Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

CIB 009 - Evidence - 01/23 - NHDJ27 > Evidence (condensed) > Flashcards

Evidence (condensed) Flashcards

1
Q

Define evidence

A

The whole body of material which a court or tribunal may take into account in reaching their decision.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the general rule of evidence? (Must know)

A

That all facts in issue and facts relevant to the issue must be proved by evidence.

The two main exceptions to the general rule are when no evidence needs to be given of facts because:

  • judicial notice is taken
  • the facts are formally admitted.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

When is evidence admissible?

A

If it is legally able to be received by the court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

The weight of evidence

A

Its value in relation to the facts in issue.

The “weight” is the degree of probative force that can be accorded to the evidence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

How evidence may be given in a proceeding - In the ordinary way

A

Either orally in a courtroom in the presence of a judge (or judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge; or in an affidavit filed in court or by reading a written statement in a courtroom.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

How evidence may be given in a proceeding - in an alternative way

A

In the courtroom but unable to see the defendant or other person, outside the courtroom, or by video recording made before the hearing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How evidence may be given in a proceeding - in any other way

A

Provided for by the Evidence Act 2006 or any other relevant enactment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is a statement?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Who is a witness?

A

A person who gives evidence in a proceeding and is able to be cross-examined.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is a hearsay statement?

A

This is a statement made by a person other than a witness, and is offered in evidence in the proceeding to prove the truth of its contents.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is veracity?

A

This is the disposition of a person to refrain from lying, whether generally or in a proceeding.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is propensity evidence?

A

This 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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is direct evidence?

A

This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is circumstantial evidence?

A

This 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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the Woolmington principle?

A

The presumption of innocence - the burden of proof lies clearly with the prosecution in relation to all elements of the offence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What are the exceptions to the Woolmington principle?

A
  • The defence of insanity
  • Express statutory exceptions
  • Public welfare regulatory offences.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Standard of proof

A

Prosecution - beyond reasonable doubt
Defence - balance of probabilities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

R v Wanhalla - beyond reasonable doubt

A

“An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

R v Wanhalla - presumption of innocence meaning

A

“The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is a ‘reasonable doubt’?

A

An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is the balance of probabilities?

A

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not. If the probabilities are equal, the burdan is not discharged.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

RRFCEL

What are the 6 objectives set out in section 6 of the Evidence Act 2006 and what is the purpose?

A

(a) Providing for facts to be established by the application of logical Rules;

(b) Providing rules of evidence that recognise the importance of the Rights affirmed by BORA;

(c) Promoting Fairness to parties and witnesses;

(d) Protecting rights of Confidentiality and other important public interests;

(e) Avoiding unjustifiable Expense and delay;

(f) Enhancing access to the Law of evidence.

Purpose - To help secure the just determination of proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What makes good evidence - facts that prove the charge

A

The facts must prove the elements of the charge, and the evidence should be made up of facts that prove the charge.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What makes good evidence - facts in issue

A

Facts which in law need to be proven to succeed with the case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What makes good evidence - circumstantial evidence

A

A fact from which the judge or jury may infer the existence of a fact in issue.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Judicial notice

A

When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the facts exist.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Facts formally admitted

A

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What are presumptions of law?

A

Inferences that have been expressly drawn by law from particular facts.

Presumptions of law may be either conclusive or rebuttable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What are presumptions of fact?

A

Those facts that the mind naturally and logically draws from the given facts.

For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Are presumptions of facts conclusive or rebuttable?

A

Presumptions of fact are simply logical inferences, and so are always rebuttable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What three principles of evidence law does the judge refer to when determining whether or not evidence if admissible?

A
  • Relevance
  • Reliability
  • Unfairness
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

EA2006; S7 - Fundamental principle that relevant evidence be admissible

A

S7 - Fundamental principle that relevant evidence be admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is -
(a)/(b) Inadmissible or excluded under this act or any other act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

When will evidence usually be excluded?

A

A lack of reliability, fairness, public interest, or a combination of these factors.

Relevance is therefore a necessary, but not a sufficient, condition of admissibility under the Evidence Act 2006.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Under S8 of the Evidence Act, on what two grounds would a judge exclude evidence?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What other matter must the judge take into account when determining whether the probative value of evidence is outweighed by the risk that the evidence would be unfairly prejudicial to the defendant?

(EA06; S8(2))

A

The right of the defendant to offer an effective defence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

How may a judge deal with a question regarding the admissibility of evidence?

(Provisional admissibility - EA06; S14)

A

The judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What is a ‘chambers hearing’ or ‘hearing in chambers’?

