EVIDENCE 2

Question 1

define Evidence

Answer 1

is a term for the whole body of material which a court/tribunal may take into account when reaching their decision.
Evidence may be Oral, written or visual

Question 2

Define Facts in Issue

Answer 2

are those which
1. prosecution must prove to establish the elements of the offence
2. the defendant must prove to succeed with a defence, in respect of which he/she carried the burden of proof.

Question 3

Define Veracity

Answer 3

the disposition of a person to refrain from lying, generally or in a proceeding

Question 4

Define witness

Answer 4

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

Question 5

Define relevance

Answer 5

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

Question 6

in a proceeding, evidence may be given in a number of ways, list and describe them

Answer 6

Ordinary Way - either orally in a courtroom in the presence of a judge and the parties ( cousel/jury) or in an affidavit filed in court by reading a written statement in a courtroom if both the pros and defence consent-the statement is admissible, and it is the personal statement of the maker

Alternative Way - in the courtroom but unable to see the defendant or other person: outside the courtroom or by video recording made before the hearing.

Any Other Way - Provided for the the Evidence Act 2006 or any other relevant enactment

Question 7

what are 2 ways of giving Alternative evidence.

Answer 7

1. in a courtroom but unable to see the defendant or other person
2. By video recording made before the hearing

Question 8

Define Statement

Answer 8

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

Question 9

Define direct evidence

Answer 9

any evidence given by a person as to a fact in issue that she /he witness by seeing, hearing or otherwise experienced.
ie she saw the defendant stab the vicinity with a knife

Question 10

Define circumstantial evidence

Answer 10

evidence that does not directly prove any fact in issue, but allows inferences about the existence of those facts to be drawn.

ie the defendant was seen in the vicinity at the time of the crime.

Question 11

The weight of Evidence is its value in relation to the facts in issue, they will depend on a wide range of factors such as?

Answer 11

a. The extent to which it is directly relevant to or conclusive
of those facts.
b. The extent to which it is supported or contradicted by other evidence
produced.
c. The veracity of the witness

Question 12

What did WOOLMINGTON v DPP establish in relation of the presumption of innocence

Answer 12

The burden of proof clearly lies with the prosecution to prove all the elements of the offence.

Question 13

the fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution, what are two exceptions to this rule?

BRD
BOP

Answer 13

1. Beyond reasonable doubt - is the standard of proof required for
   prosecution to prove its case , jurors need to be satisfied of guilt
   before a conviction can be reached
2. Balance of Probabilities - is the standard of proof required for
   defence to prove a particular element of its case, means it
   must carry a reasonable degree of probability

Question 14

R v WANAHALLA - reasonable doubt is?

Answer 14

An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration of all the evidence.

Question 15

What is the purpose of Evidence law, give 4 examples

E P P A

Answer 15

the purpose of the act is to help secure the just determination of proceedings by
1. ENHANCING access to the law of evidence
2. PROMOTING fairness to parties and witnesses
3. PROTECTING the rights of confidentiality and other important public
interests
4. AVOIDING unjustifiable expense and delay

Question 16

The burden of proof lies with the prosecution except where?

I S P

Answer 16

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

Question 17

an officer who prepares a court case must consider what makes good evidence, including the facts to prove the charge - explain the term “facts to prove the charge”?

Answer 17

a. the facts must prove the elements of the charge and the evidence
should be made up of facts that prove the charge
b. 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 18

what are Presumptions of law and give an example

Answer 18

Presumptions of law are inferences that have been expressly drawn by law from particular facts eg, a conclusive and irrebuttlable presumption would be that a child under 10 can not be convicted.

Question 19

what are Presumptions of Facts and give an example

Answer 19

are those which the mind naturally and logically draws from the given facts,
eg one would assume that a person has guilty knowledge if they have possession of recently stolen items.

Question 20

What are the 2 exceptions to the Burden of Proof

Answer 20

1. a defence of insanity
2. where the defendant provides a defence where they can prove the absence of something such as “intent”

Question 21

explain the concept of Judicial Notice (S128 &129)

Answer 21

when the court takes Judaical notice of a fact, it declares that the fact exists or direct the jury to do so even if the evidence has not been established eg. the date of xmas day. Rather than get an expert witness to swear its is on the 25/12, Judaical notice would be taken on the date.

Question 22

what are the 4 principles of admissability?

Answer 22

1. Reliability
2. Relevance
3. Unfairness
4. Public Interest
   R.R.U.P

Question 23

the fundamental conditions for admissibility evidence is that it must be relevant. according to S7 when might relevant evidence NOT be admissible?

