Evidence Flashcards
Define evidence
Evidence is the term for the whole body of material which in a court or tribunal may take into account in reaching their decision
Evidence may be in oral, written or visual form
What is admissible evidence?
If it is legally able to be received in court
Define relevance
If evidence has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding
S7(3) Evidence Act 2006
What are the facts in issue?
SA
Facts in issue are those which:
- the prosecution must prove to establish the elements of the offence or
- the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof
What are the exclusionary rules in relation to general evidence?
3 points
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it)
What is the weight of evidence?
Is the value in relation to the facts in issue. The value depends on factors such as:
- the extent to which, if accepted, it is directly relevant to or conclusive of those facts
- the extent to which it is supported or contradicted by other evidence produced
- the veracity of the witness
The weight is the degree of probative force that can be accorded to the evidence
Define offer evidence
Evidence must be elicited before it is “offered”, merely putting a proposition to a witness is not offering evidence, it becomes so when the witness accepts the proposition. Includes eliciting evidence by cross-examination of a witness called by another party
What are the three ways to give evidence?
- In the ordinary way - orally in the courtroom in the presence of a judge
- In an alternative way - in the courtroom but unable to see the defendant, outside the courtroom or by video recording made before the hearing or by audio-visual link
- In any other way provided for by the Evidence Act 2006 or any other relevant enactment
Define incriminate
To incriminate is to provide information that is reasonably likely to increase the likelihood of the prosecution of a person for a criminal offence
What is a proceeding?
This means a proceeding conducted by a court, and any application to a court connected with a proceeding
What is a statement?
This is a spoken or written assertion by a person or non-verbal conduct of a person intended by that person as an assertion of any matter
What is a witness?
This is a person who gives evidence and is able to be cross-examined in a proceeding
Define a hearsay statement
A statement that was made by a person other than a witness and is offered in evidence in the proceeding to the truth of its contents
Define veracity
This is the disposition of a person to refrain from lying whether generally or in a proceeding
Define propensity
Is evidence about a person’s 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 alleged to have been involved
What is direct evidence?
Evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced
What is circumstantial evidence?
Evidence of circumstances that do not directly prove any fact in issue but allow for inferences about the existence of those facts to be drawn
Define an enforcement agency
Refers to the NZ Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment eg Fisheries, Customs, IRD etc
What is the Woolmington principle within the burden of proof?
This 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.
What is the practical obligation on defence when it comes to the Woolmington principle?
It is simply a practical obligation to point to some evidence that suggests a reasonable doubt about conclusions one would otherwise draw from the prosecution case
Define the evidential burden for defence in relation to a live issue
Having an evidential burden means that a defence cannot be left to the jury or judge unless it has been made a live issue by the defence. It is not a burden of proof, and once its made a live issue the the prosecution must destroy the defence, because the burden of proof remains with the prosecution - the question always remains: has the prosecution proved its case
What are the three exceptions to Woolmingtons principle?
- Defence of insanity (S23(1) CA1961
- Express statutory exceptions by Parliament
- Public welfare regulatory offences which are offences that regulate everyday conduct which have a tendency to endanger the public or sections of the public. These are strict liability offences.
Define discharging the burden of proof
Where the legal burden is on the prosecution it must be discharged beyond reasonable doubt. Any element which the defence bears the burden of proving need only be proved on the balance of probabilities
What is beyond reasonable doubt?
R v Wanhalla
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
The starting point is the presumption of innocence. You must treat accused as innocent until the Crown has proved guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish their innocence
It is not enough for the Crown to persuade you that the accused is probably guilty or even that they are very likely guilty. On the other hand it is virtually impossible to prove anything to an absolute certainty
What is the balance of probabilities?
Where the defence is required to prove a particular element such as insanity on the balance of probabilities it must simply show that it is more probable than not
What is Section 6 of the Evidence Act 2006?
Six points - F.A.F.C.E.L
SA
It sets out the purpose of the act and help secure the just determination of proceedings by:
a) providing for facts to be established by the application of logical rules and
b) providing rules of evidence that recognise the importance of the rights affirmed by the NZ BOR Act 1990 and
c) promoting fairness to parties and witnesses and
d) protecting rights of confidentiality and other important public interests and
e) avoiding unjustifiable expense and delay and
f) enhancing access to the law of evidence
Define what facts prove the charge
SA
The facts must prove the elements of the charge and the evidence should be made up of facts that prove the 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
What is the facts in issue when it comes to criminal cases?
SA
The facts in issue are the facts which in law need to be proven to succeed with the case. They are usually those which are alleged by the charging document and denied by a plea of not guilty
What is the general rule when it comes to evidence?
