EVIDENCE

Question 1

Define evidence

Answer 1

Is the term for the whole body of material which a court or tribunal may take into account in reaching their decision.
May be oral, written or visual form.

Question 2

What makes evidence admissible?

Answer 2

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

Question 3

What is circumstantial evidence?

Answer 3

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. defendant seen in vicinity of scene of crime.

Question 4

What is direct evidence?

Answer 4

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

Question 5

Define statement

Answer 5

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

Question 6

What is relevance?

Answer 6

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

Question 7

What are facts in issue?

Answer 7

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

Question 8

What is the weight of evidence?

Answer 8

The weight of evidence is its value in relation to the facts in issue but
The weight is the degree of probative force that can be accorded to the evidence.
The value will depend on a wide range of factors such as:
- 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
- the veracity of a witness

Question 9

What is an enforcement agency?

Answer 9

Any body or organisation that has statutory responsibility for the enforcement of an enactment including customs, ministry of fisheries, inland revenue department and police.

Question 10

How do you give evidence in the ordinary way?

Answer 10

• orally in a courtroom in the presence of a judge, jury, parties to the proceeding, counsel and members of public allowed by the judge
• an affidavit filed in court
• 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 11

How do you give evidence in an alternative way?

Answer 11

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

Question 12

How do you give evidence in any other way?

Answer 12

Provided for by the Evidence Act 2006 or any other relevant enactment.

Question 13

What is a hostile witness?

Answer 13

A witness that
- exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge
- gives evidence 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 them
- refuses to answer questions or deliberately withholds evidence

Question 14

Define incriminate

Answer 14

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 15

Define veracity

Answer 15

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

Question 16

Define propensity

Answer 16

A propensity is a tendency to act or behave in a certain way.
E.g. a propensity for violence

Question 17

What is established in the Woolmington principle?

Answer 17

The Woolmington principle 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 18

What are some exceptions to the Woolmington principle?

Answer 18

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

Question 19

What are two standards of proof for prosecution and defence?

Answer 19

Prosecution is beyond reasonable doubt
Defence is on a balance of probabilities

Question 20

Define beyond reasonable doubt

Answer 20

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

Question 21

Define balance of probabilities

Answer 21

If the evidence shows that it is more probable than not, then the burden is discharged. If the probabilities are equal, then the burden is not discharged.

Question 22

R v Wanhalla (presumption of innocence)

Answer 22

“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.”

Question 23

How may evidence be given in a proceeding?

Answer 23

• in the ordinary way (orally in court)
• in an alternative way (video link or video record)
• in any other way provided for by the evidence act or any other enactment

Question 24

What are the six objective set out in s6 of the Evidence Act?

Answer 24

Helps secure the just determination of proceedings by:
- providing: for facts to be established by the application of logical rules
- providing: rules for evidence that recognise the importance of the rights affirmed by the NZBORA
- promoting: fairness to parties and witnesses
- protecting: rights of confidentiality and other important public interests
- avoiding: unjustifiable expense and delay
- enhancing: access to the law of evidence

Question 25

What are exception to the general rule when no evidence needs to be given of facts?

Answer 25

- judicial notice is taken - the facts are formally admitted

Question 26

Define judicial notice

Answer 26

When a court takes judicial notice of a fact, it declares that it will find that the fact exists even though evidence has not been established that the fact exists. s128: concerned only with facts that are facts in issue or relevant to a fact in issues s129: codifies common law exception to the hearsay rules that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature.

Question 27

What are presumptions of law?

Answer 27

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

Question 28

What are presumptions of fact?

Answer 28

Are those that the kind naturally and logically draws from the given facts. Presumption of fact are simply logical inferences and so are always rebuttable.

Question 29

Deciding whether evidence is admissible, courts refer certain principals of evidence law. What are they?

Answer 29

- relevance - reliability - unfairness

Question 30

When is relevant evidence inadmissible? (S7 Rule)

Answer 30

All relevant evidence is admissible in a proceeding except evidence that is: - inadmissible under this act or any other act - excluded under this act or any other act

Question 31

Name two situations where evidence would be excluded due to unfairness?

Answer 31

- it would result in unfair prejudice in the proceeding - evidence has been obtained in circumstances that would make its admission against the defendant unfair (deft statement has been obtained by unfair or improper methods)

Question 32

What does S8 (General Exclusion Provision) state in relation to unfairness?

Answer 32

In any proceeding the judge must exclude evidence if it’s probative value is outweighed by the risk that the evidence will - have an unfairly prejudicial effect on the proceeding - needlessly prolong the proceeding

Question 33

If evidence is admitted, what purpose la can it be used for? (Specific restrictions aside)

Answer 33

Once evidence is admitted, it can generally be used for all purposes. R v Hart: “the statue proceeds on n the basis that, generally speaking, evidence is either admissible for all purposes or not admissible at all”

Question 34

What do the exclusive rules of evidence deal with?

