Evidence 'B' Files Part 1

Question 1

Where the onus falls on the defence to prove a particular element, the standard of proof required is:

1. on the balance of probabilities
2. no more than to raise a doubt
3. beyond reasonable doubt
4. beyond a shadow of a doubt

Answer 1

A: on the balance of probabilities

Question 2

Circumstantial evidence has been defined as:

A a fact always in issue that needs to be proved

B a fact that directly or indirectly tends to prove or disprove a fact in issue

C a fact that by inference can prove another fact in issue

D a fact that is admissible in evidence if it can be legally received by the court

Answer 2

C a fact that by inference can prove another fact in issue

Question 3

Once the judge has granted an application to treat a witness as hostile, that witness may be:

1. asked leading questions
2. questions as to prior inconsistent statements
3. asked any question whatsoever whether relevant to the matter under inquiry or not
4. tested on such matters as the accuracy of his/her memory and perception

A 1,2,3, and 4 are correct

B 1,2 and 3 only are correct

C 1 and 2 are correct

D 1, 2 and 4 only are correct

Answer 3

D 1, 2 and 4 only are correct

Question 4

What is the meaning of veracity?

A a tendency to act in a particular way

B a disposition to refrain from lying

C the ability to record a statement accurately

D a tendency to exaggerate facts

Answer 4

B a disposition to refrain from lying

Question 5

The general purpose of the examination-in-chief is to:

A Weaken, qualify or destroy the opponents case

B Elicit testimony that supports the case of the party calling that witness

C Elicit new facts arising out of the cross-examination of the defence witnesses

D Establish the prosecution case through the defence witnesses

Answer 5

B Elicit testimony that supports the case of the party calling that witness

Question 6

Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offence:

A sexual violation by rape

B false oaths

C blackmail

D deception

Answer 6

B False oaths

Question 7

A witness is eligible to give evidence if:

A they can be required to give evidence against their will for the prosecution

B they are not married to the defendant

C they are lawfully able to give evidence on behalf of both prosecution and defence

D they can be required to give evidence against their will for the defence

Answer 7

C they are lawfully able to give evidence on behalf of both prosecution and defence

Question 8

Which is not an example where judicial notice can be taken?

A the date of birth of a complainant under 16

B Unknown

C Unknown

D Unknown

Answer 8

A the date of birth of a complainant under 16

Question 9

An oath and affirmation may be taken by:

A all witnesses involved in a proceeding

B only witness under 65 years of age involved in a proceeding

C any witness 16 years and over involved in a proceeding

D any witness 12 years and over involved in a proceeding

Answer 9

D any witness 12 years and over involved in a proceeding

Question 10

Where an expert is called to give specialised evidence:

A the judge may take judicial notice of the experts qualifications

B the judge may take judicial notice of the experts qualifications only where the witness has appeared before them previously

C the expert must demonstrate to the court that he/she has the qualifications to be deemed an expert

D the expert must prove that he/she acquired their specialised knowledge professionally

Answer 10

C the expert must demonstrate to the court that he/she has the qualifications to be deemed an expert

Question 11

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

Answer 11

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

Question 12

Define a hostile witness pursuant to Section 4 of the Evidence Act 2006?

Answer 12

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

Question 13

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

Answer 13

• Relevance
• Reliability
• Unfairness
• Public Interest

Question 14

(a) What is a leading question? (b) What is the general rule in relation to leading questions?

Answer 14

A -a leading question as one that directly or indirectly suggests a particular answer to the question

B -The general rule is that leading questions may not be asked during examination-in-chief or re-examination

Question 15

Briefly explain what a “voir dire” is

Answer 15

A voir dire is:

• A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
• It is conducted without a jury being present.

Question 16

Define the following terms:

1. Witness
2. facts in issue

Answer 16

Witness:

• This is a person who gives evidence and is able to be cross-examined in a proceeding.
• This includes a person who is actively engaged in the process of giving evidence, and may also include a person who has previously given evidence in the proceeding.

Facts in Issue: are those which:

• the prosecution must prove in 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 he or she carries the burden of proof.

Question 17

Explain what is meant by “burden of proof”

Answer 17

Burden of proof means:

Whoever asserts something must prove it

• In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt.
• In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.

Question 18

What does “propensity evidence” mean?

Answer 18

Propensity evidence 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.

Question 19

List four categories of privilege

Answer 19

• Privilege against self-incrimination
• Marital privilege
• Professional confidences
• Public policy
• Police informants

Question 20

What is the definition of a hearsay statement?

Answer 20

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”

Question 21

Before giving evidence in court, witnesses may refresh their memory from:

A Their original statement

B Their deposition

C Either of the above

D None of the above

Answer 21

C

Question 22

Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding?