All facts in issue and facts relevant to the issue must be proved by evidence
Exceptions are:
Where a judicial notice is taken
The facts are formally admitted
Define the judicial notice S128 and S129
The court declares that it will find that the fact exists or will direct the jury to do so even though evidence has not been established that the fact exists
S128 Notice of uncontroverted facts
(1) Facts are so known and accepted either generally or in the locality that they cannot be reasonably be questioned
(2) Facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned
S129 Admission of reliable published documents
(1) In matters of public history, literature, science or art admit as evidence any published documents that the judge considers to be reliable sources of information
S128 covers locality such as the date of an annual carnival even if not known by the wider national public
Define facts formally admitted
In a trial the counsel from either party can accept that some evidence is accepted or proven from the outset. Sections 9(2) and 9(3) EA 2006 provide that the defendant or prosecution may admit any fact and therefore dispense with proof of that fact
What is a presumption?
Where no direct evidence is offered or obtained disputed facts are sometimes inferred from other facts which are themselves proved or known. In such cases the inference is called a presumption.
Presumptions may be of law or fact
Define presumptions of law
Presumptions of law are inferences that have been expressly drawn by law from particular facts
Presumptions of law may be either conclusive or rebuttable
An irrebuttable presumption would be that a child under 10 can be convicted of an offence because it is a rule of a substance of the law rather than the procedure contained in the law. A rebuttable presumption would be that all defendants are innocent until proven guilty
Define presumption of fact
Presumptions of fact are those that the mind naturally and logically draws from given facts. For example one presumes that a person has guilty knowledge if they have possession of recently stolen goods.
Presumptions of fact are simply logical inferences and so are always rebuttable
Who decides on evidence admissibility and how?
What are the 3 points when deciding on admissibility?
Evidence can be admissible if it can be legally received by a court. No particular standard of proof attaches to decisions of admissibility of evidence unless a particular provision of the Evidence Act 2006 provides for it.
The judge decides on admissibility.
In R v Burrows the court held that the party wishing to bring the evidence has the burden of showing the evidence is admissible. Admissibility is essentially a question of law.
Deciding whether evidence is admissible comes down to its:
Relevance
Reliability
Unfairness
Define relevance?
Section 7 Evidence Act 2006
Section 7: Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible except
(a) inadmissible under this act or any other act
(b) excluded under this act or any other act
(2) Evidence that is not relevant is not admissible in a proceeding
(3) 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
Includes direct and circumstantial evidence.
All irrelevant evidence will always be inadmissible and relevant facts are not always admissible. For facts to be received as evidence it must be relevant and admissible.
Once evidence is received the degree of probative force or “weight” to be given to the evidence is a question for the judge alone or for the jury.
Inadmissibility or exclusion 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 Evidence Act 2006
Is unreliability a ground for inadmissibility?
What are the two exclusions?
Unreliability is not a general ground for inadmissibility, the Act contains specific exclusions for it including rules relating to hearsay and identification evidence.
What are the two ways evidence can be excluded because of unfairness?
Evidence that is reliable may be excluded because of unfairness. It covers a variety of situations and is a matter of discretion for the trial judge. It arises in two ways:
- Results in some unfair prejudice in the proceeding
- Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair ie. unfairly obtained confession
What is S8 General Exclusions in relation to unfairness?
S8 General exclusions
(1) In any proceeding the judge must exclude evidence if its probative value is outweighed by the risk the the evidence will-
(a) have an unfairly prejudicial effect on the proceeding
(b) needlessly prolong the proceeding
(2) For the above the judge must take into account the right of the defendant to offer an effective defence
Once a judge decides that (1)(a) or (b) applies the requirement to exclude is mandatory
Define unfair prejudice
WIM
The risk of unfair prejudice will typically refer to the danger that a trier of fact will:
- give some piece of evidence more Weight than it deserves
- use evidence for an Illegitimate purpose.
- be Misled by evidence
S8 allows exclusion for evidence that is unfair for the proceeding as a whole by drawing jury members away from the real issues of the trial
What is the right for a defendant to offer an effective defence?
This reflects S25(e) (the right of criminal defendants to present a defence) and S25(a) (the right to a fair trial) of the Bill of Rights Act 1990
Define admission by agreement
S9(1) Evidence Act 2006 allows for the admission of evidence, even if not otherwise admissible, where the parties agree. In R v Hannigan the judge retains control of this process and may decline to admit the evidence even if all parties agree or not allow its admission in the form agreed by the parties
Define provisional admissibility and evidence on “voir dire”
S14 Evidence Act 2006 provides that where a question arises re the admissibility of evidence the judge may admit the evidence, subject to further evidence being offered later which establishes admissibility. If further evidence is unavailable then it is excluded.
Section 15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. This hearing is called a “voir dire” also referred to as preliminary facts
S15 applies to all witnesses and to evidence given in any type of hearing geld to determine the admissibility.
