EVIDENCE Flashcards
Evidence
The fundamental principal in law is the “presumption of innocence” known as the what principal?
“Woolmington Principal”
Evidence
Prosecution holds the burden of proof when proving a case. Defence sometimes has to put up some form of argument eg (self defence)
What is this known as?
“Evidential burden” on the defence
Evidence
Name three exceptions where the defence hold the “burden of proof”?
(exceptions to the Woolmington Principal)
Insanity defence
Specific statutory expectations
Public welfare regulatory offences
Evidence
(standard of proof, juries are advised)
What was held in R v Wanhalla, defining “beyond reasonable doubt”?
Very high standard of proof
Only if you are sure the accused is guilty
It is not enough to say “probably or very likely guilty”
Evidence
The ‘balance of probabilities’ simply means…
It is more probable than not
Evidence
Corroboration of evidence
What are the two types of offences that need to be supported by other evidence to support a conviction? These must have corroborating evidence!
Perjury
Treason
Evidence
Does a Judge have to warn the jury for un corroborated evidence?
No…
Unless her believes that the evidence is unreliable
or
hearsay evidence
Prohibited if it is a child complainant and a warning would have been given to an adult
Evidence
Admissibility of visual identification evidence
If formal procedures are followed by police, or there is good reason for not following procedure, that evidence is admissible unless…. what??
The defendant proves on the balance of probabilities that the evidence is unreliable
Evidence
Admissibility of visual identification evidence
If formal procedures are NOT followed, and there was NO good reason for not following procedure, that evidence is inadmissible unless..
The prosecution proves beyond reasonable doubt that the circumstances in which the ID was made produced reliable identification
Evidence
Admissibility of visual identification evidence
ID procedures must be conducted by who?
Officers of enforcement agency (includes agencies other than Police)
Evidence
Admissibility of visual identification evidence
The visual ID procedure only applies to who?
People alleged to have committed an offence
Evidence
Admissibility of visual identification evidence
The combined effect of the ID procedure under 45(2) & (3) is intended to prevent what?
Dock identification
Evidence
Admissibility of visual identification evidence
The main focus under the act of visual ID evidence is on whether or not …??
The formal procedure was undertaken
Evidence
Admissibility of visual identification evidence
Can the OC be present
Yes but may not take part
Evidence
Admissibility of visual identification evidence
What level of police service is required to conduct the formal parade?
Sgt or Senior
Evidence
Admissibility of visual identification evidence
The guiding principals in AH Soon v R for formal ID procedures are …
to ensure that you avoid any material risk of predisposing the witness to the offender
Evidence
Admissibility of VOICE identification evidence
Sec 46 sets out sets out a general rule of inadmissibility around voice ID in court … what is it??
That voice ID is inadmissible unless the prosecution proves on balance of probabilities that circumstances which the ID was made has produced a reliable ID
Evidence
Exclusion of unreliable statements - sec 28
A judge must excuse unreliable statements unless…??
He is satisfied on the balance of probabilities, circumstances which the statement was made, not likely to adversely effect its reliability.
Evidence
Exclusion of unreliable statements - sec 28
Judge does not have to exclude a statement if it is offered by the prosecution to prove which two exceptions?
- To show the physical, mental or psychological condition of the defendant at the time the statement was taken
- evidence as to whether the statement was taken
Evidence
The oppression rule - sec 29
The judge must exclude the statement unless..
He is satisfied beyond reasonable doubt that the statement was not influenced by oppression
Evidence
The oppression rule - sec 29
Oppression means…
oppressive, violent, inhumane
degrading conduct or treatment or threats.
Evidence
The oppression rule - sec 29
Is it relevant if the statement by the Defendant is now true?
NO
Evidence
The oppression rule - sec 29
What will the judge take into account when he is deciding BRD if a statement was influenced by oppression??
Physical, mental, psychological condition of defendant
Nature manner and circumstances pf questions
Threat or promises made
Evidence
The oppression rule - sec 29
From who’s perspective is oppression judged?
The defendants
Evidence
Improperly obtained evidence - sec 30
If the judge finds that the evidence was improperly obtained.. what else must her determine?
Whether of not the exclusion of evidence is proportionate
Evidence
Improperly obtained evidence - sec 30
When is evidence improperly obtained?
When it Breaches the NZ BOR
Unfair
in consequence of a statement made by the defendant that is or would be inadmissible
Evidence
Improperly obtained evidence - sec 30
What was held in R v Te Kira in relation to .. “mere ‘but for’ causation is not sufficient…
That it is both necessary and sufficient to have “real and substantial” connection
Evidence
Improperly obtained evidence - sec 30
Under what threes rules can a defendants statement be excluded??
The reliability rule
oppression rule
improperly obtained evidence rule
Formal ID procedures
What are the 6 reasons for not following formal ID procedures
Refusal to participate Singular in appearance Change of appearance ID not anticipated as an issue (recognition) ID made shortly after offence Chance meeting
