Evidence

Question 1

Evidence

Answer 1

The whole body of material which a court or tribunal may take into account in reaching their decision

Oral, written or visual form

Question 2

Relevance

Answer 2

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

Question 3

Facts in issue

Answer 3

Those which the prosecution must prove in order to establish the elements of the offence or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof

Question 4

Weight of evidence

Answer 4

Is it’s value in relation to the facts in issue

Depends on wide range of factors relevance, the extent to which it is supported or contradicted etc

The “weight” is the degree of probative value that can be accorded to the evidence

Question 5

Probative value

Answer 5

How strongly evidence points to the inference it is said to support and how important the evidence is to the issues in the trial, will determine the level of probative value that a piece of evidence holds

Question 6

Prejudicial

Answer 6

Evidence adverse to a party’s case; the drawing of an inference against a party

8 of evidence act excludes unfair prejudice

Question 7

Child complainant

Answer 7

When under 18 when proceedings commence. This is when charging doc is filed not at beginning of trial

Question 8

Hearsay statement

Answer 8

Statement that was made by a person other than a witness and if offered in evidence in the proceedings to prove the truth of its content

Exception (18)
Admissible if circumstances provide reasonable assurance the statement is reliable and either maker is unavailable or undue expense or delay

Question 9

Veracity

Answer 9

The disposition of a person to refrain from lying

Question 10

Propensity

Answer 10

A persons tendency to act in a particular way or have a particular state of mind

General rule is that a party may offer it about any person with some restrictions under 41-43 and in sexual cases about their sexual experience under 44

Section 7 relevance and section 8 general exclusion still apply

Question 11

Section 6 - purpose of evidence

Answer 11

Purpose of the act to help secure the just determination of proceedings by

Providing of facts with logical rules

Providing rules of evidence to support BOR

Fairness to parties and witnesses

Protecting rights of confidentiality and other important public interests

Avoiding unjustifiable expense and delay

Enhancing access to the law of evidence

Question 12

Section 7 - fundamental principle that relevant evidence admissible

Answer 12

All relevant evidence admissible except if inadmissible under this act or another or excluded under this act or another

Evidence that is not relevant is not admissible

Evidence is relevant if has tendency to prove or disprove anything that is consequence to the determination of the proceeding

Question 13

Section 8 - general exclusion

Answer 13

In any proceeding the judge must exclude evidence of its probative value is out weighted by the risk the evidence will have an unfair prejudicial effect or needlessly prolong the proceedings

Judge must take in to account the right of the defendant to offer an effective defence

Question 14

Section 9 - admission by agreement

Answer 14

Allows to be admissible when otherwise not if the parties agree

Judge can still decline to ensure fair trial

Question 15

Woolmington Principle

Answer 15

Establishes that, 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 16

Evidential burden

Answer 16

When burden of proof is disrupted by a live issue and it is then up to the prosecution to retain the burden of proof

Question 17

Standard of proof

Answer 17

Beyond read doubt of prosecution

Balance of probabilities for defence

Question 18

Beyond reasonable doubt

Answer 18

High standard of proof, at end you are sure accused is guilty

Probably or likely not enough

Question 19

Balance of probabilities

Answer 19

Such as insanity when defence have burden of proof, must simply show that it is more probable

Question 20

Oaths and affirmation

Answer 20

12 of over must take one

If under, told by judge to tell true the and no lies and then they must give promise to tell the truth after

77 allows for neither oath or affirmation with judge permission. Then same judge comment as under 12.

Question 21

84 - examination of witness

Answer 21

A witness first gives evidence in chief and after, may be cross examined and after all have done so, may be re-examined

Question 22

To be able to consult a document to refresh memory as a witness, must

Answer 22

Have leave of the judge

Must be shown to every other party in the proceeding

Must have been made or adopted at a time when memory was fresh (rongonui v r upheld when 6 weeks after)

Made by witness or person acting in their behalf in his presence and assented to by the witness

Question 23

Hostile witness

Answer 23

If active hostilities towards party calling, leave may be sought to declare them hostile. If granted, can be asked questions in manner of cross examination. May include leading questions

Question 24

Initial disclosure

Answer 24

SOF
Charge doc
Summary of the defendant right to apply for further info before entering plea 
The max or min penalty 
List of precious known convictions 
Proved offence subject to 284(1) OT

No later than 15 days after commencement of proceedings

Question 25

Further that can be disclosed

Answer 25

Name of witnesses to be called
Exhibits proposed to be produced
Defendant interviews
Relevant prosecution witness interviews 
Job sheets 
Diagrams or photos made or taken 
Cooffender statement if proceeded against together 
List of anything refused to be disclosed and the reason

