EVIDENCE Flashcards
Define evidence
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.
What makes evidence admissible?
Evidence is admissible if it is legally able to be received by a court.
What is circumstantial evidence?
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.
What is direct evidence?
Any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced.
Define statement
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.
What is relevance?
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding.
What are facts in issue?
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.
What is the weight of evidence?
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
What is an enforcement agency?
Any body or organisation that has statutory responsibility for the enforcement of an enactment including customs, ministry of fisheries, inland revenue department and police.
How do you give evidence in the ordinary way?
- 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
How do you give evidence in an alternative way?
- in the courtroom but unable to see the defendant or other person
- outside the courtroom
- by video recording made before the hearing
How do you give evidence in any other way?
Provided for by the Evidence Act 2006 or any other relevant enactment.
What is a hostile witness?
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
Define incriminate
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.
Define veracity
This is the disposition of a person to refrain from lying whether generally or in a proceeding
Define propensity
A propensity is a tendency to act or behave in a certain way.
E.g. a propensity for violence
What is established in the Woolmington principle?
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.
What are some exceptions to the Woolmington principle?
- defence of insanity is claimed
- specific statutory exceptions exist
- offence is a public welfare regulatory offence
What are two standards of proof for prosecution and defence?
Prosecution is beyond reasonable doubt
Defence is on a balance of probabilities
Define 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
Define balance of probabilities
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.
R v Wanhalla (presumption of innocence)
“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.”
How may evidence be given in a proceeding?
- 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
What are the six objective set out in s6 of the Evidence Act?
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
What are exception to the general rule when no evidence needs to be given of facts?
- judicial notice is taken
- the facts are formally admitted
Define judicial notice
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.
What are presumptions of law?
Are inferences that have been expressly drawn by law from particular facts. Presumptions of law may be either conclusive or rebuttable.
What are presumptions of fact?
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.
Deciding whether evidence is admissible, courts refer certain principals of evidence law. What are they?
- relevance
- reliability
- unfairness
When is relevant evidence inadmissible? (S7 Rule)
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
Name two situations where evidence would be excluded due to unfairness?
- 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)
What does S8 (General Exclusion Provision) state in relation to unfairness?
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
If evidence is admitted, what purpose la can it be used for? (Specific restrictions aside)
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”
What do the exclusive rules of evidence deal with?
- hearsay
- identification
- improperly obtained evidence
- opinion
- propensity
- veracity
What are the two classes of character evidence?
- veracity: a disposition to refrain from lying
- propensity: a tendency to act in a particular way
In deciding whether or not evidence about a persons veracity is substantially helpful, the Judge may consider:
- 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
What is the propensity rule of evidence?
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
What is a hearsay statement?
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.
What is the hearsay rule?
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
What is the general admissibility of hearsay?
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
What are the rationale rules against hearsay evidence?
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
Circumstances in relation to a statement by a person who is not a witness (s16(1)) include:
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
What are examples of a witness being unavailable?
- 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
What is the general exclusionary rule for opinions?
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.
What are the justifications of the general exclusionary rule?
- 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
What is the general admissibility rule for non-expert opinion evidence (s24)?
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.
In order to be admissible under s24, the statement of opinion must fulfil basic criteria:
- 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
What qualifies a person as an expert?
An expert is defined as a person who has specialised knowledge or skill based on training, study or experience.
If the evidence is opinion evidence, in order to comply with s25, the opinion must:
- 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
S25(1) provides that expert opinion evidence will be admissible if the fact-finder is likely to obtain substantial help from the opinion in:
- understanding other evidence
- or in ascertaining any fact in the proceeding
An associated defendant is not compellable label to give evidence for or against a defendant unless two situations apply. State these two situations:
TRIED: the associated defendant is being tried separately to the defendant
DETERMINED: the proceeding against the associated defendant has been determined
What are types of privilege?
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
What is the meaning of self incrimination under s4 of the EA06?
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
What must a person provide to claim privilege against self incrimination in a court proceeding?
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
When is corroboration required as a matter of law in some circumstances?
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
What is the judges role in a trial by jury?
- 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
What must a judge NOT DO in relation to children giving evidence under s125?
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
Define a leading question
Is one that directly or indirectly suggest a particular answer to the question
The prohibition on leading questions is?
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
When are leading questions permitted?
- 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
There are a number of warnings or directions that a judge may issue in relation to matters that arise during the trial. These include:
- the way evidence is given during the proceeding
- a warning about evidence that may be unreliable
- a warning about lies
What is the previous consistent statement rule?
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
A previous consistent statement is admissible if:
- 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
What is the purpose of cross examination?
- 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
What are the judicial warnings a judge may give a jury?
- 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
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:
- 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
Definition of evidence in rebuttal
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
Who can comment on the defendants right of silence?
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
Unacceptable questions:
(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
What is a hearing in chambers and when would it be used?
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.
If you need to refer to your notebook:
- 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
If you need to refer to your notebook:
- 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
