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CPK Dec 2023 > Evidence Act > Flashcards

Evidence Act Flashcards

1
Q

Evidence defined

A

Whole body of material which a court or tribunal (ie judge or jury) may take into visual account in reaching their decision.

May be written, oral or visual

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2
Q

Rules of evidence

A

1) How it may be given
2) who may give it
3) What type of material may be given in evidence

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3
Q

Admissible evidence

A

Evidence is admissible if it is legally able to be received by a court

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4
Q

Fact finder

A

Judge or jury

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5
Q

Relevance

A

Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding S7(3)

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6
Q

Facts in issue

A

Are those which the prosecution must prove in order to establish the elements order to establish the elements of the offence or those which the defendant must prove in order to succeed with a defence in respect of which they carry the burden of proof

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7
Q

Proceeding

A

A proceeding conducted by a court and any interlocutory or other application to a court connected with a proceeding

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8
Q

Weight of evidence

A

The weight is it’s cause in relation to the facts in issue. It is dependent on:

-extent to which it is directly relevant or conclusive those facts
- extent to which it is supported or contradicted by other evidence
-veracity of the witness
-is the degree of probative value that it can be accorded to

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9
Q

Probative value

A

How strongly evidence points to the inference it is said to support and how impotent the evidence is to the issues in the trial to determine probative value. How strong and centrally evidence assists in proving / disproving

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10
Q

Prejudicial evidence

A

Evidence adverse to a party’s case, drawing of inference against a party

S8 - unfair prejudice

Ie. danger that jury may give more weight to evidence than it deserves, speculate meaning inappropriately or be mislead or use for illegitimate purpose

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11
Q

Veracity

A

The disposition of a person to refrain from lying

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12
Q

Offer evidence

A

A party offers evidence - includes calling a witness who “gives evidence” a party who testifies both gives and offers evidence.

Includes evidence by cross examination a witness called by other party

Must adopt the proposition

Morgan v R (case law)

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13
Q

Give evidence

A

A person who recounts facts or opinions in a proceeding.

-ordinary was ie court room
- alternative way ie in court but can’t see defendant / pre made video / AVL
- any other way by 2006 act
-overseas = any document and answer questions

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14
Q

Witness

A

A person who gives evidence - is able to be cross examined

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15
Q

Child complainant

A

A complainant who is under 18 years when the proceeding commences. (Charging document filed, not the start of the trial)

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16
Q

Child witness

A

A witness who is a child when the proceeding commences, includes a child complainant but not a child defendant

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17
Q

Incriminate

A

To provide information that is likely to lead to, or increase likelihood of the prosecution of a person for a criminal offence

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18
Q

Statement

A

A spoken or written assertion by a person or non-verbal conduct intended as an assertion of a matter

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19
Q

Hearsay statement

A

Made by a person other than a witness and is offered as evidence in the proceeding to prove the truth of its contents.

Out of court statement made by a witness are not excluded. By hearsay rule it’s maker is available for cross-examination.

A statement made or uttered is not to prove truth is not hearsay

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20
Q

Propensity

A

A persons tendency to act in a particular way or have a particular state of mind

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21
Q

Direct evidence

A

Any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced

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22
Q

Circumstantial evidence

A

Evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn

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23
Q

Purpose of evidence act 2006

A

Aim - “help secure the just determination of a proceeding”

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24
Q

Evidence act 2006 section 6 - purpose
Heading (a) - FACTS

A

Providing for facts to be established by the application of logical rules

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25
Q

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

A

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

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26
Q

Evidence act 2006 section 6 - purpose
Heading (c) FAIR

A

Promoting fairness to parties and witnesses

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27
Q

Evidence act 2006 section 6 - purpose
Heading (d) - CONFIDENTIAL

A

Protecting rights of confidentiality and other important public interests

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28
Q

Evidence act 2006 section 6 - purpose
Heading (e) DELAY

A

Avoiding unjustifiable expense and delay

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29
Q

Evidence act 2006 section 6 - purpose
Heading (f) ACCESS

A

enhancing access to the law of evidence

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30
Q

Burden of proof (generally)

A

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

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31
Q

Burden of proof (defence)

A

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

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32
Q

Evidential burden

A

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
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33
Q

Burden of proof exceptions

A

-Insanity
-public welfare regulatory offences

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34
Q

Standard of proof (prosecution)

A

Beyond reasonable doubt

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35
Q

Standard of proof (defence)

A

Balance of probabilities (more probable than not)

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36
Q

What is beyond reasonable doubt

A

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
37
Q

Corroboration

A

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

38
Q

Corroboration exceptions

A

Perjury
Treason - corroboration is required for both of these

39
Q

Corroboration (warnings)

A

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

40
Q

Principles (admissibility of s7 and s8

A

They are rules of law not matters of discretion

Although they involve questions of judgement they prescribed standards to be observed - R v Gwaze

41
Q

Evidence act section 7 : relevance

A

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

42
Q

Evidence act section 7 - relevance

What must there be?

