EVIDENCE

Question 1

Define “Facts in issue”

Answer 1

facts in issue are those which:
the prosecution must prove to establish the elements of the offence
the defendant must prove to succeed with a defence in respect of which they carry the burden of proof

Question 2

Define “Statment”

Answer 2

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

Question 3

Define “witness”

Answer 3

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

Question 4

Define “Hearsay statment”

Answer 4

a statement that was made by a person other than the witness and is offered in evidence in the proceeding to prove the truth of its contents.

Question 5

Define “veracity”

Answer 5

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

Question 6

Define “propensity”

Answer 6

evidence about a persons 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 aledged to have been involved

Question 7

Define direct and circumstantial evidence

Answer 7

Direct; evidence given by a witness as to a fact in issue that he or she has seen heard or otherwise experienced.
Circumstantial: the 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 (eg the defendant was seen in the vicinity of the scene of a crime)

Question 8

What is the woolmington principal

Answer 8

the fundamental principal in criminal law is the presumption of innocence known as the woolmington principal. the principal establishes that subject to any statutory exception the burden of proof lies clearly with the prosecution in relation to all elements of the offence.

Question 9

What are the exceptions to the Woolmington principal?

Answer 9

the most common example is the defence of insanity.
where other statutory exceptions exist, and
where the evidence places the burden of proving a particular issue on one party in relation to the admissibility of evidence.

Question 10

Define “reasonable doubt” as stated in R v WANHALLA

Answer 10

A reasonable doubt is a “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 11

Describe the two standard of proofs

Answer 11

the standard of proof where the legal burden is on the prosecution is BYD, where the defence bears the burden it need only be proved on the balance of probabilities.

Question 12

What is circumstantial evidence

Answer 12

circumstantial evidence is a fact from which a fact the judge or jury may infer the existence of a fact in issue. As such it offers indirect proof of a fact in issue, as more circumstances lead to the inference the chain of circumstantial evidence becomes stronger to the point where the pieces of circumstantial evidence viewed as a whole are sufficient to prove guilt.

Question 13

What is a presumption of law and a presumption of fact?

Answer 13

Presumptions of law are inferences that have ben expressly drawn by law from particular facts they may be either conclusive (irrebuttable) o rebuttable. eg a conclusive and irrebuttable presumption is that a child under 10 is not able to b convicted o a crime.
Presumptions of law are those that the mind naturally and logically draws from the given facts. (simply logical inferences and so are always rebuttable)

Question 14

What are the four principals of admissability?

Answer 14

Relevance
Reliability
Unfairness
Public interest

Question 15

What is the definition of relevant evidence

Answer 15

Relevant evidence is any evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceedings it includes direct and circumstantial evidence.

Question 16

What is the s.8 test for testing the admissibility of evidence

Answer 16

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

Question 17

Explain a Voir Dire

Answer 17

s.15 EA06: evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. (facts determined at a VD are referred to as preliminary facts)

Question 18

When is evidence given at a Voir Dire admissable

Answer 18

only if the evidence given by the witness at the VD is inconsistent with the witness’ subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency.

Question 19

What does a propensity evidence mean?

Answer 19

means evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances in which a person is alleged to have been involved. BUT
(b) does not include (1) evidence of one of the elements of the offence for which the person is being tried OR (2) the cause of action in the proceeding in question.

Question 20

what is the definition of a hearsay statment

Answer 20

A statment that

(a) was made by a person other than the witness AND
(b) is offered in evidence at the proceeding to prove the truth of its contents

Question 21

What are the s.18 two criteria for determining the admissibility of hearsay evidence

Answer 21

A hearsay statment is admissible if

(a) the circumstances relating to the statment provide reasonable assurance that the statment is reliable AN
(b) either (1) the maker of the statment is unavailable as a witness OR (2) the judge considers that undue expense or delay would be caused if the maker of the statment were required to be a witness

Question 22

What is the rationale or reasons against hearsay evidence

Answer 22

no opportunity to cross-examine the witness regarding the contents of the statment, the circumstances in which it was made and so on.
the concern that that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statment
the danger that witnesses will make mistakes about the meaning or contents of statment made by other people. the game of Chinese whispers where inaccuracies and mistakes are crated through the repetition of a phrase amongst a group of people is illustrative of this point.

