Evidence Act Flashcards

Question

Evidence act 2006 section 6 - purpose Heading (b) RULES

Answer 1

Providing rules of evidence that recognise the importance of rights affirmed by the NZ Bill of Rights Act 1990

Answer 2

Promoting fairness to parties and witnesses

Answer 3

Protecting rights of confidentiality and other important public interests

Answer 4

Avoiding unjustifiable expense and delay

Answer 5

enhancing access to the law of evidence

Answer 6

The presumption of innocence “Woolmington principal” - burden of proof lies either the prosecution (elements of the offence)

Answer 7

There is a practical obligation for the defence to point to some evidence to suggest reasonable doubt

Answer 8

If the defence wishes to put up a defence to the charge eg self defence - must be made a “live” issue for judge/jury to consider - prosecution must then try to destroy the defence for burden of proof

Answer 9

-Insanity -public welfare regulatory offences

Answer 10

Beyond reasonable doubt

Answer 11

Balance of probabilities (more probable than not)

Answer 12

Very high standard of proof - crown only meets this if jury is sure defendant is guilty (Wanhalla - case law) - rationale for burden of proof (presumption of innocence) not enough for crown to convince the fact finder of probable guilt and description of what reasonable doubt is

Answer 13

One witness: if unsupported by other evidence may be used to prove a case of it is reliable and accurate and meets the standard

Answer 14

Perjury Treason - corroboration is required for both of these

Answer 15

Not required in most cases Exception: - Perjury/treason (warning may be given -hearsay (must consider warning) - uncorroborated and possibly unreliable (consider warning) - prohibits warning in child complainants if wouldn’t as adult

Answer 16

They are rules of law not matters of discretion Although they involve questions of judgement they prescribed standards to be observed - R v Gwaze

Answer 17

All relevant evidence is admissible except if: -Not admissible under Any act -excluded under any act If it’s not relevant then it’s not admissible. It is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Answer 18

There must be some logical connection between evidence and the fact it is said to prove -may be direct or circumstantial -Excludes extraneous matters that do not relate to the issues -Relevance is a NECESSARY but not SUFFICIENT condition of admissability Weight of evidence is a question for judge or jury

Answer 19

Not a general ground of inadmissability relevant evidence may be excluded or given a warning if regarded as unreliable

Answer 20

Relevant evidence may be excluded if it would result in UNFARINESS 1) it would have an unfairly prejudicial effect on the proceeding - or needlessly prolongs the proceeding 2) judge must take into account the right of the defendant to offer an effective defence

Answer 21

Balances the probative value of evidence against the risk of an unfair prejudicial effect on proceeding or needlessly prolonging it. Eg defendant statement obtained by unfair / improper methods or calling 20 witnesses

Answer 22

Admission of non-admissible evidence may be possible if parties agree. Judge has the final say, of admissibility’s This allows prosecution and defence to admit facts so they don’t need to be proved Eg expert evidence not in dispute

Answer 23

FACTS WITNESSES CROSS-EXAM RULES DEFENDANT

Answer 24

Facts and evidence emerge by questions by prosecutions or defence to witnesses

Answer 25

Each party choose witnesses, the order and questions

Answer 26

each party can cross-examine witnesses from the other party

Answer 27

Judge to ensure evidence produced is according to the rules and can rule on its admissability

Answer 28

Does not have to give evidence, can remain silent. Prosecutions must prove beyond reasonable doubt

Answer 29

Must take an oath or affirmation

Answer 30

Must be informed by judge the importance of telling the truth (understanding not required) Must then promise to tell the truth before giving evidence

Answer 31

Judge may give permission to not do above eg intellectual disability or child witness not able to tell the truth. If so judge must inform them of importance of telling the truth and not lies