Evidence given at a voir dire will be admissible in the proceeding. It is admissible to demonstrate the inconsistency.
Define the limited use of evidence and use for multiple purposes
S7(3) Evidence Act 2006 allows evidence to prove anything that is of consequence to the determination of the proceeding.
Admissible evidence may be used in different ways and for different purposes. Not necessarily only for the purpose for which it has been admitted.
Hart v R confirmed this approach stating evidence is either admissible for all purposes or not admissible at all,
Sections that limit the use:
S27 - Controls the use of pre-trial statements of defendants and co-defendants
S31 - Forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
S32 - Forbids the fact-finder from using a criminal defendants pre-trial silence as evidence as guilt
The act allows or requires judges to warn juries against the reliance on some types of evidence for certain purposes such as S124 (warning about evidence that the defendant has lied)
What do the exclusive rules of evidence deal with?
Most of the laws of evidence concern the things that cannot be given in evidence
Veracity Propensity Hearsay Opinion Identification Improperly obtained evidence
S8 probative value versus prejudicial effect on the proceeding
Define the relationship between the veracity and propensity rules
Veracity - a disposition to refrain from lying
Propensity - a tendency to act in a particular way
The rules do not apply to evidence about a persons veracity if the veracity is an element of the offence for which the person is being tried (eg perjury)
They do not apply to bail or sentencing hearings, except when the evidence is covered by S44 (relates to sexual experience of the complainant with any other person other than the defendant, or their sexual reputation)
Define veracity rules S37
SA - 5 points judge considers when allowing veracity?
S37 Veracity rules
(1) A party may not offer evidence about a persons veracity unless the evidence is substantially helpful in assessing that persons veracity
(3) The judge may consider whether the evidence shows one or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth
(b) the person has been convicted of one or more offences that indicate a propensity for dishonesty
(c) any previous inconsistent statements
(d) bias on the part of the person
(e) a motive on the part of the person to be untruthful
(4) A person who calls a witness-
(a) may not offer evidence to challenge that witness’ veracity unless the judge determines the witness to be hostile but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness
(5) Veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding
- Veracity solely focuses on truthfulness
- Can’t challenge your own witness’ veracity unless declared hostile
Veracity
What is substantial helpfulness and what is the test?
In order to be admissible, veracity evidence must be substantially helpful in assessing a persons veracity. This is a higher threshold than relevance.
The test applies to both veracity evidence in evidence in chief and that elicited through cross-examination.
It is not a sufficient test in two instances:
- where the prosecution wish to offer evidence about a defendants veracity (S38) and
- where a defendant offers veracity evidence about a co-defendant (S39)
What is the evidence of a defendants veracity? S38
SA - 2 points where prosecution may offer evidence about a defendants veracity?
(1) The defendant may offer evidence of their own veracity
(2) The prosecution may offer evidence about a defendants veracity only if-
(a) 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
And
(b) the judge permits the prosecution to do so
The prosecution must show that the veracity is relevant
Will only be granted if the defendants veracity is in issue
The defendant has offered evidence about their veracity
The proposed evidence must meet the substantial helpfulness test
Must get permission from the judge
The judge will take into account (S38(3))
- The extent to which the defendant’s or prosecution witness’ veracity has been put in issue in the defendants evidence
- The time that has elapsed since any conviction
- Whether any evidence was elicited by the prosecution
Define the propensity rule S40
S40(1)(a) Propensity evidence 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
S40(1)(b) does not include evidence of an act or omission that is
(i) one of the elements of the offence of which they being tried
(ii) the cause of action in the proceeding in question
What is the general rule for propensity and what doesn’t it include?
The general position is that a party may offer propensity evidence about any person
It does not include evidence that is solely or mainly about veracity
Define propensity evidence about defendants S41
S41(1) incorporates the ability to offer good character evidence, disreputable conduct about him or neutral propensity (may for an alibi)
S42(2) provides that by offering evidence of his or her propensity to act in a good way, the defendant opens the door to rebutting evidence from the prosecution or another party (with the judges permission). In Wi v R it is unlikely that permission will be granted under S41(2) when the only propensity evidence offered by the defendant is evidence that he or she has no relevant convictions.
Rebuttal evidence can come through the questioning of any witness, including cross-examination of the defendant
The only way that the prosecution can offer propensity evidence about a defendant is if he or she offers propensity evidence about them self or S43 is satisfied
Propensity
When can the prosecution offer propensity evidence about a defendant and what must the judge consider (6)?