Answer 23

a. inadmissible under this Act or any other Act, or
b. excluded under this Act or any other Act

Question 24

What are the circumstances where relevance evidence would be EXCLUDED

Answer 24

it excludes an unnecessary matters that do no related to the precise issue/issues to be determined by the court.
Evidence can be admitted on any basis for which it is relevant.

Question 25

Evidence, even if relevant, it may be excluded if it were to result in unfairness. Which 2 ways may unfairness arise in regards to evidence?

Answer 25

1. if it were to result in unfair prejudice in the proceeding
2. if it is obtained by unfair or improper means

Question 26

Explain S8 test

Answer 26

involves balancing the probative value or evidence against the risk.
- if it were to have an unfairly prejudicial effect on the proceeding
- needlessly prolong the proceeding.

Question 27

What is Voir Dire?

Answer 27

a hearing where evidence is given by a witness to prove the facts, necessary for deciding whether some other evidence should be admitted to a proceeding.

Question 28

If evidence is admitted, for what purpose can it be used?

Answer 28

1. once evidence is admitted, it can generally be used for all purposes
2. the statue proceeds on the basis that generally speaking - evidence is either admissible for all purposes or it is not admissible at all. (hart)

Question 29

List 4 of the matters that the exclusive rule of evidence deal with?

Answer 29

1. Veracity
2. propensity
3. hearsay
4. Opinion
5. Identification
6. Improperly obtained Evidence.
   POHVII

Question 30

4 points on veracity a Judge must take into account (s37)

Answer 30

1. lack of veracity on the part of a person when under legal obligation to tell the truth.
2. that the person has a conviction of 1 or more offences indicating dishonesty or lack of veracity.
3. an previous inconsistent statements
4. a motive to be untruthful

Question 31

the prosecutor may offer evidence about a defendants veracity only if…?

Answer 31

a. when the the defendant has offered evidence regarding their veracity or has challenged the veracity of a prosecution witness
b. when the judge permits the prosecution to do so.

Question 32

what does propensity evidence mean S40(1)(a)

Answer 32

particular evidence that tends to show a persons propensity to act in a particular way, or in a particular state of mind.
evidence of acts, omissions, events or circumstances in which they are alleged to have been involved in

Question 33

what does propensity evidence exclude?

Answer 33

does not include evidence of an act/omission that is
i. 1 of the elements of the offence for which the person is being tried or
ii. the cause of the action in the proceeding in question

Question 34

propensity evidence includes

Answer 34

propensity as to actions
propensity as to state of mind

Question 35

Probabtive Value - what is the test for admissibility?

Answer 35

is whether the evidence has probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 36

Define Hearsay

Answer 36

A statement made by a person other than the witness
A statement offered in evidence to prove the truth of its contents

Question 37

Why is hearsay Evidence excluded. list 3 reasons for the rule against it.

Answer 37

a. where the maker of the statement is not called as a witness, there is no opportunity to x examine that person regarding its contents, or the circumstances it was made on etc.

b. concern that juries can not evaluate evidence properly without being able to see the demeanour of the maker of the statement.

c. there is danger that witnesses will make mistakes about the meaning or content of statement made by other people. ie like Chinese whispers!!

Question 38

list 4 reasons why a witness may be unavailable?

Answer 38

1. dead
2. are outside NZ and is not practical to be a witness
3. unfit to be a witness because of age or physical/mental condition
4. can not be identified or found
5. are not compel-able to give evidence.

Question 39

under S19(1) a business record means, a document that is made…

Answer 39

to comply with a duty or in the course of a business and as a record or part of a record of that business.

Question 40

Opinion rule, why is opinion evidence unreliable?

Answer 40

• where a witness offers bare opinion it holds little probaitve weight.
  *There is danger that opinion evidence will ‘usurp’ the function of the tribunal of fact
  *A witnesses evidence of opinion may be based on other evidence which would be
  inadmissible.

Question 41

general admissibility of opinions - non expert opinion evidence.

Answer 41

a witness may state an opinion in evidence if that opinion is necessary to enable the witness to communicate, or for the fact finder to understand what was seen, heard etc.

Question 42

in order for opinion evidence to be admissible, what 2 criteria must be fulfilled.

Answer 42

1. opinion must be the only way in which to effectively communicate the info to the fact finder
2. the witness must be stating an opinion from something personally perceived.

Question 43

in order for opinion evidence to comply with s25 the opinion must?

Answer 43

1. be that of an expert
2. comprise of expert evidence
3. offer substantial help to the fact finder in understanding other evidence or
   ascertaining any fact in the proceeding.

Question 44

define Expert Witness?

Answer 44

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

Question 45

before a person is summonsed to court verification must be made as to … list 4 things,

Answer 45

1. whether they are allowed to give evidence
2. whether they are required to give evidence
3. whether they can refuse to give evidence
4. what type of witness they will be

Question 46

Eligibility and compellability, what does s71 state

Answer 46

in a proceeding any person is eligible to give evidence and, that person is compelleable to give that evidence.

Question 47

what makes a witness compellable

Answer 47

A witness is compellable if they can be required to give evidence against their will for both prosecution and defence.

Question 48

what makes a witness eligible?

Answer 48

a witness is eligible if they are lawfully able to give evidence on behalf of a prosecution or defence

Question 49

compel-ability of defendants in criminal proceedings, who is not compellable?

Answer 49

a. a defendant in a criminal proceeding in not a compellable witness for
the prosecution or defence in that proceeding
b. an associated defendant is not compellable to give evidence for or
against unless…
* they are being tried separately
* the proceeding against the associate has been determined.

Question 50

What is privilege - list 5 categories

Answer 50

it is the right to refuse to disclose/prevent disclosure of what would otherwise be admissible
1. communication with legal advisers
2. communication with a religious minister
3. information gained by medical practitioners/clinical psychologists
4. preparatory materials for a proceeding
5. solicitors trust account
6. settlement negotiations

Question 51

limited privilege protecting information obtained by medical practitioners/clinical psychologists is allowed under S59.
who does it apply to an who does it not?

Answer 51

applies to a person who consults/examined for drug dependency or other condition that may manifest itself in criminal conduct

does not apply to a person who has been required by a judge to submit themselves to a doctor/psychologist for examination

Question 52

under S121 it is not necessary for evidence on which the prosecution relies to be corroborated except in respect to offences of

Answer 52

perjury
false oath
false statement/declaration
treason

Question 53

what is the judges role in trial by jury?

Answer 53

1. to decide all questions concerning the admissibility evidence
2. explain and enforce general principles of law - regarding the point at
   issue
3. instruct the jury on the rules of law by which the evidence is to be
   weighed once it has been submitted.

Question 54

define leading questions

Answer 54

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

Question 55

what are 3 reasons why leading questions are not generally permitted.

Answer 55

1. there is a natural tendency for people to agree with suggestions put
   to them by saying yes
2. counsel asking leading questions of there own witnesses can more
   easily get the answer they wish to receive
3. there is danger that leading questions will result in the manipulation or construction of evidence between the counsel and the witness

Question 56

can a witness refresh their memory before court,?

Answer 56

Yes, they can refresh their memory before giving evidence in court by reference of there statement or to check the recollection of events with the interviewing officer

Question 57

if a witness wishes to consult a document while giving evidence the following must be satisfied

Answer 57

• the leave of the judge must be obtained
• the document must be shown to all parties in the proceeding
• the document need to have been made by the witness at a time their
  memory was fresh.

Question 58

if a witness is declared hostile, they may be as questioned in the manner of being X examined list 4 things this may include

Answer 58

1. asking leading questions
2. asking questions designed to probe accuracy of memory/perception
3. asking questions as to prior inconsistent statements
4. other challenges to veracity, including evidence from other witnesses

Question 59

define hostile witness

Answer 59

exhibits lack of veracity when giving evidence unfavourable to the party who called them as a witness

give evidence that is inconsistent with a statement already made by that witness, and exhibits an intention to be unhelpful

refuses to answer questions or deliberately withholds evidence.

Question 60

what types of evidence may be unreliable, list 4

Answer 60

1. hearsay evidence
2. evidence of a statement made by the defendant , if that is the only
   evidence implicating the defendant.
3. evidence given by a witness who may have motive to give false
   evidence, prejudicial to the defendant
4. evidence of a statement by the defendant to another person made
   while both in prison/police station or other place of detention.

Question 61

does a judge have to give a warning where a child is a witness, if not why

Answer 61

No, a judge does not have to give warning in a case involving child complaints where the warning would not have been given had the complainant been an adult.

Question 62

if you need to refer to you notebook you must?

Answer 62

ask for the courts permission
introduce the material properly
jury and defence are entitled to view the officers notebook so seal other entries.
remember that you are only allowed to refresh you memory, can not read the whole entry