party’s legal advisor
• information compiled or prepared at the request of the party/legal advisor by any other person.

Question 125

What does medical privilege apply to?

Answer 125

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

does not include a person who is ordered to be examined

Question 126

When does s60 privilege against self incrimination apply?

Answer 126

• in the course of a proceeding by a person exercising a statutory power or duty, or
• by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence

Question 127

Informer privilege

Answer 127

An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

Question 128

Informer
(define)

Answer 128

has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which a person has a reasonable expectation that his or her identity will not be disclosed; and
is not called as a witness by the prosecution to give evidence relating to that information

Question 129

What offences require Corroberation

Answer 129

• perjury
• false oaths
• false statement or declarations
• treason

Question 130

Judges role in TBJ

Answer 130

• decide all questions concerning the admissiblity 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

Question 131

At what age must a witness take an oath or affirmation before giving evidence

Answer 131

12 years of age or older

Question 132

Instead of an oath, what must happen to a witness under 12?

Answer 132

Must:

• be informed by the judge of the importance of telling the truth and not telling lies, and
• after being given that information, make a promise to tell the truth, before giving evidence.

Question 133

Sequence of Jury trials

Answer 133

1. Jury empanelled and foreperson selected. Judge gives opening instructions. (open mind, standard of proof etc)
2. The Crown’s opening address. (explanation of charges, reiterate burden of proof, summarise case & evidence)
3. Crown case is presented. (Witnesses are called, Evidence in cheif, cross-examination, re-examination, judges questions)
4. Defence opening address
5. Defence case is presented, (witnesses called, evidence in cheif, cross-examination, re-examination, judges questions)
6. Crown’s closing address (no new info may be added, or new issues raised)
7. Defence’s closing address (as above)
8. Judge sums up to the jury, jury retires to consider verdict.

Question 134

Restrictions on comment on defendant’s right of silence at trial

Answer 134

In a criminal proceeding, no person other than the defendant, defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

Question 135

Purpose of evidence in cheif

Answer 135

to elicit testimony that supports the case of the party calling that witness.

Question 136

Leading questions
(define)

Answer 136

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

Question 137

Why do leading questions produce unreliable evidence?

Answer 137

• There is a natural tendancy for people to say “yes” to suggestions put to them.
• counsel asking leading questions from their own witness can more easily elicit the answers they want, reducing spontaneity and genuineness.
• Danger that leading questions will result in manipulation of evidence through collusion, conscious or otherwise, between counsel and witnesses

Question 138

When are leading questions allowed to be put to a witness in examination in cheif/re-examination

Answer 138

(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question

Question 139

What leading questions is it likely may be allowed?

Answer 139

• to direct the witness’s attention to subject identification (was that the car you saw?)
• about surrounding circumstamces in order to jog the witness’s memory about some facts in issue
• to assist counsel in eliciting evidence from very young people, English not first language, limited intelligence. This is not necessarily the best way.
• a witness is declared hostile

Question 140

In order for a witness to consult a document when giving evidence

Answer 140

• the leave of the Judge must be obtained
• the document must be shown to every other party in the proceeding
• the document must have been “made or adopted at a time when his or her memory was fresh”

Question 141

Previous consistent statement rule

Answer 141

A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement

Question 142

When is a previous consistent statement admissible?

Answer 142

(a) it responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness

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

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

Question 143

Hostile Witness
(define)

Answer 143

• exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
• gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witmess; or
• refuses to answer questions or deliberately withholds evidence.

Question 144

If a witness is declared hostile, what sort of questions can they be asked?

Answer 144

• leading questions
• questions designed to probe the accuracy of memory and perception
• questions as to prior inconsistent statements
• other challenges to veracity, including evidence from other witnesses (as long as it is “substantially helpful” in assessing veracity)

Question 145

What are the two main purposes of cross-examination?

Answer 145

• to elicit information supporting the case of the party conducting the cross-examination
• to challenge the accuracy of the testimony given in evidence-in-chief
  (of example, by casting doubt on veracity, or eliciting contradictory testimony)

Question 146

What does s95(1) say about Cross-examination duties.

Answer 146

In any proceeding, a party MUST cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

Question 147

If a party fails to comply with cross examination duties (s95(1)), what may a Judge do?

Answer 147

• grant permission for the witness to be recalled and questioned about contradictory evidence; or
• admit the contradictory evidence on the basis that the weight given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
• exclude the contradictory evidence; or
• make any other order that the Judge considers just

Question 148

What are unacceptable questions?
(5)

Answer 148

Questions that a Judge considers

• improper,
• unfair,
• misleading,
• needlessly repetitive, or
• expressed in language that is too complicated for the witness to understand

Question 149

What may a Judge have regard to for ‘unacceptable questions’?

Answer 149

• 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
• if hypothetical, whether the hypothesis will be proved by other evidence

Question 150

Cross examination on previous statements of witnesses
(do you need to show the previous statement?)

Answer 150

A party who cross-examines a witness may question a witness about a previous statement without showing it or disclosing it’s contents at the time, if the time, place, and other circumstances of making the statement are adequately identified to the witness.

Question 151

Cross examination on previous statements of witnesses
(what if the witness does not admit making the statement?)

