Evidence and Misc Flashcards
Explain Section 44 of the Evidence Act
No evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant (unless with the judges permission)
Explain how Section 44(1) is subject to Section 40(3) propensity rule
Evidence of the complainants propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.
Section 87 Evidence Act
Section 87 protects a witness from having to state their address and having questions put to them about that information. This includes name and number or street and name of town or community.
Can only be disclosed if the judge determines they are directly relevant
Section 88 Evidence Act
In a sexual case (except with permission of judge) no question may be put to complainant or any witness concerning their occupation
Section 121 Evidence Act
In any criminal proceeding, the complainants evidence does not have to be corroborated. This is especially important in cases of a sexual nature.
What offences is a Level 3 interviewer required?
Major offences such as homicides, sexual and serious assaults, aggravated robberies with firearms, kidnapping, abduction etc
What are the advantages of visually recording interviews?
- Greater quality and quantity of information obtained
- Minimising trauma by simplifying the process
- Reducing contamination by the interviewer through the process of transposing the interview into a statement
- Providing a valuable means for the witness to refresh their memory before proceedings
How does a video interview meet the child’s needs
- The interview process is focused on the child and allows them to clearly and freely explain what happened
- Interview can be used for basis of investigation, criminal prosecution and care and protection purposes
- Avoids the need to re-interview the child
Who does Section 195A apply to?
Section 195 - Ill-treatment or neglect of child or vulnerable adult.
Section195A - Failure to protect child or vulnerable adult
Applies to:
- Members of the same
household as the victim - Staff members of any hospital,
institution or residence where
the victim resides
Section 195A, what must happen for criminal liability to arise?
Frequent contact with a child or vulnerable adult and:
- Knows (mens rea) the victim is at risk of death, GBH or sexual assault as a result of the acts or omissions of another person
- Fails (actus reus) to take reasonable steps to protect the victim from that risk
Section 195 - Where the person “at risk” is a child it will need to be shown that they were:
- Under 18 at the time of the
offence - That the defendant was over
the age of 18 - The defendant had frequent
contact - The defendant has knowledge
of the risk of harm to the child
Grounds on which a direction can be made under Section 103 (3) of the Evidence Act 2006 in regards to a witness giving evidence in an alternative way:
- Age or maturity of witness
- Physical, intellectual,
psychological or psychiatric
impairment - Trauma
- Fear of intimidation
- Cultural background or belief
- Nature of evidence
- Absence from NZ
Discuss the requirement under Reg 28 of the Evidence Regulations 2007:
Prosecutor to give transcript to defence after defendant pleads not guilty.
Under Section 105 a witness may give evidence in what alternative ways?
- While in the courtroom but unable to see defendant (screens)
- From an appropriate place outside the courtroom, either in NZ or elsewhere (CCTV)
- By a video record made before the hearing
When can a previous consistent statement be admitted?
- To respond to a challenge to the witnesses veracity or accuracy, based on a previous inconsistent statement or recent invention
- The circumstances relating to the statement provide reasonable assurance that the statement is reliable and the statement provides the court with information that the witness is unable to recall
