Evidence 'B' Files Part 2

Question 1

What are presumptions of Law?

What are presumptions of fact?

Answer 1

• Presumptions of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable
• Presumptions of fact are those that the mind naturally and logically draw from the facts given

Question 2

The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable.

According to section 16(1) of the Evidence Act 2006, circumstances in relation to a statement by a person who is not a witness, include…

Answer 2

Section 16(1) Evidence Act 2006 defines “circumstances”. Circumstances in relation to a statement by a person who is not a witness, include –

A The nature of the statement, and

B The contents of the statement, and

C The circumstances that relate to the making of the statement, and

D Any circumstances that relate to the veracity of the person, and

E Any circumstances that relate to the accuracy of the observation of the person

Question 3

What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by sections 24 & 25 of the Evidence Act 2006?

Answer 3

Justifications for the rule derive from this rationale:

• Where a witness offers a bare opinion it hold little probative weight
• There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence.
• It may be that the evidence would confuse the tribunal of fact and prolong proceedings
• A witness’s evidence of opinion may be based on some other evidence which, if stated expressly, would be inadmissible – for example where an opinion is based largely on propensity evidence.

Question 4

A - Describe what privilege is in relation to the giving of evidence

B – Name two privileges outlined in the Evidence Act 2006

Answer 4

A privilege in relation to the giving of evidence is:

• the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.

Any two of the following:

• Privilege for communications with legal advisors – s54
• Privilege and solicitors trust accounts – s55
• Privilege for preparatory materials for proceedings – s56
• Privilege for settlement negotiations or mediation – s57
• Privilege for communications with ministers of religion – s58
• Privilege for information obtained by medical practitioners and clinical psychologists – s59
• Privilege against self-incrimination – s60
• Informer privilege – s64

Question 5

List four of the functions of the judge’s role in a trial by jury:

Answer 5

• Decide all questions concerning the admissibility of evidence
• Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
• Explain and enforce the general principles of law that are applicable to the point at issue
• Determine whether there is any evidence that is fit to be submitted to the jury for its considerationTo

Question 6

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 conducting the cross examination

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

D Establish the prosecution case through the defence witnesses

Answer 6

B Elicit testimony that supports the case of the party conducting the cross examination

Question 7

What is the general rule in relation to ‘establishing facts?’

A All facts in issue must be proved by evidence

B All facts relevant to the issue must be proved

C All facts in issue and facts relevant to the issue must be proved by evidence

D All facts in issue and facts that are formally admitted must be proved by the court

Answer 7

C All facts in issue and facts relevant to the issue must be proved by evidence

Question 8

It is not necessary in court to prove facts such as ‘the season of summer in New Zealand is over the period of December to February”, these facts are admitted as:

A Presumptions of fact

B Admissions for the purpose of trial

C Presumptions of law

D Judicial notice

Answer 8

D

Question 9

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 9

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

Question 10

In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?

Answer 10

The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, because:

• Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
• Juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question
• There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people
• The danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be a ‘reasonable assurance’ of reliability, which means that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to weight.

Question 11

What is a leading question?

Give two exceptions to the general rule concerning leading questions

Answer 11

A Is one that directly or indirectly suggests a particular answer to the question

Sec4 EA06

B Any two of the following:

• Introductory or disputed facts
• Identification
• Assisting memory
• Contradiction
• Hostile witnesses

Question 12

Define the following terms:

• Direct evidence
• Admissible evidence

Answer 12

A Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.

B Admissible evidence: evidence is admissible if it is legally able to be received by a court

Question 13

When is a witness deemed to be unavailable as a witness according to Section 16(2) of the Evidence Act 2006?

Answer 13

• Dead
• Out of the country
• Unfit (Age, mental or physical disability)
• Cannot with reasonable diligence be identfied or found
• Not compellable

Question 14

Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?

Answer 14

The duty to cross-examine will therefore arise under the act when four conditions are present:

• The topic of cross-examination must deal with ‘significant matters’ in the proceeding
• The matters must be ‘relevant’ and ‘in issue’ in the proceeding
• The matters must ‘contradict the evidence of the witness’ and
• The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters’.

Question 15

What are the three exceptions to the general prohibition on previous consistent statement (Section 35 of the Evidence Act 2006)?

Answer 15

A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary:

• To respond to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or on a claim of recent invention on the part of the witness
• Forms an integral part of the event before the court, or
• Consists of a mere fact that a complaint has been made in a criminall case

Question 16

There are two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law. Name these two types of offences:

Answer 16

there are two types of offence

1. perjury and related offences (s108, 110 and 111 Crimes Act 1961) and
2. treason (s73 Crimes Act 1961)

Question 17

In relation to non-expert opinion, in order to be admissible under s24, the statement of opinion must fulfil to basic criteria. Name them:

Answer 17

In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:

• Opinion must be the only way in which to effectively communicate the information to the finder of fact
• The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 18

Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.

Answer 18

The veracity and propensity rule do not apply to bail or sentencing hearings except when:

• The evidence relates directly or indirectly to the sexual experience of the complainant with any person other that the defendant
• The evidence relates directly or indirectly to his or her reputation in sexual matters.

Question 19

What are the types of questions that can be asked once a witness has been declared hostile?

Answer 19

The witness may be: Questions:

• Leading questions
• Designed to probe the accuracy of memory and perception.
• Prior inconsistent statements
• Challenged with regard to how they know the facts about that which they are testifying

Question 20

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 20

D- 1, 2 and 4 only are correct

Question 21

Why is opinion evidence unreliable?

Answer 21

• 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 22

Section 8 of the Evidence Act 2006 relate to fairness and general exclusion. What is the provision set out in section 8?

What is the section 8 test?

Answer 22

8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is
outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) (the Judge must take into account the right of the defendant to offer an effective defence.)

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 23

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

Answer 23

• 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 24

1. List the exclusive rules of evidence?
2. In deciding whether evidence is admissible what are the key principles of evidence law?

Answer 24

1. Veracity; Propensity; Hearsay; Opinion; Identification; Improperly obtained Evidence
2. Relevance; Reliability and Fairness (Public interest is helpful in testing relevance)

Question 25

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

Answer 25

• 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 26

1. When are leading questions permitted under Sec 89(1) ?
2. What circumstances are leading questions allowed under Sec 89(1)(c)?

Answer 26

 the question relates to introductory or undisputed matters, or
 the question is put with the consent of all other parties, or
 the judge, in exercise of the Judges discretion, allows the question

Question 27

When are an offenders statement not admissable?

Answer 27

Sec 73 (2)

(a) An associated defendant is not compelable to give evidence for or against a defendant; or
(b) the proceeding against the associated defendant has been determined (Stayed, withdrawn, dismissed)

Question 28

State Four types of Unreliable Evidence

Sec 122 EA 06

Answer 28

(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 29

Define Corroboration

Answer 29

“Corroboration” is not defined in the Act.

It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.

Question 30

Define Expert Witness

Answer 30

S4, E.A 2006 –

“A person who has specialized knowledge or skill based on training, study or experience.” The judge must determine whether the expert witness is properly qualified to testify

Question 31

What conditions would deteremine if Relevant Evidence be in-admissable?

Answer 31

7 Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.

Question 32

The case of a Child victim of an Indecent Assault has no corroborating evidence. In relation to Judicial warnings what must the judge consider?

Answer 32

125 Judicial directions about children’s evidence
(1) In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of a warning had the complainant been an adult.

Question 33

The defendant choose his right to silence. What considerations would the judge take:

Answer 33

Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

Question 34

In what situations would a defendants statement be inadmissable?

Answer 34

Unfair and Improper means

Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.