Evidence

Question 1

s37 EA06 relates to the veracity rules of evidence. When a judge considers whether evidence about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters: (There are 5)

Answer 1

1. lack of veracity by person when under a legal obligation to tell the truth. (e.g. an earlier proceeding)
2. convictions for offences that indicate a propensity for dishonesty or a lack of veracity.
3. previous inconsistent statements made by the person
4. bias on the part of the person
5. a motive to lie.

Question 2

(a) What are presumptions of law?

(b) What are presumptions of fact?

Answer 2

(a) inferences expressly drawn by law from particular facts and may be conclusive or rebuttable. E.g. child under 10 cannot be convicted.
(b) Natural inferences that could be logically drawn from a set of facts. E.g. that a person with possession of recently stolen goods must have guilty knowledge. These are always rebuttable.

Question 3

Where the onus of proof is reversed and the defence is required to prove an element, to what standard must it proved?

Answer 3

On the balance of probabilities. Which means they must show that it is more probable than not.

If the probabilities are equal, then burden is not discharged

Question 4

s23 EA06 provides a general exclusionary rule against opinion evidence. What are the justifications behind this?

s24 EA06. General admissibility of opinions. What is it?

s25 EA06. Admissibility of expert opinions. What is it?

Answer 4

s23 EA06 (Reasons against opinion evidence)

1. Bare opinion holds less probative weight.
2. The opinion evidence would confuse the facts and prolong the proceedings.
3. a witnesses opinion evidence may be based on other evidence which, if stated expressly would be inadmissible.

s24 EA06 (General admissibility of opinions)
Two basic criteria:
1. opinion must be the only way to effectively communicate the information to the fact finder.
2. Witness must be stating an opinion from something personally perceived.

s25 EA06 (Expert opinion)
Must be
1. Be that of an expert, AND
2. comprise expert evidence, AND
3. offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

Question 5

The general rule about leading questions is that leading questions are not to be put to a witness during evidence in chief or re-examination. What are the three reasons why leading questions are not generally permitted?

Answer 5

1. There is a tendency for people to agree with suggestions put to them by saying ‘yes’.
2. Counsel asking leading questions of their own ‘witnesses’ can more easily elicit they wish to receive thereby reducing genuineness of the testimony
3. Danger that they will result in manipulation or construction of evidence through collusion.

Question 6

List four occasions where leave may be given to the prosecution to allow evidence in rebuttal.

Answer 6

If further evidence:

1. relates to a purely formal matter
2. relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen.
3. was not available or admissible before the prosecution case closed
4. is required to be admitted in the interest of justice for any other reason.

Question 7

Who is not compellable to give evidence?

Answer 7

1. Defendant in a criminal proceeding is not compellable,
2. Judges,
3. the sovereign,
4. governor general and sovereign or head of state of a foreign country are not compellable

Question 8

(a) Define the term ‘corroboration’

(b) List two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction.

Answer 8

(a) independent evidence that tends to confirm or support some other fact.

(b)
1. Perjury
2. false oaths,
3. false statements or declarations
4. treason

Question 9

What must the Judge inform witnesses UNDER 12 years old?

Answer 9

Tell the child they will be:

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

Question 10

Once the judge has granted an application to treat a witness as hostile, what 3 things can be asked/done?

Answer 10

1. Asked leading questions,
2. Questioned as to prior inconsistent statements,
3. Tested on matters such as the accuracy of his/her memory and perception

Question 11

Explain the two purposes of cross-examination.

Answer 11

1. To elicit information supporting the case of the party conducting the cross-examination.
2. to challenge the accuracy of the testimony given in evidence-in-chief

Question 12

s8 EA06:
Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will do one of two things?

Answer 12

1. Have an unfairly prejudicial effect on the proceeding, OR

2. needlessly prolong the proceeding.

Question 13

What did the Court in R v Wanhalla suggest the jury be told in relation to reasonable doubt?

Answer 13

That reasonable doubt is 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 14

The Court has discretion to include propensity evidence against a defendant if…?

Answer 14

The probative value of the evidence outweighs its prejudicial effect.

Question 15

List the matters that the exclusive rules of evidence deal with.

Answer 15

1. Veracity
2. Propensity
3. Hearsay
4. Opinion
5. Identification
6. Improperly obtained evidence

Question 16

When is a witness eligible to give evidence?

s71 EA06. Eligibility and Compellability generally?

Are all eligible witness compellable to give evidence?

**who is not compellable?

Answer 16

When they are lawfully able to give evidence on behalf of both the prosecution and defence.

s71 EA06

(1) In civil and criminal proceeding -
(a) any person is eligible to give evidence, AND
(b) any person who is eligible is compellable to give that
evidence.
(2) ss(1) subject to s72-75

s72:

• judges are not eligible
• jurors need judges permission
• counsel not eligible unless defendant representing themselves

s73:

(1) Defendant not compellable
(2) Associate defendant not compellable unless
(a) associate being tried separately, OR
(b) associate’s proceeding been determined

Question 17

What does unavailable as a witness mean?

Answer 17

• Dead, or
• is outside NZ and is not reasonably practicable for him or her to be a witness,
• or unfit due to age or physical or mental condition,
• or cannot with reasonable diligence be identified or found,
• or not compellable to give evidence

Question 18

Where the onus of proof is reversed and the defence is required to prove an element, to what standard must it proved?

Answer 18

On the balance of probabilities. Which means they must show that it is more probable than not.

If the probabilities are equal, then burden is not discharged

Question 19

Define ‘Hostile Witness’

Answer 19

s4 EA06:
1. 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, or
2. gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits or
appears to exhibit an intention to be unhelpful to the party who called the witness, or
3. refuses to answer questions or deliberately withholds evidence

Question 20

What is a leading question?

Answer 20

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

Question 21

s15 EA06?

Answer 21

s15 EA06
voir dire: evidence given by witness to prove facts needed to decide if some other evidence should be admitted.

Facts determined sometimes referred to as preliminary facts.

Question 22

(a) Describe what privilege is in relation to the giving of evidence.
(b) What are the categories of privilege?

Answer 22

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

(b)

1. communications with legal advisors (s54)
2. solicitors trust accounts (s55)
3. preparatory materials for proceedings (s56)
4. settlement negotiations or mediation (s57)
5. communications with ministers of religion (s58)
6. information obtained by medical practitioners and clinic psychologists (s59)
7. privilege against self incrimination (s60)
8. informer privilege (s64)

Question 23

What may a witness use to refresh their memory before giving evidence in Court?

Answer 23

Their original statement or deposition statement or officer who interviewed them.

Requirement is simply that the documents are within the the witnesses own knowledge.

**what is a deposition statement

Question 24

When a judge is presiding over a trial by jury he/she must:

Answer 24

1. DECIDE all questions about the admissibility of evidence.
2. INSTRUCT the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
3. Explain and Enforce the general principles of law applying to the point at issue.

Question 25

Once the judge has granted an application to treat a witness as hostile, what may be asked/done?

Answer 25

1. Asked leading questions,
2. Questioned as to prior inconsistent statements,
3. Tested on matters such as the accuracy of his/her memory and perception

Question 26

What is the meaning of veracity?

Answer 26

A disposition of a person to tell the truth, whether generally of in a proceeding

Question 27

When is a previous statement made by a witness admissible?

Answer 27

Previous statement is admissible to the extent it needed to respond to a challenge to their veracity or accuracy, based on:
1. a previous inconsistent statement or a claim of recent invention on the part of the witness.

Question 28

What is propensity evidence?

Answer 28

Evidence that shows a person tends to:
- act in a particular way, OR
- have a particular state of mind,
AND is evidence of acts/omissions/events/circumstances with which a person is alleged to have been involved.

It does not include evidence of an act or omission that is:

1. one of the elements of the offence for which the person is being tried, OR
2. the cause of the action in the proceeding in question.

Question 29

s125(1) EA06. (Corroboration warnings)

Answer 29

s125(1) EA06:
In a criminal proceeding in which the complainant is a child at the time of proceeding, the Judge must NOT give any warning to the Jury about the absence of corroboration of their evidence if the Judge would not have given that kind of warning had the complainant been an adult.

Question 30

What is a witness?

Answer 30

A person who gives evidence and is able to be cross-examined.

Includes a person has, is or will give evidence.

Question 31

What is the DPP v Woolmington principle?

Answer 31

The presumption of innocence.

Subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all elements of the offence

Question 32

Give examples of offences in which the burden of proof is shifted to the defence?

Answer 32

1. Insanity - s23(1) CA61
2. Sex with a young person where person took reasonable steps to find out if person over 16 years old - s134A CA61
3. Lack of intention use offensive weapon to commit an offence involving bodily injury - s202A CA61
4. offence is a public welfare regulatory offence

Question 33

Unfavourable vs Hostile witness

Answer 33

Memory loss or inconsistent evidence, by itself does not justify a witness being found hostile.

Question 34

What is a Judge’s role in trial by jury?

Answer 34

1. decide all questions concerning the admissibility of evidence.
2. explain and enforce the general principles of law applying to 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 35

What determines whether evidence is relevant?

Answer 35

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

Question 36

What is the purpose of EA06?

Answer 36

To help secure the just determination of proceedings by:

1. PROVIDING for facts to be ESTABLISHED by logical rules, and
2. PROVIDING rules of evidence that recognise the importance of the rights in NZBORA90
3. PROTECTING the rights of confidentiality and other important public interests.
4. PROMOTING fairness to parties and witnesses.
5. AVOIDING unjustifiable expense and delay.
6. ENHANCING access to the law of evidence.

Question 37

A. Define Hearsay. Source?

B. define statement.

Answer 37

A. s4 EA06:
hearsay statement means a statement that—
(a) was made by a person other than a witness; AND
(b) is offered in evidence at the proceeding to prove the truth of its contents

B. s4 EA 06
A spoken or written assertion by a person or nonverbal conduct of a person intended by that person as an assertion of any matter.

Question 38

When may the prosecution offer veracity evidence?

Answer 38

1. The defendant has offered evidence about his veracity or the defence has challenged the veracity of a prosecution witness by reference other than the facts in issue, AND
2. The judge permits the prosecution to do so.

Question 39

Define expert

Answer 39

s4 EA06

Person who has specialised knowledge or skill-based training, study or experience.

The expert is required to demonstrate to the Court that he is qualified to be an expert.

Question 40

s122(2) EA06. A judge must consider whether to give a warning whenever the following evidence is given…

Answer 40

1. hearsay
2. Defendant statement where that only evidence implicating him
3. Witness with a motive to give false evidence that is prejudicial to a defendant
4. Statement by the defendant to another person made while both the defendant and the other person were detained in prison, police station or another place of detention
5. Conduct of defendant if that conduct is alleged to have occurred more the 10 years ago

Question 41

s16(1) EA06. What are the circumstances that relate to a hearsay statement being reliable?

Answer 41

1. the NATURE of the statement
2. the CONTENTS
3. the CIRCUMSTANCES in which the statement was made
4. the VERACITY of the person
5. ACCURACY of the observations of the person

Question 42

Explain the 2 prongs of relevance

Answer 42

1. Materiality -

2. Probativeness -

Question 43

(a) ‘Facts that prove the charge’
(b) ‘Facts in issue’
(c) ‘Circumstantial Evidence’
(d) Direct evidence

Answer 43

(a) Evidence should consist of facts that prove the elements of the charge.
(b) The facts which the prosecution must prove to succeed with the charge.
(c) Offers indirect proof of a fact in issue.
(d) Evidence by a witness as to a fact in issue that they have seen, heard or experienced.

Question 44

(a) What is the ‘General rule of evidence?’

(b) What exceptions to the general rule?

Answer 44

(a) All facts in issue and facts relevant to the issue must be proved by evidence
(b) Judicial notice is taken OR facts are formally admitted

Question 45

What are the three ways of giving evidence?

Answer 45

1. Ordinary way - in presence of judge/jury/counsel, public or reading a statement in court
2. Alernative way - inside court room but behind a screen OR by video from outside the court room.
3. Any other way - provided for by the EA06 or any other enactment

Question 46

s41 EA06: Defendant propensity evidence

Answer 46

(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).

Question 47

s43 EA06: Prosecution propensity evidence

Answer 47

(1) Prosecution propensity evidence - only if its probative value outweighs its prejudicial effect.
(2) When assessing the probative value, the Judge MUST take into account the NATURE of the issue in dispute.
(3) When assessing the probative value, the Judge MAY consider:

(a) FREQUENCY of acts/omissions/events/circumstances
that subject of the evidence

(b) CONNECTION in time between
acts/omissions/circumstances/events which subject of the
evidence and ones being tried currently.

(c) SIMILARITY between
acts/omissions/circumstances/events which subject of the
evidence and ones being tried currently.

(d) NUMBER PERSONS making allegations against the
defendant that are the same as, or are similar to, the
subject of the offence for which the defendant is being
tried.

(e) whether the allegations described in paragraph (d)
may be the result of COLLUSION or SUGGESTIBILITY.

(f) How UNUSUAL are the
acts/events/circumstances/omissions that constitute the
evidence?

(4) When assessing prejudicial effect Judge MUST consider:
(a) is evidence likely unfairly predispose the fact-finder
against the defendant, AND

(b) will fact-finder will tend to give disproportionate weight
to the evidence.

Question 48

What judicial warnings may be given to a jury?

Answer 48

1. Warnings that evidence may be UNRELIABLE. (s122)
2. Direction about certain WAYS OF GIVING evidence. (s123)
3. Warning about LIES. (s124)
4. Direction about CHILDREN’S evidence. (s125)
5. Warning about ID evidence. (s126)
6. Delayed complaints or failure to complain in SEX cases. (s127)

Question 49

s17 EA06. Hearsay rule.

Answer 49

17 Hearsay rule
A hearsay statement is not admissible except—
(a) as provided by this subpart or by the provisions of any other Act; or (b)
in cases where—
(i) this Act provides that this subpart does not apply; and
(ii) the hearsay statement is relevant and not otherwise inadmissible under this Act.

Question 50

s18 EA06. Hearsay exception

Answer 50

s18 EA06:
(1) A hearsay statement is admissible if:

(a) the circumstances relating to the statement provide
reasonable assurance that the statement is reliable;
AND
(b) either— (i) the maker of the statement is unavailable
as a witness; OR
(ii) the Judge considers that undue expense
or delay would be caused if the maker of the
statement were required to be a witness.
(2) This section is subject to sections 20 and 22.

Question 51

Define ‘Self-incrimination’

Answer 51

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 52

s92 EA06. What is the duty to put case in relation to cross-examination?

Answer 52

If intend to call evidence that will contradict the evidence-in-chief of a witness called by the opposing party there is an obligation to put that contradictory material to the witness during cross-examination, so they have chance to comment or explain it. Little to no weight will be put on evidence otherwise. The opposing party may recall their witness if this is does not happen.