A Any person who is eligible to give evidence is compellable

B a married person whilst eligible is not compelled to give evidence against their spouse

C any person who is eligible may not be compellable

D a 12 year old child is eligible but not compellable to give evidence in a proceeding

Answer 22

A Any person who is eligible to give evidence is compellable

Question 23

A person is unavailable as a witness when:

A The person is overseas and can’t be contacted

B The person was not at work when the police went to pick the person up

C The phone number used to contact the person is no longer in service

D The person refuses to go to court

Answer 23

A The person is overseas and can’t be contacted

Question 24

A presumption of law:

A Is always rebuttable

B May be rebuttable or irrebuttable

C Is always rebuttable or irrebuttable

D May be subject to judicial notice

Answer 24

B May be rebuttable or irrebuttable

Question 25

When giving evidence in court, you should address the judge as:

A Your worship

B Using the judges title and surname, e.g. Judge Smith

C Your honour or Sir/Ma’am

D Your worship or Sir/Ma’am

Answer 25

C Your honour or Sir/Ma’am

Question 26

The Court has a discretion to include propensity evidence against a defendant, if:

A The prejudicial effect of the evidence outweighs its probative value

B It shows that the accused is of a criminal disposition and so more likely to have committed the crime

C It will dispose the jury against the accused

D The probative value of the evidence outweighs its prejudicial effect

Answer 26

D The probative value of the evidence outweighs its prejudicial effect

Question 27

In relation to privilege of medical practitioners, “protected communication” refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient:

1. Who is suffering for a drug dependency
2. Who has any other condition or behaviour that manifests itself in criminal conduct
3. Who has provided information concerning their family
4. Who is suffering from a mental illness

A 1 only is correct

B 2 and 3 are correct

C 3 and 4 are correct

D 1 and 2 are correct

Answer 27

D 1 and 2 are correct

Question 28

A witness is deemed to be hostile when:

A They give different evidence from what is expected

B Refuses to answer questions or deliberately withholds information

C They are an “unfavourable witness” to the party calling them

D The prosecution provides grounds for disbelieving the witnesses current testimony

Answer 28

B Refuses to answer questions or deliberately withholds information

Question 29

It is not necessary in court to prove “uncontroverted facts.” These are admitted as:

A Judicial notice

B Presumptions of fact

C Admissions for the purpose of trial

D Presumptions of law

Answer 29

A Judicial notice

Question 30

Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must…

A Be that of an “expert”

B Comprise “expert evidence”

C Offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding

D All of the above

Answer 30

D All of the above

Question 31

The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. What are the two exceptions to this rule?

Answer 31

There are exception to the general principle, which means that in some cases the burden of proof reverses and falls on the defendants:

• Where there exist specific statutory exceptions
• Pulic interest offences/ strict liability offences

Question 32

The fundamental condition for the admissibility of evidence is that it must be relevant. What is the two prong test of relevance? Describe each prong.

Answer 32

Materiality and probativeness

• Materiality asks whether the evidence is offered on a matter of fact at issue in the case (of consequence to the determination of the proceeding – s7(3))
• Probativeness asks whether the evidence has a logical “tendency to prove or disprove” the material proposition on which it is offered (s7(3))

Question 33

Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters.

Answer 33

• Lack of veracity on the part of the person when under a legal obligation to tell the truth
• That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
• Any previous inconsistence statements made by the person
• Bias on the part of the person
• A motive on the part of the person to be untruthful

Question 34

Define the following terms:

• Circumstantial evidence
• Statement

Answer 34

Circumstantial evidence is:

Is 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.

A statement 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

Question 35

Once the judge has granted an application to treat a witness as hostile, that witness
may be:
(1) Asked leading questions
(2) Asked questions as to prior inconsistent statements
(3) asked any question whatsoever whether relevant to the matter under inquiry or
not
(4) Tested on such matters as the accuracy of his / her memory and perception

Which are correct?

A -1 ony

B - 1 AND 2

C 4 and 1

D 1,2 & 4

Answer 35

D- 1, 2 and 4 only are correct

Question 36

Why is opinion evidence unreliable?

Answer 36

• where a witness offers a bare opinion it holds little probative weight
• there is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence.
• The opinion evidence could confuse the tribunal of fact and prolong proceedings.
• a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible

Question 37

Explain the section 8 test?

Answer 37

The s 8 test involves balancing the probative value of evidence against the
risk that it will:
• have an “unfairly prejudicial effect on the proceeding” or
• “needlessly prolong the proceeding”

Question 38

List the reasons why s85, EA 06 ‘Leading Q’s’ are not permitted.

Answer 38

• There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

Question 39

List the exclusive rules of evidence?

Answer 39

• Veracity
• Propensity
• Hearsay
• Opinion
• Identification
• Improperly obtained evidence

Question 40

When giving evidence in court, how would you refer to your notebook?

Answer 40

• Ask the court for permission
• Introduce the material properly
• Defence and the jury are entitled to view your notebook, seal off unrelated entries
• You are only allowed to refresh your memory, do not read the whole entry unless you have permission

Question 41

What are the exceptions to the general prohibition on previous consistent statement?

Answer 41

• responds to a challenge to the witness’s veracity or accuracy
• forms an integral part of the events before the court; or
• consists of the mere fact that a complaint has been made in a criminal case