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Evidence Module > Evidence > Flashcards

Evidence Flashcards

1
Q

Woolmington principle

A

The fundamental principle in law is the PRESUMPTION OF INNOCENCE, known as the woolmington principle.

The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

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2
Q

Evidential burden on defence

A

Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence.

Once the basic elements of the charge have been proved, it is up to the defence to point to some evidence that suggests an explanation eg. acting in self defence.

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3
Q

Exceptions to the woolmington principle:

A

The burden of proof lies with the prosecution (Woolmington principle) except where:

  • The defence of insanity is claimed
  • Specific statutory exceptions exist
  • the offence is a public welfare regulatory offence

There are exceptions where the legal burden of proof is placed on the defendant.
The most common is the defence of INSANITY (s23(1) CA61)

The principle can also be overridden by parliament by express statutory exceptions.

Some offence provisions shift the burden of proof of specific defences to the defendant (eg. s202A(4)(b) CA61 - possession of an offensive weapon in circumstances prima facie show an intent to use it as a weapon to cause bodily injury. The defence has to prove the absence of any such intent.

Also covers public welfare regulatory offences.

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4
Q

Discharging burden of proof:

A

In general, where the legal burden is on the prosecution, it must be discharged ‘BEYOND REASONABLE DOUBT’

If the burden is on the defence then is need only be proved on the ‘BALANCE OF PROBABILITIES’

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5
Q

Beyond reasonable doubt - R v WANHALLA

A

R v WANHALLA states that juries should be told that a reasonable doubt is:

‘An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.

AND

‘The starting point is the presumption of innocence. You must treat the accused as innocent until the crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence’.

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6
Q

Balance of probabilities

A

It must simply show that it is more probable than not.

If the probabilities are equal, the burden of proof is not discharged.

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7
Q

Ways of giving evidence:

A

In a proceeding, evidence may be given in the following ways:

  • the ordinary way
  • the alternative way (video link)
  • any other way provided for by the evidence act 2006 or any other enactment.
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8
Q

Purpose of evidence law - Section6 EA06 (6 points)

A

The act aims to ‘help secure the just determination of proceedings’ by:

1- Providing the facts to be established by the application of LOGICAL RULES

2- providing RULES OF EVIDENCE that recognise the importance of the right in the NZ BOR

3- Promoting FAIRNESS to parties and witnesses

4- Protecting RIGHTS OF CONFIDENTIALITY and other important public interests

5- AVOIDING UNJUSTIFIABLE EXPENSE and DELAY

6- ENHANCING ACCESS to the law of evidence

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9
Q

Facts that prove the charge:

A

Good evidence establishes what you are trying to prove.

The facts must prove the elements of the charge, and the evidence should be made up of facts that prove that charge.

In each case, the actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged

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10
Q

Facts in issue

A

The facts in issue are the facts in which law need to be proven to succeed with the case.

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11
Q

Circumstantial evidence

A

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue

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12
Q

Judicial notice

A

When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though the evidence has not been established.

EG. a judicial notice could be made where a fact is clearly established such as if the date of Christmas were a fact in issue.

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13
Q

Presumptions of law

A

Presumptions of law are inferences that have been expressly drawn by law or from particular facts.

Presumptions of law may be either conclusive or rebuttable.

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14
Q

Presumptions of fact

A

Presumptions of fact are simply logical inferences, and so are always rebuttable

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15
Q

Determining admissibility of evidence (4 points)

A

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

In deciding if evidence is admissible, the courts have reference to certain principles of evidence law.

  1. Relevance
  2. Reliability
  3. Unfairness
  4. Public interest
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16
Q

Relevance def:

A

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.

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17
Q

Inadmissibility of evidence in relation to relevance

A

Inadmissibility or exclusion of evidence will usually be due to a lack of reliability, fairness, public interest or a combination of these factors. Relevance is therefore a necessary, but not a sufficient, condition of admissibility under the EA06.

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18
Q

Fairness and the general exclusion

A

Even though evidence may be relevant, it may be excluded if it would result in unfairness.

