Evidence

Question 1

Define: Evidence

Answer 1

“Evidence” is the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.

Evidence may be in oral, written or visual form.

Question 2

Define: Admissible evidence

Answer 2

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

Question 3

Define: Relevance

Answer 3

Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (s7(3)of the Evidence Act 2006).

Question 4

Define: Facts in issue

Answer 4

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.

Question 5

Define: Exclusionary rules

Answer 5

These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).

Question 6

Define: Weight of evidence

Answer 6

The “weight” of evidence is its value in relation to the facts in issue. The value will depend on a wide range of factors, such as:
• 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.

Question 7

Define: Offer Evidence

Answer 7

Evidence must be elicited before it is “offered”: Merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition – s96(1) of the Evidence Act 2006.

Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross-examination of a witness called by another party.

Question 8

Define: Give Evidence

Answer 8

“Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence.

Question 9

Define Incriminate

Answer 9

To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.

Question 10

Define: Proceeding

Answer 10

This means a proceeding conducted by a court, and any application to a court connected with a proceeding.

Question 11

Define: Statement

Answer 11

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

Question 12

Define: Witness

Answer 12

This is a person who gives evidence and is able to be cross-examined in a proceeding.

Question 13

Define: Hearsay statement

Answer 13

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.

Question 14

Define: Veracity

Answer 14

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

Question 15

Define: Propensity

Answer 15

Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.

Question 16

Define: Direct evidence

Answer 16

This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife).

Question 17

Define: Circumstantial evidence

Answer 17

This is 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. the defendant was seen in the vicinity of the scene of the crime).

Question 18

Define: Enforcement agency

Answer 18

This refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department.

Question 19

What is the Woolmington Principle?

Answer 19

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

Question 20

Name one exception to the Woolmington principle

Answer 20

s202A(4)(b) Crimes Act 1961: Possession of an Offensive Weapon shifts the burden of proof to the defendant in regard to the intent.

Question 21

What does R v Wanhalla say about proof beyond reasonable doubt?

Answer 21

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.

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 of the evidence.

Question 22

Define: Balance of probabilities

Answer 22

More probable than not. If the probabilities are equal, the burden is not discharged.

Question 23

What are the six purposes of the Evidence Act 2006?

Answer 23

(a) providing for facts to be established by the application of logical rules;
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990;
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests;
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.

Question 24

Define: Facts in issue

Answer 24

The facts which in law need to be proven to succeed with the case. In criminal cases, the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.

Question 25

Define: Facts relevant to the facts in issue

Answer 25

Facts relevant to the facts in issue tend to prove or disprove a fact in issue.

Question 26

What is the section 7 test for relevance?

include the definition of relevance evidence

Answer 26

(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.

Question 27

List the two exceptions to the rule that evidence must be produced in support of a fact.

Answer 27

1. Where judicial notice is taken.

2. The facts are formally admitted.

Question 28

What are uncontroverted facts under s128 EA06?

Answer 28

Facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.

Question 29

What does s129 EA06 say about admission of reliable published documents?

Answer 29

A Judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.

Question 30

Define: Presumption of law and list the two categories.

Answer 30

Presumptions of law are inferences that have been expressly drawn by law from particular facts. (e.g. innocent until proven guilty)

They may be rebuttable or irrebuttable.

Question 31

Define: Presumption of Fact

Answer 31

Presumptions of fact are those that the mind naturally and logically draws from the given facts.

Question 32

What is the s8 EA06 test?

Answer 32

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

Question 33

Define: Voir Dire

Answer 33

Section 15:

A hearing where the jury is excluded and evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Question 34

Define: Preliminary Evidence (with reference to s14 EA06)

Answer 34

Where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.

Question 35

What are the exclusionary rules of evidence?

Answer 35

Hearsay
Propensity
Veracity
Opinion
Identification
Improperly Obtained Evidence

Question 36

What is the general rule regarding veracity?

Answer 36

A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.

Question 37

When can the prosecution offer evidence of the defendant’s veracity?

Answer 37

Section 38(1):

(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and
(b) the Judge permits the prosecution to do so.

Question 38

When can the prosecution offer propensity evidence about the defendants?

Answer 38

Section 41:

(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.

Question 39

What factors must the judge consider when making a determination whether to allow propensity evidence about a defendant?

Answer 39

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of 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) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances w

Question 40

What is the test for allowing propensity evidence?

Answer 40

Whether the evidence has a 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 41

What is the general rule regarding hearsay?

Answer 41

Section 17:

Hearsay is inadmissible except where specifically provided for in legislation.

Question 42

When can hearsay statements be admissible?