Answer 34

- hearsay - identification - improperly obtained evidence - opinion - propensity - veracity

Question 35

What are the two classes of character evidence?

Answer 35

- veracity: a disposition to refrain from lying - propensity: a tendency to act in a particular way

Question 36

In deciding whether or not evidence about a persons veracity is substantially helpful, the Judge may consider:

Answer 36

- lack of veracity on the part of the person when under a legal obligation to tell the truth - that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity - any previous inconsistent statements made by the person - bias on the part of the person - a motive on the part of the person to be untruthful

Question 37

What is the propensity rule of evidence?

Answer 37

Means evidence that tends to show a persons 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 that the person is being tried - or the cause of action in the proceeding

Question 38

What is a hearsay statement?

Answer 38

A statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents.

Question 39

What is the hearsay rule?

Answer 39

A hearsay statement is not admissible except as provided by this sub part of by the provisions of any other act or in cases where - this act provides that this subpart does not apply - the hearsay statement is relevant and not otherwise inadmissible under this act

Question 40

What is the general admissibility of hearsay?

Answer 40

Admissible in a proceeding if: - circumstances relating to the statement provide reasonable assurance that the statement is reliable - either the maker of the statement is unavailable as a witness or - judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 41

What are the rationale rules against hearsay evidence?

Answer 41

Rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence. The reason the rules exist is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested. - where the maker of statement is not called as a witness so no opportunity for cross examination - rules address concern that juries cannot evaluate evidence properly without seeing the demeanour of the person - danger witnesses will make mistakes about meaning or content of statements made by other people

Question 42

Circumstances in relation to a statement by a person who is not a witness (s16(1)) include:

Answer 42

The N: the nature of the statement The C: the contents of the statement The C: the circumstances that relate to making of the statement Any C: any circumstances that relate to the veracity of the person Any C: any circumstances that relate to the accuracy of the observation of the person

Question 43

What are examples of a witness being unavailable?

Answer 43

- dead - outside New Zealand and not reasonably practicable for him or her to be a witness - is unfit to be a witness because of age or physical or mental condition - cannot with reasonable diligence be identified or found - is not compelled to give evidence

Question 44

What is the general exclusionary rule for opinions?

Answer 44

A statement of opinion is not admissible in a proceeding except as provided by sections 24 or 25. The rationale of exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence.

Question 45

What are the justifications of the general exclusionary rule?

Answer 45

- where a witness offers 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 evidence of opinion may be based on other evidence which if stated expressly would be inadmissible. i.e. where an opinion is based largely on propensity evidence

Question 46

What is the general admissibility rule for non-expert opinion evidence (s24)?

Answer 46

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 47

In order to be admissible under s24, the statement of opinion must fulfil basic criteria:

Answer 47

- opinion must be the only way in which to effectively communicate the information to the finder of fact - the witness must be staying an opinion from something personally perceived

Question 48

What qualifies a person as an expert?

Answer 48

An expert is defined as a person who has specialised knowledge or skill based on training, study or experience.

Question 49

If the evidence is opinion evidence, in order to comply with s25, the opinion must:

Answer 49

- 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 50

S25(1) provides that expert opinion evidence will be admissible if the fact-finder is likely to obtain substantial help from the opinion in:

Answer 50

- understanding other evidence - or in ascertaining any fact in the proceeding

Question 51

An associated defendant is not compellable label to give evidence for or against a defendant unless two situations apply. State these two situations:

Answer 51

TRIED: the associated defendant is being tried separately to the defendant DETERMINED: the proceeding against the associated defendant has been determined

Question 52

What are types of privilege?

Answer 52

COMMUNICATIONS with legal advisors SOLICITORS solicitors trust accounts PREPATORY materials for proceedings SETTLEMENT negotiations or mediation COMMUNICATIONS with ministers of religion INFORMATION obtained by medical practitioners and clinical psychologists PRIVILEGE against self incrimination INFORMER privilege

Question 53

What is the meaning of self incrimination under s4 of the EA06?

Answer 53

Is the provision by a person of information that could reasonably lead to or increase the likelihood of the prosecution of that person for a criminal offence

Question 54

What must a person provide to claim privilege against self incrimination in a court proceeding?

Answer 54

A person who claims privilege against self incrimination in a court proceeding must offer sufficient evidence to enable the judge to assess whether self incrimination is reasonably likely if the person provides the required information

Question 55

When is corroboration required as a matter of law in some circumstances?

Answer 55

Two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction l. In these instances, corroboration is required as a matter of law. The offences are: - perjury - false oaths - false statements and declarations - treason

Question 56

What is the judges role in a trial by jury?