Answer 32

1) judge intro - opening instructions eg role/mechanism of jury, burden of proof, opening their mind 2) crown/prosecution information - prosecution explains charges, burden of proof, SOP, summary 3) Crown case - prosecution witnesses, give evidence, cross examine, re-examine 4) defence intro - general statements of jury role, evidence outline 5) defence case - defence witnesses 6) crown concludes - summary, no new info 7) defence concludes - summary, no new info 8) judge summary - summary to jury - defence is not obliged to call any evidence - defence may provide brief statement after crown/prosecutions intro, before witnesses called Evidence act 2006 witnesses to: -First give evidence in chief -cross examine -re cross examine Affidavit or witness statement = evidence in chief

Answer 33

The leave of the judge must be obtained

Answer 34

Document must be shown to every party

Answer 35

Document must have been made/adopted by witness at a time when memory was fresh - 6 weeks after incident is ok (R v RONGONUI)

Answer 36

Document must have been made by the witness, or someone acting on the witnesses behalf in their presence and asserted to

Answer 37

Previous consistent statement = admissible if reliable and provides information witness cannot recall - evidence remains oral testimony, if document just to revive witness memory - cannon consult an excluded document. Unreliable statement, oppression influenced or improperly obtained

Answer 38

- May refresh memory by reviewing statements, reports, talking to officer etc provided it relates to matters within witnesses own knowledge - must have some recollection, but needs to refer to prior documentation to obtain faded details - should advise defence if witness has refreshed memory prior to trial. Including police R v JENNINGS and R v FOREMAN - Evidence act 2006 has not changed approach to refreshing memory

Answer 39

- a witness may failed to provide evidence as expected - A party cannot examine their witness with leading questions and are not entitled to challenge the veracity of their own witness through cross examination - leave may be sought from the judge to declare a witness hostile if actively displaying hostility, towards the party calling him or he. > may be asked to cross examine questions for purpose of doing justice. Including leading questions, accuracy probes, challenged to veracity etc

Answer 40

Hostile is: -Exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party called the witness on a matter the witness is supposed to have knowledge -gives evidence that is inconsistent with a statement they made in a manner that exhibits an intention to be unhelpful to the party -refuses to answer questions or deliberately withholds evidence >Judge decides on application of the party >additional indicators such as demeanour or behaviour -Hannigan V R : An inconsistency alone isn’t hostility -No rule restricting calling a witness who is know to be hostile to that party R v VAGAIA

Answer 41

1) SOF 2) charging DOC 3)summary of defendant right to apply for further info 4) max penalty for an offence 5)list of known previous convictions 6) list of previous offences proved to have been committed and of a kind to which section 284 OT act applies

Answer 42

Disclose ASAP 1)name of witnesses intended to call 2)list of exhibits to be produced 3) records of interviews with defendant 4) records of number of prosecution witnesses 5) job sheets and other notes and testing device notes 6) diagrams or photos 7) statement or interview made by a co-offender 8)list of info prosecutions refuses to disclose and explanation why

Answer 43

- will it help or hinder the defendants ability to defend the charges -would or might it detract from the prosecution case, or assist the defendant or incriminate another person Police must retain info which points towards a fact or an individual casts doubt on the suspects guilt or implicates another person

Answer 44

-Prosecutions must allow for inspection of exhibits when required by the defendant after full disclosure. -purpose of - ensuring security and integrity of exhibit or maintaining its value - ensuring exhibit can continue to be used on an ongoing basis for law enforcement purposes

Answer 45

-prosecution must supply info if requested about ID witness -names (and address) of each ID witness, even if not going to call -statement of description of the offender -copy of identity pic/drawing

Answer 46

To be provided as soon as reasonably practicable after a defendant pleads not guilty or youth offender makes first appearance -all relevant info must be disclosed including standard info. As well as convictions of prosecution witnesses, info by expert witnesses, names and statements of witnesses not intended to be called upon. - prosecutor must also supply the defence with a list of relevant info that is not disclosed and the reason for refusal