(EA06; S15)

A

This governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

SES

List some rules that limit the use to which evidence can be put.

A
  • S27 - Controls the use of pre-trial Statements of defendants and co-defendants
  • S31 - Forbids the prosecution from relying on certain Evidence offered by defendants in a criminal case
  • S32 - Forbids the fact-finder from using a criminal defendant’s pre-trial Silence as evidence of guilt.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

HIP VOI

What six things do the exclusive rules of evidence deal with?

A
  • Hearsay
  • Identification
  • Propensity
  • Veracity
  • Opinion
  • Improperly obtained evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

What is veracity?

A

A disposition to refrain from lying.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What is propensity

A

A tendancy to act in a particular way.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

When may evidence around veracity be offered in a criminal or civil proceeding?

A

EA06; S37(1) -
If the evidence is substantially helpful in assessing that person’s veracity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

What five matters may the judge consider when deciding whether or not the evidence proposed to be offered is substantially helpful in determining a person’s veracity?

LCIBU

A

EA06; S37(3) -
(a) A Lack of veracity on the part of the person when under a legal obligation to tell the truth

(b) That the person has been Convicted of 1 or more offences that indicate a propensity for a lack of veracity

(c) Any previous Inconsistent statements made by the person

(d) Bias on the part of the person

(e) A motive on the part of the person to be Untruthful.

LCIBU

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

In what two instances is substantial helpfulness not a sufficient test?

A
  • Where the prosecution wish to offer evidence about the defendant’s veracity
  • Where a defendant offers veracity evidence about a co-defendant
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Can a defendant offer evidence about their veracity in a criminal proceeding?

A

EA06; S38 (1) - Yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

When may the prosecution offer evidence about a defendant’s veracity?

A

EA06; S38(2) -
(a) The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and

(b) The Judge permits the prosecution to do so.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Before the judge permits the prosecution to offer evidence about the defendant’s veracity, what three matters may they take into account?

ETE

A

EA06; S38(3) -
(a) The Extent to which the defendant’s veracity or the veracity of a prosecution witness has been put to issue in the defendant’s evidence;

(b) The Time that has elapsed since any conviction about which the prosecution seeks to give evidence;

(c) Whether any evidence given by the defendant was Elicited by the prosecution.

ETE

48
Q

What is/is not propensity evidence?

(EA06; S40 - Propensity rule)

A

Propensity evidence means evidence of a person’s propensity to act in a particular way or to have a particular state of mind and includes evidence of acts, omissions, events, or circumstances with which the person is alleged to have been involved.

It does not include evidence of an act or omission that is one of the elements of the offence for which the person is being tried or the cause of action in the civil proceeding in question.

49
Q

What does propensity evidence include?

A
  • Propensity as to actions
  • Propensity as to state of mind
50
Q

What is not propensity evidence?

A
  • Evidence of an act or omission that is one of the elements of the offence for which the person is being tried
  • Evidence that is solely or mainly about veracity
51
Q

What is the general rule regarding propensity evidence?

A

The general position is that a party may offer propensity evidence about any person.

52
Q

FOR MENSA

Matters the judge will consider when assessing the probative value of propensity evidence

A

EA06; S43(3) -
(a) - the Frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred;

(b) - the cOnnection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances that constitute the offence for which the defendant is being tried.

(c) - the extent of the similaRity between previous acts and those currently alleged.

(d) - the nuMber of pEople making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried.

(e) - whether allegations may be the result of collusioN or suggestibility.

(f) - do the acts share similAr unusual features?

FOR MENSA = Frequency/cOnnected/similaRity/
nuMber/pEople/collusioN/SimilAr

53
Q

What is hearsay evidence?

A

A statement made by a person other than a witness, and is offered in evidence to prove the truth of its contents.

54
Q

General admissibility of hearsay

A

EA06; S18- General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

55
Q

What is the rationale for the rule against hearsay?

A
  • Where the maker of the statement is not called as a witness, there is no opportunity to cross-examine them.
  • The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
  • There is the danger that witnesses will make mistakes about the meaning or content of statements made by other people.
56
Q

NCMVA

EA06; S16(1) - List of matters to consider when determining whether circumstances relating to the making of the statement provide reasonable assurances that the statement is reliable

A

(a) The Nature of the statement; and
(b) The Contents of the statement; and
(c) The circumstances relating 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.