Answer 151

If you want to prove they made the statement-

• must show the statement to the witness if in writing, or disclose its content ls to the witness if not in writing
• witness must be given the opportunity to deny making the statement or to explain any inconsistency between statement and testimony

Question 152

What may be covered in re-examination?

Answer 152

Clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with permission of the Judge.

Question 153

If the Judge allows additional evidence in re-examination what must happen?

Answer 153

Other parties MUST be allowed to cross-examine on the additional evidence, the Judge may allow re-examination on matters from that cross-examination

Question 154

Evidence in rebuttal
(When may the court grant leave for further evidence from the prosecution)

Answer 154

If the evidence:

• 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 forseen. (most common)
• was not available or admissible before the prosecution’s case was closed
• is required to be admitted in the interests of justice

Question 155

When is evidence in rebuttal permissible until?

Answer 155

the time when the jury retires
Or in a JAT, until judgement is delivered.

Question 156

When may a witness be recalled?

Answer 156

By a Judge if they consider it is in the interests of justice to do so

Question 157

What are the 6 judicial warnings/directions?

Answer 157

• judicial warning that evidence may be unreliable
• judicial directions about certain ways of giving evidence
• judicial warning about lies
• judicial direction about children’s evidence
• judicial warning about ID evidence
• delayed complaints or failure to complain in sexual cases

Question 158

What is the unreliability warning

Answer 158

Judge may warn the jury of the need for caution in deciding-

• whether to accept the evidence
• the weight to be given to the evidence

Question 159

What must a Judge consider when deciding to give an unreliability warning?

Answer 159

Whether the evidence given is

• hearsay evidence
• evidence of a statement by the defendant, if that is the only evidence against him
• evidence of a witness who may have a motive to give false evidence that is prejudicial
• evidence of a statement by the defendant to another prisoner
• evidence about the conduct of the defendant if it is alleged to have occurred over 10 years prior.

Question 160

If a party request a Judicial warning about unreliability, when does a Judge need not comply?

Answer 160

• if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
• if the Judge is of the opinion that there is any other good reason not to comply with the request

Question 161

What is the judicial direction about how evidence may be given?

Answer 161

that no adverse inferences should be drawn against the defendant because:

• witness offered evidence in an alternative way
• defendant was not allowed to personally cross-examine a witness
• witness offers evidence in accordance with an anonymity order

Question 162

When must a Judicial warning be given about lies?

Answer 162

• the Judge is of the opinion that the jury may place undue weight on the evidence of a defendant’s lie; or
• the defendant request the warning

Question 163

What must a Judicial warning about lies include?

Answer 163

That-

• the jury must be satisfied before using the evidence that the defendant did lie; and
• people lie for various reasons; and
• the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried

Question 164

What does the direction about evidence given by children prohibit?

Answer 164

The judge must not -

• give a warning about lack of corroberation if it would not be given about an adult
  (unless expert evidence is given for below)
• comment that there is a need to scrutinize the evidence of children generally with special care
• suggest that children generally have tendancies to invent or distort

Question 165

Practical matters for “not guilty” hearings.
Witnesses

Answer 165

O/C should

• advise witness of time, date, place of trial, and any exhibits to be produced
• Check if they have given evidence before. If not advse them how to give evidence (speak slowly and clearly, tell truth, and say “I don’t know” instead of guessing)
• advise witness they can read their statement prior, to refresh memory. But not read other docs
• ensure they are handy if excluded from courtroom
• check the jury list to make sure none of the jurors are known to the witness
• warn the witness not to mix or speak with jurors
• advise of witness expenses

Question 166

Practical matters for “not guilty” hearings.
O/C case general

Answer 166

• Look, stand, and speak correctly
• identify the defendant (?)
• locate your witnesses and help them as required
• do not mix or gossip with jurors or members of the defence

Question 167

Practical matters for “not guilty” hearings.
O/C case, giving evidence

Answer 167

• take care you actually answer the question being asked
• say you don’t know instead of guess
• Do not be flippant
• Address judge as “Your Honour” or “Sir/Ma’am”
• Address the prosecutor and defence as “Sir/Ma’am”
• Advise the Judge of any mistakes you have made as soon as possible, or advise the prosecutor if you’re finished giving evidence

Question 168

Practical matters for “not guilty” hearings.
referring to your notebook

Answer 168

• ask the court’s permission
• introduce the properly (eg “I interviewed the defendant and wrote the answers in my notebook at the time”)
• remember that the defence and jury are entitled to view your notes, so seal off other entries.
• remember you are only allowed to refresh your memory, not read the whole entry unless you have permission to read the notes of the interview

Question 169

Practical matters for “not guilty” hearings.
introducing a notebook statement to the court

Answer 169

Begin by giving evidence of prior discussions and oral admission, in case the statement is rejected.

Example:
At___I spoke with the defendant, following a general discussion on___(weather etc), I then asked him___, he replied___. I then asked him if he would like to make a statement. He agreed and I now produce and read this to the court”

Question 170

Practical matters for “not guilty” hearings.
general guidance

Answer 170

Remember:
at all times be truthful, factual, unbiased, calm, and professional.