(1) Offered only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
(2) When assessing the probative value the judge must take into account the nature of the issue in dispute
(3) The judge may consider:
a) the frequency of the acts, omissions, events
b) the connection in time between acts, omissions
c) the extent of the similarity
d) the numbers of persons making allegations
e) whether collusion occurred for d)
f) the extent to which the acts, omissions, events or circumstances are unusual
(4) When assessing the prejudicial effect of evidence on the defendant the judge must consider:
a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant
b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
Propensity
Define the requirements for admission Rei v R
The evidence must:
a) constitute propensity evidence
b) have a probative value in relation to an issue in dispute
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
Propensity
Define the probative value and prejudicial effect
Mahomed v R
S43(1) focuses only on the risk of a prejudicial effect on the defendant
The test is concerned with illegitimate prejudice
Mahomed v R
The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have
The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant
Propensity
Define conviction for earlier wrongdoing not being necessary
The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence
Such evidence has been termed prior acquittal evidence
Conduct that is subsequent to the present offending is capable of being propensity evidence
Who takes into account the nature of the issue
The judge must take into account the nature of the issue in dispute
What factors must the judge consider when assessing prejudicial effect
The judge must consider the non-exhaustive list of factors in S43(4)
Define Hearsay
A hearsay statement is defines as (s4)
a statement that
a) was made by a person other than a witness and
b) is offered in evidence at the proceeding to prove the truth of its contents
A statement is a spoken or written assertion by a person of any matter or
Non-verbal conduct of a person that is intended by that person as an assertion of any matter
Hearsay statements are not admissible except where there is provision for the admissibility in the Evidence Act 2006 or any other act; or where there is express provision that the hearsay rules do not apply S17
Unintended assertions are not statements
Define other than a witness
The ability to cross-examine the maker of the statement means that the primary rationale for the rule against hearsay (the ability to test the credibility and accuracy of the maker) is not applicable
Hearsay
Define the purpose for which evidence is offered
The focus of the hearsay rule is on the purpose for which the evidence is offered, rather than just the fact that the statement was made out of court
Hearsay
What is S17
The hearsay rule
S17(1) a hearsay statement is not admissible except
(a) as provided by this subpart or by the provisions of any other act or
(b) in cases where
(i) this act provides that this subpart does not apply and
(ii) the hearsay statement is relevant and not otherwise inadmissible under this act
Hearsay
Define S18 - General admissibility of hearsay
(1) a hearsay statement is admissible in any proceeding if
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable and
(b) either
(i) the maker of the statement is unavailable as a witness or
(ii) the judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness
Simply reliability and unavailability
Hearsay
Define reliability
The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence:
- Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents
- The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement
- There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people (chinese whispers)
The reason for the rules existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested
S18(1)(a) focuses on the reliability of the hearsay statement itself not the person who intends to give the hearsay evidence
Hearsay
What are the five circumstances under S16(1)
a) the nature if the statement and
b) the contents of the statement and
c) the circumstances that relate to the making of the statement and
d) any circumstances that relate to the veracity of the person and
e) any circumstances that relate to the accuracy of the observation of the person
Relevant considerations may include whether it is written or oral, signed, witnessed, first-hand etc
Hearsay
What are the 5 parts to being unavailable as a witness S16(2)
a) dead or
b) outside NZ and it is not reasonably practicable for them to be a witness or
c) is unfit to be a witness because of age or physical or mental or
d) cannot with reasonable diligence be identified or found or
e) is not compellable to give evidence
The emphasis on 16(2)(b) is on whether the person cannot be a witness (AVL)
16(2)(c) covers youth as well
16(2)(e) covers the defendant - which are limited by S21 which provides that if a defendant does not give evidence they may not offer their own hearsay statement in evidence
Hearsay
What does S16(3) cover?
16(3) Subsection 2 does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence
Also covers where maker may not be consistent with out of court statement and intentionally causes them to be unavailable in an attempt to offer the hearsay evidence
Hearsay
When can business records be admissible?
Can be admissible when
(1) (a) the person who supplied the information used for the composition of the record is unavailable as a witness or
(b) the judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected to recollect the matters dealt with in the information they supplied
(c) the judge considers that undue expense or delay would be caused if that person were required to be a witness
A business record means a document made:
- to comply with a duty or in the course of business and as a record or part of a record of that business
- from information supplied directly or indirectly by a person who had personal knowledge of the matters dealt with in the information they supplied
Includes a statement made to Police and written in a notebook or jobsheet
Unlike S18 there is no requirement of reasonable assurance that the statement is reliable
Hearsay
Define the notice requirements S22
S22 Notice of hearsay in criminal proceedings
(2) A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating -
(a) the intention to offer hearsay
(b) the name of the maker of the statement
(c) if its made orally and the contents of the statement
(3) if statement made in writing then notice must be accompanied by the statement
(4) subsections (2) & (3) must be complied with in sufficient time to provide the other parties a fair opportunity to respond to the statement
The rationale for the notice provision is to encourage admissibility decisions concerning hearsay to be made pre-trial
Opinion
Define the opinion rule S23
A statement of opinion is not admissible in a proceeding, except as provided by section 24 or 25
A witness called to give evidence of what they have experienced, and the testimony must comprise direct evidence of their own perceptions of the facts.