57
Q

DOUC-N

In relation to hearsay, when is a person considered to be “unavailable” as a witness? (EA06; S16(2)

A

EA06; S16(2) -
(a) Dead; or
(b) Outside NZ and it is not reasonably practicable for him or her to be a witness; or
(c) Unfit to be a witness because of age or physical or mental condition; or
(d) Cannot with reasonable diligence be identified or found; or
(e) Not compellable to be give evidence.

58
Q

In what circumstances would a hearsay statement be admissible in business records? (EA06; S19)

A

EA06; S19 -

(a) If the person who supplied the information is unavailable as a witness; or

(b) If the Judge considers no useful purpose would be served by requiring that person to be a witness; or

(c) If the Judge considers that undue expense or delay would be caused if that person were required to be a witness.

59
Q

What is an opinion?

A

A statement of opinion that tends to prove or disprove a fact.

60
Q

What is the rationale behind the opinion rule?

A
  • Where a witness offers a bare opinion it holds little probative weight
  • 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.
61
Q

General admissibility of opinions (EA06; S24)

A

S24 - General admissibility of opinions
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

62
Q

Under S24, what two basic criteria must the statement of opinion fulfil in order to be admissible?

A
  1. Opinion must be the only way in which to effectively communicate the information to the finder of fact;
  2. The witness must be stating an opinion from something personally perceived.
63
Q

When would opinion evidence offered by an expert be admissible in a proceeding?

(EA06; S25(1))

A

If the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

64
Q

What three criteria must opinion evidence comply with for it to be admissible?

A
  • Be that of an ‘expert’
  • Comprise ‘expert evidence’; and
  • Offer substantial help to the fact finder in understanding other evidence or ascertaining any fact of consequence to the proceeding.
65
Q

According to S4, who is an ‘expert’ and who determines whether the expert is properly qualified to testify?

A

‘Expert’ - Someone with specialised knowledge or skill based on training, study or experience.

The judge determines whether the expert witness is properly qualified to testify.

66
Q

Opinion evidence is admissible in circumstances where it is likely to offer substantial help to the fact-finder in … (EA06; S25(1))

A
  • Understanding other evidence; or
  • In ascertaining any fact that is of consequence in the deterimination of the proceeding.
67
Q

The conduct of experts

A
  • An expert must state his or her qualifications when giving evidence
  • The facts, matters and assumptions on which opinions are expressed must be stated explicity
  • The reasons for opinions given must be stated explicitly
  • The expert must not give opinion evidence outside his or her area of expertise.
68
Q

HIP VOI

What six matters do the exclusive rules of evidence deal with?

A
  1. Hearsay
  2. Identification
  3. Propensity
  4. Veracity
  5. Opinion
  6. Improperly obtained evidence.
69
Q

What two classes of evidence is character evidence divided into?

A
  1. Veracity
  2. Propensity
70
Q

ARRT

Which four matters must be verified before a person is served with a summons to appear in court?

A
  • Whether they are Allowed to give evidence
  • Whether they are Required to give evidence
  • Whether they can Refuse to give evidence
  • What Type of witness they will be
71
Q

What is an ‘eligible’ witness?
What is a ‘compellable’ witness?

A

Eligible - if they are lawfully able to give evidence on behalf of both the prosecution and the defence.

Compellable - if they can be required to give evidence against their will for both prosecution and defence.

72
Q

Under what circumstances would a co-defendant be a compellable witness?

(S73 - Compellability of defendants and associated defendants in criminal proceedings)

A

When they are being tried separately from the defendant or their proceedings have been determined.

73
Q

Who is an ‘associated defendant’?

A

EA06; S73(4) -
A person against whom a prosecution has been instituted for—
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; or
(b) A connected offence for which the defendant is being prosecuted for.

74
Q

Who is not compellable to give evidence?

A
  • A judge in respect of their conduct
  • The Sovereign
  • Governer-general
  • Sovereign or Head of State of a foreign country.
75
Q

When is a bank officer not compelled to produce banking records?

A

If the contents can be proven under the “business records” exception to the hearsay rule (S19).

76
Q

Privilege explained

A

The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

77
Q

LM-MP-S

Privilege types

A
  • Communications with Legal advisers
  • Communications with Ministers of religion
  • Information obtained by Medical practitioners and clinical Psychologists
  • Solicitors’ trust accounts
78
Q

Other privileges

A
  • Privilege against self-incrimination
  • Informer privilege
79
Q

VICIS

List four instances where communications with legal advisors would be privileged

A
  1. The privilege is Vested in the person seeking or receiving the legal services
  2. The communication must be Intended to be Confidential
  3. The fact that the communication was Inadvertently overheard by others does not necessarily abrogate the privilege.
  4. The communication must be made for the purposes of obtaining or giving legal Services.
80
Q

POP-LAOP-IPLA-IRPLAP

What can privilege consist of?