Unfairness usually arises in 2 ways:

1- Evidence may be excluded if it would result in some UNFAIR PREJUDICE IN THE PROCEEDING

2 - OBTAINED IN CIRCUMSTANCES that would make its admission against the defendant UNFAIR (eg an improperly obtained statement of a defendant)

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19
Q

Section 8 (General exclusion) test:

A

The s8 test involves balancing the probative value of evidence against the risk that it will:

  • have an ‘unfair prejudicial effect on the proceeding’
  • ‘needlessly prolong the proceeding’
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20
Q

What is a Voir Dire?

A

Evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Such hearing is commonly referred to as a ‘Voir Dire’, particularly where the jury os excluded from the courtroom for the duration of the admissibility hearing.

Applies to all witnesses (not only defendants), and to evidence given in any type of hearing held to determine the admissibility of evidence.

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21
Q

The exclusive rules of evidence deal with..? (6 points)

A

The exclusive rules of evidence deal with:

1- veracity
2- propensity
3- hearsay
4- opinion
5- identification
6- improperly obtained evidence
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22
Q

Veracity def

A

A deposition to refrain from lying

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23
Q

Propensity def

A

a tendency to act in a particular way

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24
Q

veracity rules - what to consider (5 points)

A

In deciding if the evidence is substantially helpful in determining the veracity, the following points may be considered by the judge:

1- LACK OF VERACITY on the part of the person when under a legal obligation to tell the truth

2- That the person has been CONVICTED of 1 or more offences that indicate a lack of veracity

3- Any PREVIOUS INCONSISTENT STATEMENTS made by the person

4- BIAS on the part of the person

5- a MOTIVE on the part of the person to be untruthful

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25
Q

Evidence of a defendant’s veracity - when can a defendant / prosecution offer evidence about veracity?

A

A defendant in a criminal proceeding may offer evidence about his or her veracity.

The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:

1- The defendant has offered evidence about their own veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue

2- The judge permits the prosecution to do so.

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26
Q

what can the Judge take into consideration when determining if the prosecution can offer evidence about veracity? (3 things)

A

1 - The extent to which the defendant’s veracity or the veracity of a prosecution witness has been put into issue in the defendant’s evidence

2 - The time that has elapsed since any conviction about which the prosecution seeks to give evidence

3 - Whether any evidence given by the defendant about veracity was elicited by the prosecution

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27
Q

Propensity evidence def

A

Evidence that tends to show a person;s propensity to act in a particular way or to have a particular state of mind, being evidence of the acts, omissions, events or circumstances with which a person is alleged to have been involved

DOES NOT INCLUDE evidence of an act or omission which is:

  • 1 of the elements of the offence for which the person is being tried
  • the cause of action in the proceeding in question
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28
Q

Propensity evidence includes (2 things)

A
  • Propensity as to actions

- Propensity as to state of mind (eg lack of inhibition, a love of violence)

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29
Q

Propensity evidence does not include (2 things)

A
  • evidence of an act or omission that is one of the elements of the offence for which the person is being tried
  • Evidence that is solely or mainly about veracity (which is governed by the veracity rules)
30
Q

When assessing the probative value of propensity evidence, the judge may consider… (6 things)

A

1 - The FREQUENCY with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred

2 - The CONNECTION IN TIME between the acts, omissions, events or circumstances

3 - The EXTENT IN SIMILARITY between the acts, omissions, events or circumstances

4 - The NUMBER OF PERSONS making allegations against the defendant that =are the same as or similar to the subject of the offence

5 - Whether the allegations may be the result of COLLUSION OR SUGGESTIBILITY

6 - the EXTENT to which the acts, omissions, events or circumstances are UNUSUAL

31
Q

Hearsay statement def

A

A statement that

  • Was made by a person other than a witness; and
  • is offered in evidence at the proceeding to prove the truth of its contents
32
Q

A hearsay statement is not admissible except in cases where….

A
  • the hearsay statement is relevant and not otherwise inadmissible under this act (EA06)
33
Q

2 main criteria for inadmissibility of hearsay statements:

A

1 - reliability

2 - unavailability or that ‘undue expense or delay would be caused’

34
Q 
Section 16(1) EA06 defines 'circumstances'.
Circumstances in relation to a statement by a person who is not a witness, include:
(5 points)
A

1 - the NATURE of the statement; and

2 - The CONTENTS of the statement; and

3 - the CIRCUMSTANCES that relate to the MAKING of the statement; and

4 - any CIRCUMSTANCES that relate to the VERACITY of the person; and

5 - any CIRCUMSTANCES that relate to the ACCURACY OF THE OBSERVATION of the person

35
Q

A person is ‘unavailable as a witness’ in a proceeding if:

5 points

A

1 - is DEAD

2 - is OUTSIDE OF NZ and it is not practical for them to be a witness

3 - is UNIT to be a witness due to age or mental/physical condition

4 - Cannot with reasonable diligence be IDENTIFIED OR FOUND

5 - is NOT COMPELLABLE to give evidence

36
Q

‘Opinion’ def

A

a statement of opinion that tends to prove of disprove a fact

37
Q

What is the rationale behind the general exclusionary rule whereby an opinion is not admissible?