The act defines opinion as a statement of opinion that tends to prove or disprove a fact
The exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence
The justification is:
- where a witness offers a bare opinion it holds little probative weight
- could confuse the tribunal of fact and prolong proceedings
- witness’s evidence of opinion may be based on other evidence which if stated expressly would be inadmissible
S24 and 25 are exceptions. A statement of opinion that is admissible under s24 and 25 should also satisfy any other rules that apply under the act for example propensity
Opinion
Define non expert evidence S24
S24 General admissibility of opinions
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate or the fact-finder to understand what the witness saw heard or otherwise perceived
Opinion evidence from a witness may include topics such as indentity, speed, emotional state, weather, age etc
To be admissible under S24 it must be:
- the only way in which to effectively communicate the information
- witness must be stating an opinion from something personally perceived
Opinion
Define S25 Admissibility of expert opinion evidence
Expert evidence may consist of fact, opinion, or a mixture of the two. Factual evidence will be governed by the general rules in ss7 and ss8
To comply with S25 it must;
- 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
Opinion
Define an expert
S4 defines an expert as a person who has specialised knowledge or skill based on training, study or experience
The expert is required to demonstrate to the court that they have the requisite qualification to be deemed an expert
Opinion
What are the two ways opinion evidence can substantially help?
S25(1) evidence will be admissible if likely to obtain substantial help from the opinion in:
- understanding other evidence or
- in ascertaining any fact that is of consequence in the determination of the proceeding
The requirement of substantial helpfulness seeks to offer a more rational test that assesses the reliability and value of the expert opinion on its merits
Opinion
How can opinion evidence be proved by facts?
Opinion based on facts outside the general body of information will need to be proved or judicially noticed
R v Turner
Before a court can assess the value of an opinion it must know the facts upon which it is based
The factual basis of an expert opinion needs to be proved
- Where material such as books and journal articles contribute to the general body of information on any given topic an expert witness is allowed to base their opinion partly on this information ie. research
- An expert opinion may also be based on facts supplied by others, can be based on assumed facts where there is no first hand knowledge ie. surgeon commenting on body not seen
The expert should state the assumed facts on which the opinion is based, and the admissible evidence offered is the assumed facts themselves. If research findings were relayed directly to the court, rather than being used to support and explain the conclusions reached by the expert witness, they would be hearsay evidence and may be excluded under S18
S129 reliable docs - public history, literature, science, art
Opinion
Define proven facts and provisional admissibility under S14
S25(3) requires that the fact is or will be proved
In jury trial there will be a direction to rely on the expert opinion only if it finds the factual basis proven
Opinion
Define the conduct of experts
Expert witnesses should be impartial in their assistance to the court
- must state their qualification when giving evidence
- facts matters and assumptions on which opinions are expressed must be stated explicitly
- reasons for opinions given must be stated explicitly
- literature or other material used or relied on to support opinions must be referred to by the expert
- expert must not give opinion evidence outside their area of expertise
- believes that their evidence might be incomplete or inaccurate without some qualification that qualification must be stated
- overriding duty to assist the court impartially
- not an advocate for any party
Opinion
What is the notice requirement for experts
If the defendant intends to call an expert witness they must disclose a brief of evidence or report at least 14 days before the date fixed for the trial
Testimony
What are the four points before summonsing a witness
- Whether they are allowed to give evidence
- Whether they are required to give evidence
- Whether they can refuse to give evidence and
- What type of witness they will be
Testimony
Define eligible and compellable witnesses
A witness is eligible if they are lawfully able to give evidence of both defence and prosecution.
A witness is compellable if they are 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
Testimony
What about judges, jurors and counsel
Under S72 a person who is acting as a judge in a proceeding is not eligible to give evidence in a proceeding.
Judge to give permission for others
A defendant who acts as their own counsel will not need judicial permission to testify
Testimony
Define compellability of defendants and associated defendants S73
S73 Compellability of defendants and associated defendants in criminal proceeding
(1) A defendant in a criminal proceeding is not compellable witness for the prosecution or the defence in that proceeding
(2) An associated defendant is not compellable to give evidence for or against the defendant unless-
(a) the associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined (ss3 withdrawn, dismissed, acquitted, pleaded or found guilty)
Testimony
Define defendant and associated defendant
Associate defendant - prosecution initiated for an offence arising out of the same event or relates to or is connected with the main offence of the defendant
This is to encompass not only actual co-defendants but also people charged with linked offending
If the associated defendant is actually a co-defendant at the defendants trial then rule of non-compellability applies
If the associated defendant is not a co-defendant and is being tried separately or where the proceeding against the associated defendant has been determined then they are compellable
Testimony
Who else is not compellable under S74
Judges, in respect of their conduct as a judge
Sovereign
Governor-General
Sovereign or Head of State of a foreign country
Testimony
What about bank officers? S75
S75 where the bank is not party to the proceeding then no bank officer is compellable to produce banking records if the contents can be proven under the business records exception to the hearsay rule (S19)
Privilege
Define privilege
The right to refuse to disclose or prevent disclosure of what would otherwise be admissible. Can arise from the contents of the evidence, the class of evidence, or because of the nature of a particular relationship
Privilege
What are the types of privilege?
