Evidence Act

Question 1

What are the fundamental principles of the Evidence Act (5 relating to relevance)?

Answer 1

• Evidence that is not relevant is inadmissible
• Relevant evidence is that which proves or disproves anything relates to proceedings
• Relevant evidence must have some logical connection to the fact it is said to prove
• Relevant evidence can include direct and circumstantial evidence
• if the judge seems evidence relevant the party may present it

Question 2

What is the s8 general exclusion test?

Answer 2

Judge must exclude evidence if the PROBATIVE VALUE is outweighed by the risk of

A) unfairly prejudicial effect on proceedings or
B) needlessly prolonging proceedings

Question 3

Under s9 Evidence Act, even inadmissible evidence can be admitted if _____?

Answer 3

Both parties agree.

(But judge has ultimate decision on disclosure of evidence)

Question 4

What is the Woolmington Principle?

Answer 4

The presumption of innocence and the fact that the burden of proof therefore lies with the prosecution

Defence have the burden when creating their defence, i.e. insanity defence but must only prove it on the balance of probabilities

Question 5

According to the Woolmington principle, prosecution must prove offence beyond reasonable doubt what is the exception to this?

Answer 5

Public welfare offences -“no fault defence”

Question 6

According to the Woolmington principle, prosecution must prove offence beyond reasonable doubt what does caselaw define this as?

Answer 6

“An honest and reasonable uncertainty about the guilt of the accused”

Question 7

What is the standard of proof for defence and what is it defined as?

Answer 7

On the balance of probabilities
“more likely than not”

Question 8

What are the 5 characteristics of the Adversarial System (also called accusatory system)?

Answer 8

• Questions put by prosecution or defence to witnesses
• decision of which witnesses to call/order/what questions to ask them
• right to test their testimony through cross-examination
• Judge’s function is to ensure evidence follows the rules
• Defendant does not have to give evidence

Question 9

At what age must a witness take an oath or affirmation before giving evidence?

Answer 9

12 years and above must take oath/affirmation

Under 12 year olds must
- be informed by the judge of telling the truth and not telling lies
- and then make promise to tell the truth

Question 10

CASELAW: in R v Tanner the judge clarified what regarding under 12yo witnesses?

Answer 10

There is no requirement for Judge to determine that child understands the difference between truth and lies.

Question 11

What 5 things must be in initial disclosure?

Answer 11

• SOF
• charging doc
• summary of right to apply for further info
• max penalty
• list of previous convictions (or offences proved for YJ)

Question 12

What are the alternative ways of giving evidence?

Answer 12

Screen up (in courtroom but unable to see defendant)

Appropriate place outside courtroom (AVL)

By video record made beforehand

Question 13

What is ”probative value”?

Answer 13

How strongly the evidence points to the inference it is said to support and how important the evidence is to the issues in the trial.

Question 14

What is ”relevance”?

Answer 14

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

Question 15

What is “veracity”?

Answer 15

The disposition of a person to refrain from lying. Truthfulness.

Question 16

What is “propensity”?

Answer 16

Propensity is a person’s tendency to act in a particular way or have a particular state of mind

Question 17

What are the two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction? Ie you must have corroboration?

Answer 17

Perjury and treason

Question 18

If a witness wishes to refresh their memory whilst giving evidence what must be satisfied?

Answer 18

• Leave of the Judge must be obtained
• The document must be shown to every other party
• The document must be made or adopted by the witness at a time when his memory was fresh

Question 19

What makes a witness “hostile?”

Answer 19

• exhibits lack of veracity when given evidence unfavourable to the party who called the witness on a matter which the witness may reasonably be supposed to have knowledge about or
• gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits an intention to be unhelpful to the party who called the witness
• refuses to answer questions or deliberately withholds evidence

Question 20

What must be disclosed if a defendant applies for further info after commencement of proceedings?

Answer 20

• names of witnesses intended to be called
• list of exhibits
• copy of all records of interviews with def
• copy of all records of a prosecution witness
• copy of job sheets and other notes of evidence completed
• copy of any diagrams or photographs
• copy of any codefendant statement
• a list of anything the prosecutor refuses to disclose and why

Question 21

Full disclosure must be made as soon as reasonably practicable after a defendant has……?

Answer 21

• pleaded not guilty
• makes a first appearance (if CYP)

Question 22

What are some reasons for prosecutions to legally withhold information ?

Answer 22

• prosecutor does not hold the info
• disclosure likely to prejudice maintenance of the law
• disclosure is likely to endanger the safety of any person
• it is material to assist in the conduct of the trial
• comms between prosecutor and police etc
• analytical/evaluative
• subject to a non-disclosure enactment
• disclosure likely to prejudice the security or defence of NZ
• disclosure likely to facilitate the commission of an offence
• info publicly available

Question 23

How soon should initial disclosure occur

Answer 23

Generally no later than 15 working days after commencement of proceedings

Question 24

Do defendants have to give evidence?
What about associated defendants?

Answer 24

Defendants are not compellable!

Associated defendants do not have to give evidence unless:
A) being tried separately
B) proceeding against the associated defendant has been determined

Question 25

On what grounds may a witness give evidence in an alternative way?

Answer 25

• age/maturity
• physical/intellectual I/psychological/psychiatric impairment
• the trauma suffered
• fear of intimidation
• linguistic or cultural background
  – nature of proceeding
  – nature of evidence
  – relationship of witness to any party to the preceding
• the absence or luckily absence of the witness from NZ

Question 26

What are the two classes of character evidence?

Answer 26

Veracity evidence (truthfulness)
Propensity evidence (tendency to act a particular way)

Question 27

What is the general rule regarding propensity evidence?

Answer 27

A party may offer propensity evidence about any person. Subject to restrictions (41-43) and 44

Question 28

Propensity evidence can only be given about the defendant by prosecution if _____?

Answer 28

The probative value outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.