Answer 56

- DECIDE on the questions concerning the admissibility of evidence - EXPLAIN and engage the general principles of law applying to the point at issue - INSTRUCT the jury on the rules of law by which evidence is to be weighed once it has been submitted

Question 57

What must a judge NOT DO in relation to children giving evidence under s125?

Answer 57

Unless expert evidence is given in that proceeding supporting the giving of the following direction or the making of the following comment: - give any warning to the jury about the absence of corroboration of the evidence of the complaining of the judge would not have given that kind of warning had the complainant been an adult - give any direction or comment that there is a need to scrutinise children’s evidence with special care or that children generally have tendencies to invent or distort

Question 58

Define a leading question

Answer 58

Is one that directly or indirectly suggest a particular answer to the question

Question 59

The prohibition on leading questions is?

Answer 59

General rule is that leading questions may not be asked during evidence in chief or re-examination. Based on the belief it will produce unreliable evidence for the following reasons: - people tend to agree with a suggestion put to them - counsel can elicit answers they wish to receive of their own witnesses - a danger that leading questions will result in the manipulation or construction of evidence through collusion, conscious or otherwise

Question 60

When are leading questions permitted?

Answer 60

- to direct witnesses attention to the subject or identification evidence - questions about surrounding circumstances in order to jog a witness memory about some fact or events in issue (provided the answer to the central question is not suggested in the question) - to assist counsel in eliciting the evidence of very young people, people who have difficulty with English and people who are of limited intelligence - where the witness has been declared hostile

Question 61

There are a number of warnings or directions that a judge may issue in relation to matters that arise during the trial. These include:

Answer 61

- the way evidence is given during the proceeding - a warning about evidence that may be unreliable - a warning about lies

Question 62

What is the previous consistent statement rule?

Answer 62

The previous statement made by a witness that is consistent with the witnesses evidence is inadmissible at trial unless exceptions found in the section apply

Question 63

A previous consistent statement is admissible if:

Answer 63

- the statement responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement or on claim of invention - forms an integral part of events before the court - consists of mere fact that a complaint has been made in a criminal case

Question 64

What is the purpose of cross examination?

Answer 64

- 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

Question 65

What are the judicial warnings a judge may give a jury?

Answer 65

- s122 judicial warning that evidence may be unreliable - s123 judicial directions about certain ways of giving evidence - s124 judicial warnings about lies - s125 judicial directions about children evidence - s126 judicial warnings about identification evidence - s127 delayed complaints or failure to complain in sexual cases

Question 66

Judicial directions about evidence that may be unreliable. A judge must consider whether to give a warning under s122(1) whenever the following evidence is given:

Answer 66

- hearsay evidence - evidence of a statement by the defendant if that evidence is the only evidence implicating the defendant - evidence given by a witness who may have motive to give false evidence that is prejudicial to the defendant - evidence of a statement by the defendant to another person whilst both were detained in prison, police station or other place of detention - evidence about the conduct of the defendant that is alleged to have occurred more than 10 years previously

Question 67

Definition of evidence in rebuttal

Answer 67

Is evidence called by either party after the completion of their own case in order to rebut something arising during the trial. It can only be admitted with the leave of the court. May be given to the prosecution if further evidence: - relates purely to a formal matter - relates to a matter arising out of the conduct of the defendant (relevance of which could not reasonably have been foreseen) - was not available or admissible before the prosecution case was closed - is required to be admitted in the interests of justice for any other reason - permission may be granted to the defendant if the interests of justice require further evidence to be admitted in

Question 68

Who can comment on the defendants right of silence?

Answer 68

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

Question 69

Unacceptable questions:

Answer 69

(1) in any proceeding, the judge may disallow or direct that a witness is not obliged to answer any question that the judge considers improper, unfair, misleading, needlessly repetitive or expressed in language that is too complicated for the witness to understand (2) without limiting the matters that the judge may take into account for the purposes of subsection (1), the judge may have regard to - the age/maturity of the witness - any physical, intellectual, psychological or psychiatric impairment of the witness - linguistic or cultural background or religious beliefs of the witness - nature of the proceeding - in the case of a hypothetical question, whether the hypothesis has been tested or will be proved by other evidence in the proceeding

Question 70

What is a hearing in chambers and when would it be used?

Answer 70

S15 of EA06 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 jury is excluded for the duration of the admissibility hearing. Facts determined at a hearing in chambers are sometimes referred to as preliminary facts or a preliminary hearing.

Question 71

If you need to refer to your notebook:

Answer 71

- ask the courts permission - introduce material properly - remember that the defence and the jury are entitled to view your notes, so seal off other entries - you are only allowed to refresh your memory - you cannot read the whole entry unless you have permission to read the notes of the interview

Question 72

If you need to refer to your notebook:

Answer 72

- ask the courts permission - introduce material properly - remember that the defence and the jury are entitled to view your notes, so seal off other entries - you are only allowed to refresh your memory - you cannot read the whole entry unless you have permission to read the notes of the interview