Communication with legal advisors S54
Preparatory materials for proceedings S56
Communication with ministers of religion S58
Information obtained by medical practitioners and clinical psychologists S59
Privilege
What are two more privileges?
Privilege against self incrimination S60
Informer privilege S64
Privilege
Define the effect and protection of privilege
S53 Effect and protection of privilege
(1) A person who has privilege has the right to refuse disclosure in a proceeding-
(a) the communication
(b) the information
(c) any opinion formed
(3) stops from disclosing the communication by:
(a) the person to whom the communication was made
(b) any other person who has come into possession of it
(4) If the communication is in the possession of another person other than (3) a judge may order that the communication not be disclosed in a proceeding
Privilege
What to do when a claim of privilege is made
Enquire if the communication, information, opinion or document is within the scope of the privilege in question
Privilege
What does S53(4) cover?
S53(4) deals with the situation where privileged material comes into the possession of a person who does not have appropriate authorisation to possess it
Privilege
Define waiving privilege
Privilege may be waived at any time by the person who is entitled to rely on it but this does not necessarily mean that privilege has been waived for all purposes. Under S52 an interested person may still apply for an order that the privileged material remains inadmissible
Privilege
Define legal professional privilege
More than an ordinary rule of evidence, it is a fundamental condition on which the administration of justice as a whole rests
In NZ privilege takes primacy over all other public interests
Privilege
Define communications with legal advisers
- Must be intended to be confidential
- Must be made for the purposes of obtaining or giving legal services
- The privilege is vested in the person seeking or receiving the legal services
- The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence
- Provided it was intended that the communication be confidential and it was inadvertently overheard by others does not necessarily abrogate the privilege
Privilege
Define preparatory materials for proceedings
The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding
Privilege
Define communication with ministers of religion
S58 Privilege for communications with ministers of religion
(1) (a) made in confidence to or by the minister and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort
(2) a minister of religion is if the person has a status within a church or other religious or spiritual community for that person -
(a) to receive confidential communications of the kind described in (1)
(b) to respond with religious or spiritual advice, benefit or comfort
S58 extends to all communication, including a communication contained in a document
Also, communications must occur personally between privilege holder and the minister of religion
Where the communication is for a dishonest purpose or for the purpose of enabling or aiding an offence to be committed, the judge must disallow privilege
Privilege
When does privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists?
Define a clinical psychologist and drug dependency
Applies to:
(1)(a) consults for drug dependency or any other condition or behaviour that may manifest in criminal conduct
Clinical psychologist means a person who is permitted to diagnose and treat persons
Drug dependency means a state of periodic or chronic intoxication produced by the repeated consumption, smoking or other use of a controlled drug detrimental to the user and involving a compulsive desire to continue
Privilege
Define the rationale behind S59
To encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help. It can be invoked by any person involved in a criminal proceeding, such as a witness called to testify for the crown.
Disclosures made to a practitioners representative will be covered by the privilege, but the person must make the disclosure personally; disclosure by the persons representative to the practitioner or staff will not attract S59 privilege.
Privilege will not apply if the interaction between the individual and a health professional was required by an order of a judge or by some other lawful authority
It will not attach statements made or information obtained during medical or psychological treatment for conditions that result from a persons unlawful conduct or the by-product of criminal behaviour
Privilege
Define privilege against self-incrimination
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
S60 - Privilege against self-incrimination
(4) Does not enable a claim of privilege to be made -
(a) on behalf of a body corporate
(b) on behalf of any person other than the person required to provide the information
(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried
Privilege
Define privilege against self-incrimination in court proceedings S62 - SA
S62 privilege against self-incrimination in court proceedings
(2) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the judge to assess whether self-incrimination is reasonably likely if the person provides the required information
Privilege can only be asserted when the information sought poses a risk of conviction for a different offence to that being tried
Privilege
Define an informer S64
An informer is:
(2) (a) a person 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 a reasonable expectation that his or her identity will not be disclosed and
(b) not called as a witness by the prosecution to give evidence relating to that information
Privilege
When can privilege be disallowed for an informer S64
The privilege under S64 must be disallowed by the judge where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence. It may be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.