Question 26

When full disclosure

Answer 26

ASAP after had pleaded not guilty or at first appearance if child or young person

Question 27

What can be withheld in disclosure 15-18

Answer 27

If the prosecutor does not hold the info in recorded form or is not in possession or control of it

Disclosure would likely prejudice the maintenance of the law

Disclosure is likely to endanger safety of any person

Material prepared to assist in the conduct of the trial

Communication between prosecutor and another person in relation to matters relating to the conduct of prosecution of same employer

Prejudice security or defence of NZ

Facilitate commission of offence

Public info or previously made available

Info we witness identification or informant address

Trade secret or prejudice commercial position of supplier

Question 28

79 - Support Persons

Answer 28

Complainant and child witness- Entitled to have 1 person, more than with 1 with judge permission, near to give support

Witness may have 1 or more with judge permission

Whether giving evidence normal way or in alternative

Judge can in interest of justice direct any of above do not have support person

Disclose name of support person ASAP

Question 29

Communication Assistance

Answer 29

Defendant given in to understand proceedings as well enable to give evidence

Witnesses only to enable them to give evidence. They do not need to understand proceedings

Question 30

103- alternative way of giving evidence

Answer 30

Grounds of:
Age/maturity
Physical, intellectual, psychological, or psychiatric impairment 
Trauma suffered 
Linguistic or cultural background 
Nature of proceedings 
Nature of evidence to be given 
Relationship to any party in proceedings 

Also judge to consider:
Ensure fairness of trial 
Witness views 
To minimise stress on witness 
Promote recovery of complainant 
Other relevant factors

Question 31

72- judges, jurors and counsel

Answer 31

Judge not eligible to give evidence in that proceeding

Juror or counsel also ineligible unless judge permission. Juror would then be discharged and would proceed with 11

Question 32

73- compellability of defendants and associated defendants in criminal proceedings

Answer 32

Defendant not a compellable witness

Nor is an associated defendant unless being tried separately or proceedings against them have been determined

Determined=
Proceeding stayed or charge withdrawn/dismissed or acquired or have guilty plea or finding, has been sentenced

Question 33

Associated defendant

Answer 33

Prosecution against for

Offence that arose in relation to the same events as did the offence for which defendant being prosecuted

An offence that relates to or connected with the offence for which the defendant is being prosecuted

Question 34

Privilege

Answer 34

Even when eligible to give evidence or chooses or is compelled, they may still be able to refuse or prevented on answering particular questions on grounds on privilege

Privileged evidence can arise from contents of evidence, the class of evidence or because of the nature of a particular relationship

Question 35

41- propensity about defendants

Answer 35

Allows for good propensity i.e “good character”

Johnston v r - criminal history of burg given to suggest burglary rather than rape for reason of being on property

Also allows neutral propensity evidence

Question 36

42- propensity about codefendants

Answer 36

Only allowed by defendant about codefendant if the evidence is relevant to a defence raised or proposed by the defendant and judge permits the defendant to do so

Question 37

43- propensity offers by prosecution about defendants

Answer 37

Only admissible where the evidence has a probative value in relation in relation to an issue in the proceedings which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Assessing probative:
Frequency of acts
How closely connected in time to current alleged offence
Similarities
Number of people make allegations against defendant
Whether allegations may be collusion
Similar unusual features

Question 38

44- evidence of sexual experience in sexual cases

Answer 38

Judge permission before any such questions about sexual experience with persons other than defendant

Judge must be satisfied of direct relevance or that excluding would be contrary to the interests of justice

Written application required

Question 39

Unavailable as witness reasons for hearsay

Answer 39

Dead
Outside NZ and not reasonably practical
Unfit due to age or physical or mental conditions
Cannot be found or identified with reasonable diligence
Not compellable

Question 40

Hearsay notice

Answer 40

In writing
Copy of statement if in writing
Sufficient time before hearing to provide all other parties with fair opportunity to respond

Question 41

Admissibility or visual identification evidence

Answer 41

If formal procedure followed, or good reason to not follow, admissible unless defendant proves on the balance of probabilities that the evidence is unreliable

If formal not followed and no good reason for not following, prosecution must prove beyond reasonable doubt that circumstances have produced a reliable identification act

Question 42

Good reasons for no formal procedure

Answer 42

Refusal by defendant

Appearance cannot be disguised so that similar to others

Substantial change in appearance since offence

Did not anticipate ID would be an issue

ID made in initial investigation

ID made after chance meeting

Question 43

Admissibility of voice identification evidence

Answer 43

Inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the ID was made have produced reliable identification