A

The justifications for the rule include that:

  • Where a witness offers a bare opinion it holds little probative weight
  • there is a danger that a witness offering opinion evidence will ‘usurp’ the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence
  • a witness’s evidence of opinion may be based on other evidence, which, if stated expressly, would be inadmissible (eg an opinion based largely on propensity evidence)
38
Q

Admissibility of opinion evidence.

In order to be admissible, the statement of opinion must fulfil two basic criteria:

A
  • Opinion must be the only way in which to effectively communicate the information to the finder of fact
  • The witness must be stating an opinion from something personally perceived
39
Q

Expert evidence def

A

Expert evidence may consist of fact, opinion or a mixture of the two

40
Q

Admissibility of expert evidence.
If the evidence is opinion evidence then the opinion must:
(3 things)

A
  • be that of an ‘expert’
  • comprise ‘expert evidence’
  • offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding
41
Q

Define an ‘expert’

A

An expert is a person who has specialised knowledge or skill based training, study or experience.

The expert is required to demonstrate to the court that they has the requisite qualification to be deemed ‘expert’ in the field in question; the expert may be qualified through formal study and training, from experience, or both.

The evidence offered should obviously be within their area of expertise

42
Q

Before a person is served with a summons to appear in court, verification must be made to…? (4 points)

A
  • Whether they are allowed to give evidence
  • Whether they are required to give evidence
  • Whether they can refuse to give evidence
  • What type of witness they will be
43
Q

A witness is eligible and compellable to give evidence if…?

A

A witness is eligible if they are lawfully able to give evidence for both prosecution and defence.

A witness is compellable if they can be required to give evidence against their will for both prosecution and defence.

*as a general proposition, all people are eligible and compellable to give evidence

44
Q

What is the definition of an associated defendant?

A

A person against whom a prosecution has been brought about for:

  • An offence that arose in relation to the same events as the defendant is being prosecuted
  • an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
45
Q

Who is not compellable to give evidence?

A

1 - Judges

2 - Sovereign

3 - Governor General

4 - Sovereign or head of state for a foreign country

46
Q

Define privilege?

A

A privilege in relation to giving evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be inadmissible.

47
Q

Types of privilege? (6 points)

A
  • Communications with legal advisors
  • Solicitor’s trust accounts
  • Preparatory materials for proceedings
  • Settlement negotiations or mediation
  • Communications with ministers of religion
  • Information obtained by medical practitioners AND clinical psychologists

There are also ‘other privileges’:

  • privilege against self-incrimination
  • informer privilege
48
Q

Self-incrimination def

A

Self-incrimination is the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.

49
Q

Claiming privilege against self-incrimination

A

A person who claims a privilege against self-incrimination in a court proceeding myst offer sufficient evidence to enable the judge to assess whether self-incrimination is reasonably likely if the person provides the required information

50
Q

‘Informer’ def

A

An informer is someone who has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has reasonable expectation that his or her identity will not be disclosed.

Includes members of the police who are working undercover.

51
Q

Protection of journalists’ sources vs compellability

A

Where a journalist promises an informant not to disclose the informers identity, neither the journalist or their employer is compellable to answer any questions or produce any document that would disclose the identity of the informant or enable the identity to be discovered.

52
Q

Offences that require corroboration? (4 points)

A

1 - Perjury

2 -False oaths

3 - False statements of declaration

4 - Treason

Corroboration is required as a matter of law!

53
Q

Corroboration def

A

Corroboration 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.

54
Q

What is the judges role in a trial by jury?