Confidentiality
Define the judicial discretion to protect confidentiality
There is little room for a judge to deny protection granted by a privilege where he or she considers that some other public interest outweighs the public interest in protecting the privilege
Confidentiality
Define confidentiality during during jury deliberations
Evidence must not be given about the deliberations of a jury
However, evidence that did not form part of the jury’s deliberations can be given about issues connected with the jury (ie the competence of a juror, or a gathers their own information)
Evidence may be given if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. The judge must weigh up:
- public interest in protecting the confidentiality of jury deliberations and
- public interest in ensuring that justice is done in those proceedings
Confidentiality
Define the protection of journalists sources
S68 provides that where a journalist promises an informant not to disclose the informants identity, neither the journalist nor their employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant. A high court judge may order that the protection will not apply if public interest in the disclosure of the identity of the informant outweighs:
- any likely adverse effect on the informant or any other person and
- the public interest in the communication of facts, and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts
Confidentiality
Define the overriding discretion as to confidential information
S69 allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material
A judge can give a direction under S69 on the judges own initiative or on the application of an interested person
Corroboration
Define independent evidence confirming or supporting fact
In general, one witnesses testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard.
Corroboration is not defined in the act. It 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
Corroboration
When is corroboration required as a matter of law
Perjury and related offences
Treason
In these instances corroboration is required as a matter of law
Course of evidence
Define the judges role in trial by jury
- Decide all questions concerning the admissibility of evidence
- Explain and enforce the general principals of law
- Instruct the jury on the rules of law by which the evidence is to be weighed
Course of evidence
Define the features of adversarial justice system
Judges function is to ensure that the evidence is produced according to established rules, ruling if necessary on its admissibility
Neither the judge nor the jury is generally entitled to go beyond the evidence presented by the parties and call witnesses or pursue inquiries of their own
Jurors must submit any questions they have during the proceeding to the judge, who will determine whether and how it will be put to the witness
Course of evidence
Oaths and affirmations
12 years of age or older - must take an oath or affirmation
Under 12 - make a promise to tell the truth
With the judges permission, a witness of any age may give evidence without taking an oath. Judge must inform of the importance of telling the truth and not telling lies before the witness gives evidence. The evidence of the witness must be treated as if it had been given on oath.
Course of evidence
Define S84 Examination of a witness
If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purpose of this act as evidence given in chief
Course of evidence
Define the sequence of jury trials
The judge may ask a witness any question that, in the judge’s opinion, is required in the interests of justice S100
No new information may be introduced or new issue raised during the closing address
Course of evidence
When can the trial be varied
Defence not obliged to call any evidence
Although this is the usual sequence, it nay on occasions be varied. It is becoming increasingly more common for defence counsel to provide a brief statement of issues in dispute in the case at the conclusion of the crown opening and before the prosecution calls any witnesses
Course of evidence
Defiine a view
A view is an inspection of a place or thing that is not in the courtroom (eg a scene). The judge decides and all parties and their lawyers are entitled to attend.
Course of evidence
Define the defendants right of silence
No person other than the defendant or the defendants counsel or the judge may comment on the fact that the defendant did not give evidence at their trial.
No person may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions
Evidence in chief
Define the purpose of evidence in chief
Is to elicit testimony that supports the case of the party calling the witness.
Must usually be given orally by a witness after they have taken the oath or affirmation
Evidence in chief
Devine the prohibition of leading questions
SA - 3 questions why not to ask leading questions
The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89)
Leading question defined as one that directly or indirectly suggests a particular answer to the question
The prohibition on leading questions is based on the belief that it will produce unreliable evidence because:
- natural tendency for people to agree
- more easily elicit the answers they wish to receive
- manipulation or construction of the evidence
The goal of evidence in chief and re-examination is to draw out the witness’s own recollection and to permit the trier-of-fact to judge the quality of the witness’s testimony
Evidence in chief
Define when leading questions are permitted
S89(1)
(a) the question relates to introductory or undisputed matters or
(b) the question is put with the consent of all parties or
(c) the judge allows the question
(2) Subsection (1) does not prevent a judge from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person
Leading questions may be allowed under S89(1)(c):
- to direct the witness’s attention to the subject of identification evidence
- to jog a witness’s memory about some fact or event in issue
- to assist eliciting the evidence in chief from very young people, people with difficulty speaking english or those with limited intelligence
- where the witness has been declared hostile
Evidence in chief
Two rules for refreshing memory
- Refreshment of memory by reference to written documentation in court
- Refreshment of memory out of court
Evidence in chief
Define refreshing memory in court
S90(5) For the purposes of refreshing their memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when their memory was fresh
Conditions:
- leave of judge must be obtained
- document must be shown to every other party in the proceeding and have been made or adopted at the time their memory was fresh
Evidence in chief
Define refreshing memory out of court
It is perfectly permissible, for instance, for witnesses to re-read their briefs before trial
Evidence in chief
Define previous consistent statements
Previous consistent statements are generally inadmissible.