A

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

43
Q

Evidence act section 7 - reliability

A

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

44
Q

Evidence act section 8 : general exclusion

A

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

45
Q

evidence act section 8 : exclusion

What does it do in terms of probative value?

A

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

46
Q

Evidence act section 9 : admission by agreement

A

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

47
Q

The trial process part 1 - what are the 5 parts?

A

FACTS

WITNESSES

CROSS-EXAM

RULES

DEFENDANT

48
Q

The trial process - FACTS

A

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

49
Q

The trial process - WITNESSES

A

Each party choose witnesses, the order and questions

50
Q

The trial process - CROSS-EXAM

A

each party can cross-examine witnesses from the other party

51
Q

The trial process - RULES

A

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

52
Q

The trial process - DEFENDANT

A

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

53
Q

The course of evidence - oaths and affirmations

What must a 12+ year old do?

A

Must take an oath or affirmation

54
Q

The course of evidence - oaths and affirmations

What must an under 12 do?

A

Must be informed by judge the importance of telling the truth (understanding not required)

Must then promise to tell the truth before giving evidence

55
Q

The course of evidence - oaths and affirmations EXCEPTION

A

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

56
Q

Conduct of trials - the criminal procedure act 2011
Jury Trial Sequence

A

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

57
Q

Refreshing memory evidence act 2006 - IN

Condtion 1

A

The leave of the judge must be obtained

58
Q

Refreshing memory evidence act 2006 - IN

Condtion 2

A

Document must be shown to every party

59
Q

Refreshing memory evidence act 2006 - IN

Condtion 3

A

Document must have been made/adopted by witness at a time when memory was fresh

  • 6 weeks after incident is ok (R v RONGONUI)
60
Q

Refreshing memory evidence act 2006 - IN

Condtion 4

A

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

61
Q

Refreshing memory evidence act 2006 - IN

Statements

A

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
62
Q

Evidence act 2006 refreshing memory OUT

A
  • 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
63
Q

Hostile witnesses

A
  • 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
64
Q

Unfavourable vs hostile

Hostile

A

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

65
Q

Criminal Disclosure act 2008

Initial disclosure - prosecution

A

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

66
Q

Criminal disclosure act 2008

If further info applied for

A

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

67
Q

Criminal disclosure act 2008

DECIDE:
If info or exhibit supports

A
  • 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

68
Q

Criminal disclosure act 2008

Exhibits

A

-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
69
Q

Criminal disclosure act 2008

Identification witness

A

-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

70
Q

Criminal disclosure act 2008

Full disclosure prosecution s13

A

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
71
Q

Criminal disclosure act 2008 s13

Relevant to CDA act 2008

A

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

72
Q

Criminal disclosure act 2008

Reasons to withhold info

A

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

73
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Support persons

A

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.
74
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

What does a support person equal?

A

-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

75
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Communication assistance (general)

A

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

76
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Communication assistance - defendant and witnesses

A

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)

77
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Special provisions for child witnesses

A

-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

78
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Alternative ways to give evidence

A

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

79
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Section 103(4) evidence act

A

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

80
Q

Evidence act 2008

The trial process part 2 : protecting / supporting

Judge may direct with giving evidence in an alternative way to:

A

-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

81
Q

Evidence act 2006

Eligibility

A
  • all persons
    -lawfully able to give evidence on behalf of prosecutions / defendant
82
Q

Evidence act 2006

Compellability

A
  • 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

83
Q

Evidence act 2006

Who may still be compellable?

A

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

84
Q

Evidence act 2006

Eligibility and compellability

Exceptions (judge)

A

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

85
Q

Evidence act 2006

Eligibility and compellability

Exceptions juror / counsel

A

Unless judge permission, if acting as a juror/counsel cannot give evidence.

If permitted, should be discharged from jury and they only have 11.

86
Q

Evidence act 2006

Eligibility and compellability

Exceptions defendant

A

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

87
Q

Evidence act 2006 s73

Eligibility and compellability

Exceptions defendant

A

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

88
Q

Evidence act 2006

Eligibility and compellability

associated defendant

A

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

89
Q

Evidence act 2006

Eligibility and compellability

S73 exceptions

A
  • 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

CPK Dec 2023 (3 decks)

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