A
  • Communication between the Party and any Other Person
  • Communication between the party’s Legal Adviser and any Other Person
  • Information compiled or prepared by the Party or the party’s Legal Adviser
  • Information compiled or prepared at the Request of the Party, or the party’s Legal Adviser, by any other Person.
81
Q

CIO

If a person has a claim of privilege, what do they have the right to refuse to disclose?

(S53 - effect and protection of privilege)

A

(a) The Communication; and

(b) The Information, including any information contained in the communication; and

(c) Any Opinion formed by a person that is based on the communication or information.

82
Q

In what circumstances would there be a privilege between a person and a minister of religion (S58)?

A

If the communication was:
(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.

83
Q

According to S58, who is a minister of religion for the purposes of privilege?

A

If the person has a status within a church or other religious or spiritual community that requires or calls for that person -
(a) to receive confidential communications of the kind described in ss(1); and
(b) to respond with religious or spiritual advice, benefit, or comfort.

84
Q

S59 - Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists

A
  • Applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct
  • Does not apply to a person who has been required by order of a Judge, or by any other lawful authority, to submit themselves to a medical practitioner or clinical psychologist for any examination, test, or for any other purpose.
85
Q

What is self-incrimination?

A

The provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.

86
Q

CP-PSPD-PPOIC-IIO

When would S60 (privilege against self-incrimination) apply?

A

If a person is required to provide specific information -
(i) in the Course of a Proceeding; or
(ii) by a Person exercising a Statutory Power or Duty; or
(iii) by a Police officer or other person holding a Public Office in the course of an Investigation into a Criminal offence; and
(b) the Information would be likely to Incriminate the person under NZ law for an Offence punishable by a fine or imprisonment.

87
Q

Under S62, what must a person claiming privilege against self-incrimination in a court proceeding do?

A

They must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information.

88
Q

What does an informer have a privilege in respect of?

A

The informer’s identity

89
Q

Informer defined

A

Someone who has supplied, either gratuitously or for reward, information to an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that their identity will not be disclosed.

90
Q

PFFT

Which offences require corroborative evidence?

A
  • Perjury
  • False oaths
  • False statements or declarations
  • Treason
91
Q

Although not expressly defined in the Evidence Act, what is corroboration?

A

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

92
Q

Under what circumstances must a Judge not warn a jury about the absence of corroboration of a child witness?

(S125 - Judicial directions about children’s evidence)

A

If the Judge would not have given that kind of a warning had the complainant been an adult.

93
Q

DIEE

What is the Judge’s role in a jury trial?

A

He or she must:

  • 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 applying to the issues at hand
  • Ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
94
Q

Oaths and affirmations - witnesses under 12 years of age

A

Witnesses under 12 years of age must:

  • Be informed by the Judge of the importance of telling the truth and not telling lies; and
  • After being given that information, make a promise to tell the truth, before giving evidence.
95
Q

In a proceeding, who may comment on the fact that the defendant did not give evidence at their trial?

(EA06; S33 - Restrictions on comment on defendant’s right of silence at trial)

A
  • Defendant
  • Defendant’s counsel
  • Judge
96
Q

What is the purpose of evidence in chief?

A

To elicit testimony that supports the case of the party calling that witness.

97
Q

May leading questions be asked during evidence in chief or re-examination?

A

No.

98
Q

What is a leading question?

A

One that directly or indirectly suggests a particular answer to the question.

99
Q

YRM

What is the reasoning around leading questions producing unreliable evidence?

A
  • People might say, “Yes” even if those events didn’t quite happen.
  • Answers elicited from leading questions Reduce the spontaneity and genuineness of testimony.
  • Leading questions can result in the Manipulation or construction of the evidence through collusion between counsel and the witness.
100
Q

What is the goal of evidence in chief and re-examination?

A

To draw out the witness’s own recollections and to permit the trier-of-fact to judge the quality of the witness’s testimony.