Answer 47

In relation to informant or an exhibit means information or an exhibit as the case may be, that tends to support, or has a material bearing on the case against the defendant

Answer 48

1) does not hold info in recorded form 2) likely to prejudice maintence of law 3) likely to endanger safety of person 4) material prepared to assist in conduct of trial 5) communication between prosecution and other police 6) analytical and evaluative material in connection with investigation that led to defendant charged 7) material subject to non-disclosure 8) likely to prejudice security / defence of NZ or government 9) facilitate the commission of an offence 10) constitute contempt of court or house of reps 11) info is publicly available and previously made available to defendant ie OIA 12) reflects on credibility of witness who will not be called by prosecutions but may be by defendant 13) identifies witness address 14) would disclose a trade secret 15) must give reasons if withheld

Answer 49

Evidence act 2006 provides an entitlement for complainants and child witness to have a support person, regardless of way evidence given. > 1 support person requires judges permission Witnesses and defendant may apply for permission from judge to have a support person. Includes child defendants -must disclose to all parties the name of the support person - judge may give directions regulating conduct of support person or receiver of support.

Answer 50

-will help to give complete evidence -reduce stress and trauma for witness -merely to support not prompt or advise Judge may decline someone eg if support person is a public figure and may affect jury’s assessment of the witnesses veracity

Answer 51

Defendant and witnesses can receive communication assistance. For those without sufficient proficiency with English language to understand and give evidence or have a communication disability

Answer 52

Defendant: Communication assistance to understand proceeding and give evidence (not provided if judge believes they can understand) Witnesses: Communication assistance ONLY to give evidence (understand questions put orally and respond)

Answer 53

-entitled to give evidence in more than 1 alternative ways -must give notice to other parties about alternative ways used, no later than case management or trial call over is filed -party calling child or other party may apply for child with to give all or part in an ordinary way

Answer 54

May give evidence in chief or cross-examine in “alternative way”. May apply under the following grounds: -age or maturity -physical or intellectual -trauma suffered -fear of intimidation -linguistic / cultural or religious beliefs -nature of proceedings -nature of the evidence expected to give -relationship of the witness to any party -absence or likely absence from NZ -any other ground likely to promote the purpose of this act

Answer 55

Judge must have regard to: -need to ensure fairness of the proceeding, that there is a fair trial -views of the witness -minimise stress on the witness -promote the recovery of a complainant from the alleged offence Any other factor that is relevant to he just determination of the proceeding. If application received for alternative way - judge must give each party an application to be heard in the chambers. May request report from people advising effect on witness to give evidence in ordinary or alternate way

Answer 56

-court room - unable to see defendant (ie with screens / mirrors) -application place outside court room, in NZ or elsewhere -video record made before the hearing of the proceeding

Answer 57

- all persons -lawfully able to give evidence on behalf of prosecutions / defendant

Answer 58

- all persons eligible are compellable -can be required to testify against their will by both prosecutions / defendant Compellable witness may still be excused by the judge from testifying A witness that is eligible and compellible may be executed from answering certain questions because of privilege

Answer 59

Some witnesses will lack the capacity to give rational and coherent testimony. A person can be made unavailable as a witness if they: “Unfit to be a witness because of age or physical or mental condition

Answer 60

I’d acting as a judge in a proceeding can not testify

Answer 61

Unless judge permission, if acting as a juror/counsel cannot give evidence. If permitted, should be discharged from jury and they only have 11.

Answer 62

If acting as own counsel max does not need judicial permission to testify

Answer 63

Not compellable - can give evidence, but does not have to

Answer 64

Prosecution has been initiated for arising out of the same events Compellable for prosecution / defence if tried separately, or proceeding against them already determined (acquitted withdrawn, dismissed not guilty or sentenced) Co-defendant - not compellable

Answer 65

- judges, sovereign, government and head of state are not compellable -banks - a bank officer is not compellable to produce banking records / or to appear as a bank witness