Question 23

In addition to the requirement of reliability a hearsay statment will only be admissible where the make of the statment is unavailable or undue expense or delay would be caused by requiring that person to be a witness, define “unavailable as a witness”

Answer 23

Dead OR
outside NZ and not reasonable practical for them to be a witness OR
Unfit to be a witness sue to age, or physical/mental conditions OR
Cannot with reasonable diligence be identified or found OR
Is not compellable to give evidence (eg a sovereign and the defendant in their own case)

Question 24

When is a witness able to give non expert opinion evidence and what is the criteria for admissibility

Answer 24

If it is necessary to enable the witness to communicate or the fact finder to understand what the witness saw, heard or otherwise perceived.
topics may include; identity, speed, emotional state, weather, age and so on

the statment of opinion must fulfil two basic criteria;
(1) opinion must be the only way in which to effectively communicate the information to the fact finder. (2) the witness must be stating an opinion (be it a conclusion or inference) from something personally perceived.

Question 25

What are the requirements for the conduct of expert witnesses

Answer 25

1) must state his or her qualification
2) the reasons for opinions must be stated explicitly
3) the facts, matters and assumptions on which opinions are expressed must be stated explicitly
4) Any literature or other material used or relied on to support opinions must be referred to by the expert
5) Must not give expert evidence outside his her area of expertise
6) if the expert believes his evidence may be incomplete or inaccurate without some sort of qualification that qualification must be stated.
7) an expert has an overriding duty to assist the court impartially on relevant matters within the experts area of expertise
8) the expert is not an advocate for any party

Question 26

When is a witness eligible and then when is a witness compellable to give evidence

Answer 26

A witness is eligible if thy are lawfully able to give evidence on behalf of both the prosecution and defence.
A witness is compellable if they can be required to give evidence against their will for both the prosecution and defence.
Once a witness has entered the witness stand they have a compellable obligation to answer all questions put to them

Question 27

What are the exceptions to the general proposition on witness eligibility and compellibility

Answer 27

As a general proposition all people are eligible and compellable to give evidence, the exceptions are;
a person acting as a judge in a proceeding is not eligible to give evidence in that proceeding.
Unless with the judges permission a person acting as a juror or counsel is ineligible to give evidence in that proceeding
Defendants and associated defendants

Question 28

What is the definition of an ASSOCIATED DEFENDANT in relation to eligibility and compatibility to give evidence

Answer 28

someone against whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried OR that relates to or is connected with the offence for which the defendant is being tried.

Question 29

When is an associated defendant compellable and when are they not

Answer 29

Whey the associated defendant is actually a co-defendant in the same trial they are not compellable. When they are being tried separately or where the proceeding against the associated defendant has been determined then they are compellable for both prosecution and defence.

Question 30

In relation to associated defendants and compellibility what is the definition of a proceeding that has ben DETERMINED

Answer 30

Stayed, withdrawn, dismissed, acquitted OR having pled or been found guilty has been sentenced or otherwise dealt with for that offence.

Question 31

List the categories or types of privilege

Answer 31

communications with legal advisors
solicitors trust accounts
preparatory materials for proceedings
settlement negotiations or mediation
communication with ministers of religion information obtained by medical practitioners or clinical psychologists.

Question 32

Explain privilege in relation to medical practitioners and clinical psychologists in relation to criminal proccedings

Answer 32

privilege applies to any person who consults Medical practitioner or clinical psychologist for the purpose of drug dependancy or any other conditions that may manifest itself in criminal conduct.

Does not extend if person has been required to submit them-self to examination or test for any purpose.

Does not extend to disclosures made by a person representative to a practitioner the disclosures must be made personally and does not extend to statements or information made during treatment as a result of a persons unlawful conduct.

Question 33

explain the conditions for privilege against self incrimination

Answer 33

one person cannot claim privilege on behalf of another except for a legal adviser asserting privilege on behalf of a client.
Privilege can only be asserted for natural persons and does not extend to body body corporates.
A defendant cannot assert privilege when giving evidence about the matter for which they are being tried.

Question 34

What are the two types of offences where corroboration is required

Answer 34

Corroboration is required as a matter of law for perjury an related offences (false oaths, false statements and treason)

Question 35

What is the judges role in trial by jury

Answer 35

. Decide all questions concerning the admissibility of evidence
. explain and enforce the general principals of law applying to the point at issue
. instruct the jury on rules of law by which the evidence is to be weighed once it has been submitted.

Question 36

Describe the requirement around oats and affirmations for people of different ages

Answer 36

Witnesses 12 and over 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, AND
. after being given that information, make a promise to tell the truth before giving evidence.

Question 37

What is a leading question

Answer 37

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

the general rule is that they are not to b asked in evidence in chief or cross examination.

Question 38

What are the reasons for not permitting leading questions

Answer 38

. 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 witness.