101
Q

ICE

When would leading questions be permitted? (EA06; S89)

A
  • When the question relates to Introductory or undisputed matters; or
  • The question is put with the Consent of all the other parties; or
  • The Judge, in Exercise of the Judge’s discretion, allows the question.
102
Q

IF-EYDL-H

Judge’s discretion to allow leading questions - (S89(1)(c)

A
  • To direct the witness’s attention to the subject of Identification evidence.
  • To jog a witness’s memory about some Fact or event in issue.
  • To assist counsel in Eliciting the evidence in chief of very Young people, people who have Difficulty speaking English, and people who are of Limited intelligence
  • Where the witness has been declared Hostile.
103
Q

LSM

What is the process if a witness wishes to consult a document whilst giving evidence?

A
  • The Leave of the Judge must be obtained
  • The document must be Shown to every other party in the proceeding
  • The document must have been Made when their memory was fresh.
104
Q

RFC

When would a previous statement of a witness that is consistent with the witness’s evidence be admissible?

A

If the statement -
(a) Responds 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 invention on the part of the witness; or
(b) Forms an integral part of the events before the court; or
(c) Consists of the mere fact that a complaint has been made in a criminal case.

105
Q

LAIV

If a witness has been declared hostile, what may be asked of them?

A
  • Leading questions
  • Questions designed to probe the Accuracy of memory and perception
  • Questions as to prior Inconsistent statements
  • Other challenges to Veracity, including evidence from other witnesses.
106
Q

VIR

Hostile witness defined

A
  • Exhibits 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 an intention to be unhelpful to the party who called the witness; or
  • Refuses to answer questions or deliberately withholds evidence.
107
Q

The two purposes of cross-examination

A
  • To elicit information supporting the case of the party conducting the cross-examination
  • To challenge the accuracy of the testimony given in evidence-in-chief
108
Q

SRCP

Cross examination duties

A

The duty to cross examine will arise under the Act when:

  • The cross examination deals with Significant matters in the proceeding; and
  • The matters are “Relevant” and “in issue” in the proceeding; and
  • The matters “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”
109
Q

AM-PIPPI-LCBRB-NP-HQPE

List some matters the Judge will take into account when determining what questions are unacceptable to ask the witness.

A

(a) The Age or Maturity of the witness; and
(b) Any Physical, Intellectual, Psychological, or Psychiatric Impairment of the witness; and
(c) The Linguistic or Cultural Background or Religious Beliefs of the witness; and
(d) The Nature of the Proceeding; and
(e) In the case of a Hypothetical Question, whether the hypothesis has been or will be Proved by any other Evidence in the proceeding.

110
Q

FCPJ

When would evidence in rebuttal be admitted at court?

A

If the evidence:

  • Relates to matters that are purely Formal
  • Relates to a matter arising out of the Conduct of the defence, the relevance of which could not reasonably have been foreseen
  • Was not available or admissible before the Prosecution’s case was closed; or
  • Is required to be admitted in the interests of Justice for any other reason.
111
Q

UWLI

List four judicial warnings

A
  1. Judicial warnings about Unreliable evidence
  2. Judicial directions about certain Ways of giving evidence
  3. Judicial warnings about Lies
  4. Judicial warnings about Identification evidence.
112
Q

HS-MF-D-C10

What kind of evidence must a Judge consider whether to give a warning about?

A

(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 they were detained in a place of Detention;
(e) Evidence about the conduct of the defendant if that Conduct is alleged to have occurred more than 10 years previously.

113
Q

A-NK-F-A-A-AM

List six matters to address when giving evidence as O/C case

A
  1. Take care that you actually Answer the question being asked
  2. Say you do Not Know, rather than guess
  3. Do not be Flippant
  4. Address the Judge as “Your Honour” or “Sir/Ma’am”
  5. Address the prosecutor and defence as “Sir/Ma’am”
  6. Advise the Judge of any Mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.
114
Q

PIVR

What is the process if you need to refer to your notebook when giving evidence?

A
  • Ask the court’s Permission
  • Introduce the material properly
  • Seal off other entries to prevent defence counsel from Viewing them
  • Remember that you are only allowed to Refresh your memory.
115
Q

E-PG-PP-DO-DP-PC-DC-JS-JD

Summarise the conduct of a jury trial

A
  • The jury is Empannelled and a foreperson selected
  • The Prosecution Gives their opening address
  • The Prosecution case is Presented
  • The Defence gives their Opening address
  • The Defence case is Presented
  • The Prosecution makes their Closing statement
  • The Defence makes their Closing statement
  • The Judge Sums up
  • The Jury retires to Decide the verdict
116
Q

RSV

Three factors used to determine the weight of evidence

A
  • The extent to which it is Relevant to those facts
  • The extent to which it is Supported by other evidence
  • The Veracity of the witness.

CIB 009 - Evidence - 01/23 - NHDJ27 (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions