EVIDENCE Flashcards
Define evidence
The whole body of evidence in which the court may take into account to reach their decision. Evidence may be oral, written or visual
Define admissible evidence
Evidence that is legally able to be received by the court
Define Relevance
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding section 7(3) EA2006
Define. Facts in issue
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
Define - Exclusionary rules
These are rules that exclude evidence usually because they are unreliable, unduly prejudicial or otherwise unfair to admit it
Define - Weight of evidence
The weight of evidence is its value in relation to the facts in issue. Factors to consider are
- 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
The weight is the degree of probative force that can be accorded to the evidence
Define - Offer evidence
Offering evidence includes eliciting evidence by cross-examination of a witness called by another party
Define - Give evidence
A witness gives evidence , a party offers evidence, a party who testifies both gives and offers evidence
In a proceeding evidence may be given in the ordinary way. What are those ways
- either orally in a courtroom in front of a judge or jury
- parties to the proceeding
- counsel and members of the public allowed by the judge
- an affidavit filed in The court
- or reading a statement in a courtroom if prosecution and defence consent
Giving evidence in an alternative way
- in a court room but unable to see the defendant or other person
- outside the courtroom or by video recording made before the hearing
Giving evidence in any other way
Provided by the evidence act or any other enactment
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 - Proceeding
A proceeding conducted by the court and any application to a court connected with a proceeding
Define - a 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
Define - witness
This is a person who gives evidence and is able to be cross-examined in a proceeding
Define - hearsay statement
This is a statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents.
Define - veracity
This is the deposition to refrain from lying
Define - propensity
Propensity evidence is evidence about a persons propensity to actin a certain way or have a particular state of mind
Define - direct evidence
This is any evidence given by a witness as to fact in issue that he or she has seen, heard or otherwise experienced
Define - Circumstantial evidence
This is evidence of circumstances that do not directly prove any fact in issue but will allow inferences about the existence of those facts to be drawn
The fundamental principle in criminal law is the presumption of innocence. This is known as the
Woolmington principle.
Practical obligation on defence
The defendant does not have to prove anything if the prosecution proves facts that the defendant committed the act then the defendant has to produce a story or evidence if they want to suggest the conclusion is wrong
Evidential burden on defence
The defendant may wish to put up a defence to a charge that suggests an explanation such as self defence etc
An exception to the woolmington principal where the “burden of proof” is placed on the defendant. The most common example is
The defence of insanity section 23(1) CA61
Standard of proof for prosecution
Beyond reasonable doubt
Standard of proof for defence
On the balance of probabilities
Reasonable doubt amounts to
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 the evidence.
The presumption of innocence means
The accused does not have to give or call any evidence and does not have to establish his or her innocence
The burden of proof lies with the prosecution except where?
- the defence of insanity
- specific statutory exceptions exist
- the offence is a public welfare regulatory offence
Balance of probabilities
Must simply show that it is more probable than not
Section 6 of the evidence act 2006 does what
Helps secure the just determination of proceedings
Purpose of section 6
To help secure the just determination of the proceeding by
- providing for facts to be established by the application of logical rules
- rules of evidence that recognise the importance of the BOR and
- promoting fairness to parties and witnesses and
- protecting rights of confidentiality and other important public interests and
- avoiding unjustifiable expense and delay and
- enhancing access to the law of evidence
Facts that prove the charge
The facts must prove the elements of the charge
Facts in issue
These are facts which in law need to be proven to succeed with the case. They are the facts alleged in the charging document and denied by a plea of not guilty
Circumstantial evidence offers indirect proof of s fact in issue. A judge or jury may infer the existence of a fact in issue
A
A general rule of evidence is
That all facts in issue and facts relevant to the issue must be proved by evidence
Two main exceptions to the general rule when no evidence needs to be given of facts because
- Judicial notice is taken
- The facts are formally admitted
What is judicial notice
When the court takes judicial notice of a fact it declares that it will find that the exists ie. Xmas day is celebrated on 25 December
Section 128(1) - notice of incontrovertible facts
A judge or jury may take notice of facts so known and accepted and cannot reasonably be questioned
Section 129(1) - admission of reliable published documents
A judge may, in matters of public history, science, or art admit as evidence any published documents they consider to be reliable sources of information
Section 129 codifies the common law exception to the hearsay rule that -
Admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature
Section 9(2) and 9(3) relate to facts formally admitted
In a trial the counsel for either side can accept that some evidence is accepted or proven at the outset, so it need not be discussed.
Presumptions where no direct evidence is offered or obtainable, disputed facts are sometimes inferred from other facts which are proved or known.
Presumptions may be of law or of fact
Presumptions of law are inferences that have been expressly drawn by law from particular facts
Presumptions of law may be either conclusive or rebuttable
Presumptions of fact are
Simply logical inferences and so are always rebuttable.
Evidence is admissible if it can be-
Legally received by the court
Determining admissibility
No particular standard of proof attaches to decisions as to the admissibility of evidence unless a provision under the evidence act provides for it. Ie section 45 - identification evidence in rape trials where the judge decides on admissibility
R v burrows - the court held that
The party wishing to bring the evidence has the burden of showing the evidence is admissible
The courts refer to the following principles of evidence law when deciding its admissibility
- relevance
- reliability
- unfairness
Relevance section 7. The fundamental condition for the admissibility of evidence is that it must be relevant
A
Section 7(1) - all relevant evidence is admissible in a proceeding except evidence that is -
(a) inadmissible under this act or any other act - or
(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 tendency to prove or disprove anything that is of consequence to the determination of the proceeding
Relevant evidence
Means any evidence that has a tendency to prove or disprove anything that is of consequence in determination of the proceeding
Fairness as to the admissibility of evidence is a matter of discretion for the trial judge
It usually arrives in two ways
- if it would result in some unfair prejudice in the proceeding
- if it were obtained in some unfair manner ie, obtaining a confession by some unfair and improper methods
The section 8 test involves balancing the probative value of evidence against the risk that it will,
- have an unfairly prejudicial effect on the proceeding or
- needlessly prolong the proceeding
Section 8(1)(a) must take into account the right of the defendant to offer an effective defence
A
Section 15 relates to a witness giving evidence to prove the facts necessary to decide whether some other evidence should be admitted. Voir dire
If the other evidence is not forthcoming then the provisionally admitted evidence must be excluded
What is the aim of the evidence act 2006
To help secure the just determination of proceedings
What are the two exceptions for having to prove any facts in issue
- when they are formally admitted by both prosecution and defence and
- when judicial notice is taken of the facts
What are the three principles of evidence law
- relevance
- reliability
- unfairness
For facts to be received as evidence they must be both.
- relevant and admissible
The exclusive rules of evidence deal with
- veracity
- propensity
- hearsay
- opinion
- identification
- improperly obtained evidence
Section 8 is the general rule of exclusion relating to the probative value as opposed to the prejudicial effect of the proceeding
A
What is the purpose of the evidence act under section 6
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 bill of rights and
c, promoting fairness to parties and witnesses and
d, protecting rights of confidentiality and other important public interests and
e, avoiding unjustifiable expense and delay and
f, enhancing access to the law of evidence
Section 8 test for exclusion of evidence
Involves balancing the probative value of the evidence against the risk that it will have an u fair prejudicial effect on the proceeding
The exclusive rules of evidence deal with
- Veracity
- Propensity
- Hearsay
- Opinion
- Identification
- Improperly obtained evidence
General rule of exclusion of probative value versus prejudicial effect on the proceeding
A
Veracity is a disposition to
Refrain from lying
Propensity is a tendency to
Act in a particular way
The rules about a persons veracity do not apply if the veracity is an element of the offence in which they are being tried ie
Perjury
The veracity or propensity rules do not apply to sentencing or bail hearings except when the evidence is covered by
Section 44 which relates to the sexual experience of a complainant
Section 37 relates to
Veracity rules
Section 37 (1) states a party may not offer about a person unless the Veracity evidence is
Substantially helpful in assessing that persons veracity
Section 38 (1) a defendant may give evidence about there veracity
38(2) The prosecution may offer veracity evidence about the defendant only if
(a) they have given evidence about their own veracity or challenged the veracity of a prosecution witness and
The judge permits it
38(2)(b) judge may take into account any of the following matters
(a) the extent to which the defendant or prosecution witness veracity has been put in issue
(b) the time that has elapsed since any conviction
(c) whether evidence given by the defendant was elicited by the prosecution
Section 37(3) in deciding whether evidence proposed to be offered about a persons veracity is substantially helpful, judge may consider the following
a. Lack of veracity of person from previous dealings
b. Person has been convicted of offences that indicate a propensity for dishonesty
c. Previous inconsistent statements
d. Bias on part of that person
e. Motive on part of that person to be untruthful
37(4) a party who calls a witness
a, may not offer evidence against that persons veracity unless judge declares them hostile but,
b, may offer evidence as to the facts in issue contrary to the evidence of that person
Substantial helpfulness test applies to both
Veracity evidence in evidence in chief and
That elicited through cross examination
Substantial helpfulness is not a sufficient test in two instances
- Where the prosecution wish to offer evidence about a defendants veracity and
- Where a defendant offers veracity evidence about a co-defendant
Propensity evidence means
40(1)(a) means evidence that tends to show a persons propensity to act in a certain 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
Propensity evidence does not include 40(1)(b)
i, 1 of the elements of the offence for which the person is being tried or
ii, the cause of action in the proceeding in question
Propensity evidence includes
- propensity as to actions
- propensity as to states mind eg, lack of inhibition or a love for violence
Propensity does not include
- evidence of any act or omission that is one of the elements to which the person is tried
- evidence that is solely about a persons veracity
Section 41 - propensity evidence about defendants
41(1) a defendant may offer propensity evidence about themselves
41(2) if they do the prosecution, with the judges permission, may offer propensity about the defendant.
Section 43(1) the prosecution may offer propensity evidence against a defendant only if the evidence has a probative value in relation to an issue in dispute which outweighs the risk of unfair prejudicial effect on the defendant
A
Section 43(2) he judge must assess the probative value of propensity evidence and the nature of the issue in dispute
A
Section 43(3) - when assessing the probative value of propensity evidence, the Judge may take into account the following
- the frequency with which the acts, omissions or circumstances which are the subject of the evidence have occurred
- the connection in time between acts, omissions and circumstances
- similarity between acts, omissions, circumstances
- number of persons making allegations against the defendant
- whether allegations may be result of collusion or suggestibility
- the extent to which the acts, omissions etc are unusual
43(4) judge must consider
- whether evidence is likely to unfairly predispose the fact finder against the defendant or
- whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
For evidence to be admitted under section 43 the evidence must be
- contain propensity evidence that tends to show a persons propensity to act in a certain way or to have a particular state of mind, being evidence of acts, omissions or circumstances with which the person is alleged to have been involved
- have a probative value in relation to a fact in dispute
- have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
In relation to propensity evidence the onus is on the prosecution to satisfy that the
Probative value outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
43(2) when assessing probative value judge may also take into account
- strength of other evidence of the defendant’s guilt
-
A hearsay statement is defined as a statement that
- is made by a person other than a witness and
- is offered in evidence at the proceeding to prove the truth of its contents
Statement means
- a written or spoken assertion by a person of any matter or
- non verbal conduct of a person that is intended by that person as an assertion of any matter
Definition of hearsay means the
Out of court statements made by a witness
Section 18 general admissibility of hearsay
(1) a hearsay statement is admissible in any proceeding 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) he judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness
Section 18 there are two criteria for hearsay admissibility
1, reliability
2 unavailability or undue expense or delay would be caused
Reasonable assurance means
A reference to reliability, the evidence must be reliable enough for the fact finder to consider it
Section 16(1) circumstances Circumstances in relation to a statement by a person who is not a witness include
- the nature of the statement
- the contents of the statement
- the circumstances that relate to the making of the statement
- any circumstances that relate to the veracity of the statement
- any circumstances that relate to the accuracy of the observation of the person
Section 16(2) unavailable witness
A person is unavailable as a witness if they are
- dead
- outside nz and not reasonably practicable for them to be a witness
- is u fit to be a witness because of age, physical or mental ability
- cannot be identified or found
- is not compellable to give evidence
What is 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
Beyond reasonable doubt is
The standard of proof required by the prosecution to prove all the elements of the offence. Jurors must be satisfied of guilt before they can convict
Definition of hearsay statement
A statement that was made by a person other than a witness and is offered as evidence in a proceeding to prove the truth of its contents
Section 18 - admissibility of hearsay statement
A hearsay statement is admissible in any proceeding if
A, the circumstances relating to the statement provide reasonable assurance that the statement is reliable and either
i, the maker of the statement is unavailable as a witness or
ii, the judge considers that undue expense or undue delay would be caused if the maker of the statement were required to be a witness
Two criteria for hearsay admissibility are
1 reliability and
2 unavailability (undue expense or delay)
Section 22 notice of hearsay in proceeding
A party who proposes to offer a hearsay statement in a proceeding must provide every other party with a written notice stating
- the party’s intention to offer the hearsay statement in evidence
- the name of the maker of the statement
- if statement made orally contents of statement
- if section 18(1)(a) is relied on
A judge may dispense with section 22(2), (3) and (4) (notice of hearsay statement to all parties) if (3 reasons)
1, having regard to the nature and contents of the statement, they deem no party will be prejudiced by failure to comply
2 compliance was not reasonably practicable in the circumstances or
3 the interests of justice so require
Reasonable assurance that the hearsay statement is reliable can include
Weather it is written, oral or signed, witnessed first hand
A person is unavailable as a witness if
a, they are dead
b, is outside of nz and is not reasonably practicable for him or her to be a witness
c, is unfit due to age, physical or mental condition
d, cannot be identified or found
e, is not compellable to give evidence
Admissibility of Opinion evidence section 24
A witness may state an opinion in evidence 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 for opinion evidence to be admissible under 24 it must fulfil two basic criteria
1, opinion must be the only way in which to effectively communicate the information to the fact finder and
2, the witness must be stating an opinion
An opinion is defined as
A statement of opinion that tends to prove or disprove a fact
The rationale behind the exclusionary rules is to
Prevent the admission of unreliable, superfluous or misleading evidence
Section 25 expert evidence
If the evidence is opinion evidence then to comply with section 25 he opinion must be
- be that of an expert
- comprise expert evidence and
- off substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding
Opinions from non expert people on matters that require an expert opinion are inadmissible
A
Character evidence is divided into two categories
Veracity evidence - refrain from lying
Propensity evidence - to act in a particular way
Before a person is served with a summons to appear, verification must be made to see if
- they are allowed to give evidence
- they are required to give evidence
- they can refuse to give evidence
- what type of evidence they will give
Everyone is eligible and compellable to give evidence
Section 71
-
Defendants or co defendants compellable to give evidence
Section 73
- a defendant is not a compellable witness for the prosecution or the defence
Section 73(2)
An associated defendant can give evidence against a defendant if
- they are being tried separately from the defendant
- the proceeding against the associated defendant has been determined
Section 73(3)
A proceeding has been determined if
- proceeding has been stayed, or is in summary proceeding, withdrawn or dismissed or
- the associated defendant has been acquitted or
- has plead guilty to or found guilty of or has been sentenced
Section 73(4)
Define associated defendant
- An offence for which the defendant is being charged or
- an offence that relates or is connected with the defendants charge
Bank officers are not compellable to give evidence to produce the contents of banking records if
He contents can be proven under the business records exception to the hearsay rule or to appear as a witness to prove the matters recorded in the bank records
The right of privilege is defined as
The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
Privilege could arise from the following
- the contents of the evidence
- the class of the evidence
- because of the nature of a particular relationship
Types of privileged information are
- communication with lawyers
- solicitors trust accounts
- prep materials for proceedings
- settlement negotiations
- communication with priests
- info from doctors and psychologists
When a claim of privilege is made it is important to enquire if
That information falls within the scope of privilege in question
Section 53(4) grants a judge discretion to prevent the disclosure of material that comes into the possession of an unauthorised person
A
A lawyers privilege to withhold information provided under privilege takes primacy over all other public interests
A
A judge has overall authority or by their own initiative to prevent the disclosure of privileged information even if privilege is waived by the person who has privilege
A
Privilege information can appear as
- communications
- information
- opinion or
- documents
Preparatory materials for proceedings are privileged such as
- Comms between the party and any other person
- Comms between lawyer and other person
- information compiled or prepared by party or party’s lawyer
- information compiled or prepared at the request of the party or lawyer
Documents which are not privileged become so when they are compiled as they may reveal tactics planned for litigation
A
Communication between a person and a minister of religion is privileged if the communication was
- made in confidence
- made by the person to for the purpose of obtaining or receiving from the minister any, religious or spiritual advice or benefit or comfort
Protection under section 58 (ministers of religion) requires that
- communications are made in confidence and within the ministers capacity as a minister of religion
If a persons communication with a minister of religion is for the purpose enabling or aiding an offence to be committed the judge must disallow the privilege
A
Limited privilege by medical and psychologists.
Privilege applies to a person that consults or is examined by a medical practitioner or a psychologist for drug dependency or any other condition or behaviour that may manifest in criminal conduct
It does not apply in the case of a person being ordered by a judge or other lawful authority to undergo a medical or psychological exam
Privilege for a medical relates to a person with a drug dependency or any other condition that may manifest itself into criminal conduct
A
The rationale for Section 59 is to encourage drug addicts and people with mental disorders to seek help and speak openly with those who can help.
A
Privilege applies to disclosures made by the patient to the medical practitioner and their staff by not the reverse.
A
A patients privilege does not apply when
It is ordered by a judge or other lawful authority
Privilege will not apply to statements made or information obtained during medical treatments which are a direct result of unlawful conduct or are the by-product of criminal conduct.
A
Privilege against self incrimination
Section 60
A person is required to provide info 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 and
- that info would likely be incriminating
Section 60(2)
The person -
- has a privilege and cannot be required to provide it and
- cannot be prosecuted for refusing or failing to provide info whether or not privilege was claimed
-
A
A defendant cannot claim privilege for self incriminating comments when giving evidence about matters they are being tried for, privilege can only be claimed when
The info may expose risk of conviction for a different offence not on trial for
A person under section 64 informer protects the persons identity however privilege does not apply if
- called by the prosecution as a witness relating to the information given
- if the judge believes a Prima facie case exists where the info from the informer was for a dishonest person or to aid or enable anyone to commit or plan an offence
- where the judge is of the opinion it is necessary for the defendant to present an effective defence
The general rule is that evidence must not be given about the deliberations of a jury however
Evidence that did not form part of the deliberations can be
A judge may release evidence of jury deliberations if
The judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.
In deciding to release jury deliberations the judge must weigh up
- public interest in protecting the confidentiality of jury deliberations and
- the public interest in ensuring that justice is done in those proceedings.
Judicial notice section 128 is only concerned with
- facts that are facts in issue or
- relevant to a fact I. Issue
Judicial notice section 128(1) deals with
- concerns notice of facts known and accepted generally or in the locality eg, the date of a local carnival
Judicial notice section 128(2) judge may direct
A jury as to judicial notice of a particular date or fact
Presumptions- no direct evidence is offered or is obtainable
Disputed facts are inferred by other proven facts which are proved or known.
Presumptions of law - are inferences that have been
Expressly drawn by law from facts
Presumptions of facts - are those that the mind naturally and logically draws from the given facts eg, logical inferences
A
Voir dire is when evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in the proceeding
A
Judge may take into account following when deciding whether prosecution may question defendants veracity
- extent to which the defendants veracity has been put in issue in their evidence
- time that has elapsed since any conviction about which the prosecution seeks to give evidence
- whether evidence given by defendant was elicited by the prosecution
Privilege arises from
3 things
The class of the relationship
The contents of the evidence
The nature of the particular relationship
Types of privilege outlined in the EA are
- Comms with legal advisers
- solicitors trust accounts
- predatory materials for a proceeding
- Comms with ministers of religion
- info obtained by medical people and physcs
- informers
- privilege against self incrimination
Information obtained by drs section 59(b)
Privilege does not apply to anyone who is required by a judge or other lawful authority to present themselves for examination
Information obtained by drs
Section 59(a)
Privilege applies to a person who consults a dr or psych for drug dependency or any other condition or behaviour that may manifest into criminal conduct
Corroboration of evidence is needed for offences such as
P
False
False
T
Perjury
False oaths
False statements or declarations
Treason
Corroboration means
Independent evidence confirming or supporting a fact
Privilege defines as
A right to refuse or to disclose, or to prevent disclosure of evidence that would otherwise be admissible
Judges role in a jury trial
- decide all questions concerning the admissibility of evidence
- explain and enforce the general principles of law applying to the point at issue
- instruct the jury on the rules of law which the evidence is to be weighed once it has been submitted
Witnesses who are 12 years or older must take an oath or affirmation before giving evidence. Witnesses under 12 must
- be informed by the judge of the importance of telling the truth and not telling lies
- after being given that information make a promise to tell the truth before giving evidence
The purpose of evidence on chief is to
Elicit testimony that supports the case if the party calling the witness
Leading questions may not be asked during evidence in chief or re-examination because
- it will produce unreliable evidence as
- most people will agree with a suggestion put to them
- it reduces genuineness
- can result in manipulating the evidence
When can leading questions be used
- question relates to introductory or undiluted matters
- all parties have consented to the question
- the judge allows the question
Leading questions may be allowed in the following circumstances
- subject of identification evidence
- questions about surrounding circumstances to jog a witnesses memory
- eliciting evidence in chief from very young people
- difficulty speaking English
- limited Intelligence
- vulnerable witness
- witness declared hostile
A witness may refresh their memory by reading their statement before giving evidence
A
Previous consistent statements are generally inadmissible
Section 35
The repetitive nature of consistent statements may give that evidence more weight than it deserves.
A previous statement of a witness that is consistent with the witnesses evidence in chief is admissible if it is needed to respond to a challenge of the witnesses veracity or accuracy based on previous inconsistent statements
A
Hostile witnesses may include asking the witness
- leading questions
- questions designed to probe the accuracy of memory and perception
- asking questions as to prior inconsistent statements
- and challenges to their veracity
A hostile witness is defined as
- person who exhibits a lack of veracity or unfavourable evidence to the party that called them
- gives evidence that is inconsistent with their statement
- refuses to answer questions
2 purposes of cross examination are
- to elicit information supporting the case of the party conducting the examination
- to challenge the accuracy of the testimony given in chief
Public welfare regulatory offences
Woolmington principal does not apply
The presumption of innocence means the accused does not have to give or call any evidence or establish their innocence
A
Judicial notice
The court declares that it will find that the fact exists or will direct a jury to do so even though evidence has not been established that the fact exists.
128(1) and (2) - judicial notice
A
Presumptions
These are inferences drawn from known or proved facts
Presumptions of law
These are inferences expressly drawn by law from particular facts
Presumptions of facts
Presumptions that the mind naturally draws from given facts
Unfairness arises from two situations
- evidence may be excluded if it would result in some unfair prejudice in the proceeding
- improperly obtained evidence
Section 8 - general exclusion
The test involves two points.
- have an unfairly prejudicial effect on the proceeding
- needlessly prolong the proceeding
Section 8 must take into account the right of the defendant to offer an effective defence
A
All facts must be proved by evidence but there. Are two exceptions
- facts are formally admitted
- judicial notice is taken that the fact exists
Three certain principles of evidence law
- reliability
- relevance
- unfairness
Facts to be received as evidence they must be both
- relevant
- admissible
When deciding whether to allow prosecution to offer veracity evidence about the defendant. He may consider the following three points
- extent to which the defendants veracity has been put in issue in their evidence
- time that has elapsed between convictions for which the prosecution wish to offer veracity evidence
- whether any evidence was elicited by the prosecution through cross examination
Judge may consider following when assessing probative value v risk of prejudicial effect for propensity evidence
- frequency in which the acts, etc
- connection in time between acts, etc
- similarity between acts, etc
- number of people making allegation
- collusion or suggestibility by those people
- unusual factors of acts, omissions,circumstances
The rationale for the admission of propensity evidence rests largely on the concept of linkage and coincidence
A
The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk of an unfairly prejudicial effect on the defendant.
A
A hearsay statement is admissible under section 18 if
- the circumstances relating to the statement provide a reassurance that the statement is reliable
- the maker of the statement is not available as a witness or
- the judge considers that undue delay or expense would occur
MUST COMPLY WITH SECTION 22 - notice of hearsay statement
Hearsay statement section 18 admissibility
The reason for the rules existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately tested
A
Reasonable assurance means
That the evidence must be reliable enough for the fact finder to consider it and draw on its own conclusions as to the weight to be placed on the evidence.
In order for opinion evidence to be admissible under section 24 it must fulfil two categories
- opinion must be the only way to communicate the information to the fact finder
- the witness must be stating an opinion
Obligation on defence re Expert brief must be disclosed 14 days before the trial
A
Section 71 - in a criminal proceeding,
Any person is eligible to give evidence and
A person who is eligible is compellable to give evidence
A
An associated defendant charged together with a defendant cannot give evidence against the defendant unless
- they are charged separately
- the case for the associated defendant has been determined.
Privilege does not extend to any communications for any dishonest purpose or to enable or aid anyone to commit or plan an offence
A
A person is an informer if
64 EA 2006
Has supplied, gratuitously or for reward, information to an enforcement agency, or representative, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that their identity will not be disclosed and
Is not called by the prosecution as a witness to give that information
Informer privilege under section 64 can be disallowed by the judge if
- the prosecution call the informer as a witness to give testimony to that statement
- the judge believes a Prima facie case exists that the info was given for a dishonest purpose or to commit, enable, aid , plan or commit an offence
- the judge believes that evidence of the information is necessary to enable the defendant to present an effective case
Jury deliberations are privileged however the judge may allow evidence from deliberations if they are satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.
The judge must weigh up
- public interest in protecting confidentiality of jury deliberations
- public interest in ensuring that justice is done in those proceedings
Self incrimination means
Information that could reasonably lead to or increase the likely hood of the prosecution of that person for a criminal offence
Section 128(1) judge or jury can take notice of facts known and accepted and cannot be reasonably questioned
Section 128(2) judge may take notice of published facts whose accuracy cannot be reasonably questioned
Veracity evidence
In order for prosecution to offer veracity evidence about the defendant they must
- show that the veracity is relevant
- the defendant has offered evidence about his veracity or challenged the veracity of a witness
- must meet substantial helpfulness test
- permission from judge