Answer 42

Section 18:

If it is reliable and either:

• The maker of the statement is unavailable as a witness, or
• There would be undue expense or delay if the statement maker is to be required as a witness.

Question 43

Under section 16(1) Evidence Act 2006 what circumstance will a judge consider when making a decision about the reliability of a hearsay statement?

Answer 43

(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person

Question 44

Under s16(2) what is meant by ‘unavailable as a witness’ in respect of hearsay evidence?

Answer 44

(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.

Question 45

What is the general rule regarding opinion evidence?

Answer 45

It is inadmissible except as provided for in s24 or s25.

Question 46

What does section 24 say about the admissibility of opinion evidence?

Answer 46

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Question 47

What does section 25 say about the admissibility of opinion evidence?

Answer 47

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

Question 48

Define: Expert witness

Answer 48

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

The judge must determine whether the expert witness is properly qualified to testify:

Question 49

What does R v Hutton say about the conduct of expert witnesses?

Answer 49

• an expert must state his or her qualifications when giving evidence
• the facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
• any literature or other material used or relied on to support opinions must be referred to by the expert
• the expert must not give opinion evidence outside his or her area of expertise
• if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
• an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
• an expert is not an advocate for any party.

Question 50

Under section 71 who is eligible and compellable to give evidence in a proceeding?

Answer 50

(1) In a civil or criminal proceeding, -
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.

Question 51

Who is not compellable to give evidence in a proceeding?

Answer 51

s72 - Judges, jurors and counsel.

s73 - Defendants and associated defendants.

s74 - The sovereign, Governor-General and head of state of a foreign country.

Question 52

Outline the types of communication that may be subject to privilege

Answer 52

• communications with legal advisors – section 54
• solicitors’ trust accounts – section 55
• preparatory materials for proceedings – section 56
• settlement negotiations or mediation – section 57
• communications with ministers of religion – section 58
• information obtained by medical practitioners and clinical psychologists – section 59.
• Privilege against self-incrimination.

Question 53

What is the rule regarding the privilege against self-incrimination?

Answer 53

A person who is required to provide information has privilege in respect of that information if it would be likely to incriminate them for an offence punishable by a fine or imprisonment.

Question 54

What information is subject to confidentiality?

Answer 54

Jury deliberations,

Protection of journalists’ sources

Question 55

What does s69 say about the disclosure of confidential information?

Answer 55

Section 69 allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.

Question 56

Define: Corroboration

Answer 56

It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.

Question 57

Which offences require corroborating evidence?

Answer 57

(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).

Question 58

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

Answer 58

• 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 by which the evidence is to be weighed once it has been submitted.

Question 59

Instead of making an oath or affirmation, what is the process with witnesses under 12?

Answer 59

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

Question 60

What is the sequence of a jury trial?

Answer 60

1. Jury empanelled.
2. Crown opening address
   (usual practice for the defence to make remarks at this point)
3. Crown case
4. Defence opening
5. Defence case
6. Crown closing
7. Defence closing
8. Judge sums up

Question 61

What does s33 say about the defendant’s right to silence?

Answer 61

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

Question 62

Define: Leading question

Answer 62

One that directly or indirectly suggests a particular answer to the question

Question 63

Why can leading questions be dangerous?

Answer 63

There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.

• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

Question 64

Under section 89, when are leading questions allowed in evidence in chief?

Answer 64

(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question.

Question 65

When can a witness refer to a document in court to refresh their memory?

Answer 65

• the leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• s90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”.

Question 66

What is the general rule in s35 about previous consistent statements?

Answer 66

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.

Question 67

Define: Hostile witness

Answer 67

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

• 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
• refuses to answer questions or deliberately withholds evidence.

Question 68

What is the purpose of cross-examination?

Answer 68

• 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 (for example, by casting doubt on

Question 69

What are unacceptable questions?

Answer 69

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.

Question 70

What is the general rule in s96(1) about prior inconsistent statements?

Answer 70

(1) A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.

Question 71

When can a witness be called to give evidence in rebuttal?

Answer 71

Requires the leave of the court. Must show the evidence:
• relates to a purely formal matter
• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
• was not available or admissible before the prosecution’s case was closed, or
• is required to be admitted in the interests of justice for any other reason.

Question 72

What are the different types of warnings the judge may give under the Act?

Answer 72

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

Question 73

Under s122 the judge must consider a warning when dealing with what evidence?

Answer 73

(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 74

When giving a warning about lies, what advice should be included in the direction?

Answer 74

• the jury needs to be satisfied that the defendant did lie before they use the evidence,
• people lie for various reasons, and
• the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.

Question 75

What is prohibited in s125 in regard to directions about children’s evidence?

Answer 75

• the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
• any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.