A

When presiding over a trial by jury, the judge must:

  • Decide all questions concerning admissibility of evidence
  • Explain and enforce the general principles of law applying to that point at issue
  • Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
55
Q

Oaths and affirmations for children

A

Witnesses who are OVER 12 must make 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.
56
Q

Restrictions on comment on defendant’s right to silence.

Who can comment on the defendant’s right to silence during trial? (3 people)

A

No other person than:

  • The defendant
  • the defendant’s counsel
  • Judge

only people who can comment on the fact that the defendant did not give evidence at their trial

57
Q

What is the purpose of evidence in chief?

A

The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.

58
Q

Leading questions def

A

A leading question is one that directly or indirectly suggests a particular answer to the question

59
Q

Why are leading questions not permitted?

A

The prohibition is based on the belief that it will produce unreliable evidence for the following reasons:

  • 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 witness 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
60
Q

When are leading questions allowed? (4 points)

A
  • To direct the witnesses attention to the subject of identification evidence
  • In order to jog a witnesses memory, provided that the answer to the central question is not suggested in the question
  • To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty understanding english and people of limited intelligence.
  • Where the witness has been declared hostile
61
Q

Refreshing memory in court. What documents can be given to the witness to help refresh their memory?

A

Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements.

The document must have been MADE BY THE WITNESS, or by another person acting on the witnesses behalf.

62
Q

Previous consistent statements rule.
A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless?
(3 points) **

A

A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement:

  • RESPONDS TO A CHALLENGE that will be or has been made to the WITNESS’S VERACITY OR ACCURACY based on a previous inconsistent statement of the witness or on a CLAIM OF INVENTION on the part of the witness; or
  • FORMS AN INTEGRAL PART OF THE EVENTS BEFORE THE COURT
  • CONSISTS OF THE MERE FACT that a complaint has been made in a criminal case.
63
Q

Hostile witnesses.

If a witness is declared ‘hostile’ they may be cross examined to the extent that the judge considers necessary for the purpose of doing justice which may include…?

(4 points)

A
  • Asking leading questions
  • Asking questions designed to probe the accuracy of memory perception
  • Asking questions as to prior inconsistent statements
  • Other challenges to veracity, including evidence from other witnesses.
64
Q

Define ‘hostile witness’ (3 points)

A

‘Hostile’ means that the witness:

  • 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.
  • Gives evidence which is inconsistent with a statement made by that witness
  • refuses to answer questions or deliberately withholds evidence.
65
Q

What are the purposes of cross examination?

2 points

A

1 - To elicit information supporting the case of the party conducting the cross examination

2 - To challenge the accuracy of the testimony given in evidence in chief

(eg casting doubt on the witness’s veracity or by eliciting contradictory testimony)

66
Q

Unacceptable questions.

In a proceeding the judge may disallow, or direct that a witness is not obliged to answer and question that the judge considers is: (4 points)

A
  • Improper
  • Unfair
  • Misleading
  • Needlessly repetitive
67
Q

In relation to unacceptable questions - what may the judge take into account?
(5 points)

A
  • The AGE or MATURITY of the witness
  • Any physical, intellectual, psychological or psychiatric IMPAIRMENT of the witness
  • The LINGUISTIC or CULTURAL background or RELIGIOUS BELIEFS of the witness
  • The NATURE OF PROCEEDING
  • in the case of a HYPOTHETICAL QUESTION, whether the hypothesis has been or will be proven by other evidence in the proceeding.
68
Q

Limits on re-examination.

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purpose of:

A

Clarifying or qualifying any issue raised during cross-examination.

MAY NOT be questioned on any other matter, except with the permission of the judge.

69
Q

Evidence in rebuttal.

Evidence called by either party after the completion of their own case, in order to rebut something arising during the trial, can only be admitted with the leave of the court.

Such leave may be given to the prosecution if the further evidence….

(4 points)

A

1 - Relates to a PURELY FORMAL MATTER

2 - relates to a matter ARISING OUT OF THE CONDUCT OF THE DEFENCE, the relevance of which could not have been reasonably foreseen

3 - WAS NOT AVAILABLE OR ADMISSIBLE BEOFRE THE PROSECUTION CASE WAS CLOSED.

4 - Is REQUIRED TO BE ADMITTED IN THE INTERESTS OF JUSTICE for any other reason.

70
Q

How should the OC address the judge?

A

Address the judge as “Your Honour” or “Sir/Ma’am”

Evidence Module (2 decks)

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