S35 Previous consistent statements rule
(2) admissible if the statement -
(a) responds to a challenge that will be or has been made to the witnesses veracity or accuracy
(b) forms an integral part of the events
(c) consists of the mere fact that a complaint has been made in a criminal case
Evidence in chief
Define exceptions to previous consistent statements rule
The judge will admit only as many previous consistent statements as is necessary to respond to the to accuracy or veracity
Evidence in chief
Define questioning a hostile witness
SA - 4 question types to ask hostile witnesses?
If declared hostile can be:
- asked leading questions
- asked questions designed to probe the accuracy of memory and perception
- asked questions as to prior inconsistent statements
- other challenges to veracity, including evidence from other witnesses
R v Vagaia
There is no rule restricting a party from calling a witness who is known to be hostile to that party
Evidence in chief
Define a hostile witness
Means the witness:
- exhibits, or appears to exhibit, a lack of veracity when giving evidence
- gives evidence that is inconsistent with a statement made by that witness
- refuses to answer questions or deliberately withholds evidence
Whether the witness is hostile is a question of law for the judge, on application from a party in the proceeding
Cross-examination
Define the purpose of cross-examination
Two purposes of cross-examination:
- to elicit information supporting the case of the party conducting the cross-examination
- to challenge the accuracy of the testimony given in evidence in chief
Cross-examination
Define the duty to put the case
Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put that contradictory material to the witness during cross-examination
S92(1) A party must cross-examine a witness when:
- the cross-examination deals with significant matters in the proceeding and
- the matters are relevant and in issue and
- the matters contradict the evidence of the witness and
- the witness may reasonably be expected to be in a position to give admissible evidence on those matters
Cross-examination
Define unacceptable questions
S85 Unacceptable questions
(1) The judge may disallow, or direct that a witness is not obliged to answer any question that the judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated to understand
(2) The judge may have regard to
(a) age and maturity of the witness and
(b) physical, intellectual, psychological, or psychiatric impairment of the witness and
(c) linguistic or cultural background or religious beliefs of the witness and
(d) nature of the proceeding
S85 applies to all questioning of witnesses at all phases of a witness’s examination in court
Cross-examination
Define cross-examination as to prior inconsistent statements
Witnesses may be cross-examined as to prior inconsistent statements such as:
- written witness statements
- oral statements
Not always a non-consistent statement
A witness may be cross-examined about a previous statement whether document or oral, both consistent and not, without either being shown the statement or having its contents disclosed by the cross-examiner. The cross-examiner must adequately identify to the witness the time place and other circumstances concerning the making of the statement
Re-examination
Define the limits on re-examination
After cross-examination the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination but may not be questioned on any other matter, except with the permission on the judge
Rebuttal
When can you rebut
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 leave of the court
In addition a judge may recall a witness who has given evidence, where they consider that it is in the interests of justice to do so S99
Judicial directions and warnings
Define warning that evidence may be unreliable
S122
(1) If the judge is of the opinion that any evidence is admissible may nevertheless be unreliable the judge may warn caution when deciding
(a) to accept the evidence
(b) the weight to be given to the evidence
(2) The judge must consider giving warning when the following evidence is given:
(a) hearsay evidence
(b) evidence of a statement by the defendant if that is the only evidence implicating the defendant
(c) evidence given by a witness who may have motive to give false evidence
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison
(e) evidence about the conduct of the defendant that occurred more than 10 years previously
Judicial directions and warnings
Define direction about how evidence may be given
S123 requires the judge to direct the jury that the law makes special provision for the giving of evidence in certain circumstances and that no adverse inferences should be drawn against the defendant
- evidence given in alternate way
- witness anonymity order
Judicial directions and warnings
Define warnings about lies
No warning needs to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a defendants lie, or if the defendant requests that the warning is given, in which case a warning must be given
It should include direction that:
- the jury needs to be satisfied that the defendant did lie before they use the evidence
- people lie for various reasons and
- the jury should not necessarily conclude that just because the defendant lied they are guilty
Judicial directions and warnings
Define directions about evidence given by children
S125 provides that evidence given by children in any criminal case should, in general, be treated in the same was as evidence given by adults
Prohibits the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
Prohibits any direction or comment that there is need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort
Practical matters for not guilty pleas
What to do for witnesses
- Advise witnesses of the time, date and place of trial and exhibits to be presented
- Advise them of the procedure
- If they have a written statement to read it and refresh their memory
- Advise of witness expenses
General rule for giving evidence
Be truthful, factual, unbiased, calm and professional
