Evidence Flashcards
Evidence
The whole body of material which a court or tribunal may take into account in reaching their decision
Oral, written or visual form
Relevance
Evidence is relevant if it has a tendency to prove or disprove anything that is if consequence to the determination of a proceeding
Facts in issue
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
Weight of evidence
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
Probative value
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
Prejudicial
Evidence adverse to a party’s case; the drawing of an inference against a party
8 of evidence act excludes unfair prejudice
Child complainant
When under 18 when proceedings commence. This is when charging doc is filed not at beginning of trial
Hearsay statement
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
Veracity
The disposition of a person to refrain from lying
Propensity
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
Section 6 - purpose of evidence
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
Section 7 - fundamental principle that relevant evidence admissible
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
Section 8 - general exclusion
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
Section 9 - admission by agreement
Allows to be admissible when otherwise not if the parties agree
Judge can still decline to ensure fair trial
Woolmington Principle
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
Evidential burden
When burden of proof is disrupted by a live issue and it is then up to the prosecution to retain the burden of proof
Standard of proof
Beyond read doubt of prosecution
Balance of probabilities for defence
Beyond reasonable doubt
High standard of proof, at end you are sure accused is guilty
Probably or likely not enough
Balance of probabilities
Such as insanity when defence have burden of proof, must simply show that it is more probable
Oaths and affirmation
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.
84 - examination of witness
A witness first gives evidence in chief and after, may be cross examined and after all have done so, may be re-examined
To be able to consult a document to refresh memory as a witness, must
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
Hostile witness
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
Initial disclosure
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
Further that can be disclosed
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
When full disclosure
ASAP after had pleaded not guilty or at first appearance if child or young person
What can be withheld in disclosure 15-18
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
79 - Support Persons
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
Communication Assistance
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
103- alternative way of giving evidence
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
72- judges, jurors and counsel
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
73- compellability of defendants and associated defendants in criminal proceedings
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
Associated defendant
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
Privilege
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
41- propensity about defendants
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
42- propensity about codefendants
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
43- propensity offers by prosecution about defendants
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
44- evidence of sexual experience in sexual cases
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
Unavailable as witness reasons for hearsay
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
Hearsay notice
In writing
Copy of statement if in writing
Sufficient time before hearing to provide all other parties with fair opportunity to respond
Admissibility or visual identification evidence
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
Good reasons for no formal procedure
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
Admissibility of voice identification evidence
Inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the ID was made have produced reliable identification
