Evidence Module

Question 1

What is the definition of evidence?

Answer 1

Evidence is the term for the whole body of material which a court or tribunal may take into account in reaching their decision.

Evidence may be in oral, written or visual form.

Question 2

What is the definition of admissible evidence?

Answer 2

Evidence is admissible if it is legally able to be received by the court. If evidence cannot be received, it is inadmissible.

Question 3

What is the definition of relevance?

Answer 3

Evidence is relevant ‘if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding’.

Question 4

What is the definition of facts in issue?

Answer 4

Facts in issue are those which:

• the prosecution must prove to establish the elements of the offence, or
• the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof

Question 5

What is the definition of exclusionary rules?

Answer 5

These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).

Question 6

What is the definition of weight of evidence?

Answer 6

The ‘weight’ of evidence is it’s value in relation to the facts in issue.

The ‘weight’ is the degree of probative force that can be accorded to the evidence.

Question 7

What is the definition of ‘offer evidence’?

Answer 7

Evidence must be elicited before it is ‘offered’: merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition.

Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross-examination of a witness called by another party.

Question 8

What is the definition of ‘giving evidence’?

Answer 8

Giving evidence is included in offering evidence: a witness ‘gives evidence’; a party ‘offers evidence’. A party who testifies both gives and offers evidence.

Question 9

What are the three different ways of giving evidence?

Answer 9

In a proceeding, evidence may be given:

• in the ordinary way either orally in a courtroom or in an affidavit filed in court or by reading a written statement in a courtroom
• in an alternative way - in the courtroom but unable to see the defendant or other person; outside the courtroom (AVL); or by video recording made before the hearing
• in any other way provided for by the Evidence Act 2006 or any other relevant enactment

Question 10

What is the definition of incriminate?

Answer 10

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

Question 11

What is the definition of a proceeding?

Answer 11

This means a proceeding conducted by a court, and any application to a court connected with a proceeding.

Question 12

What is the definition of a statement?

Answer 12

This 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 13

What is the definition of witness?

Answer 13

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

Question 14

What is the definition of hearsay statement?

Answer 14

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

Question 15

What is the definition of veracity?

Answer 15

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

Question 16

What is the definition of propensity?

Answer 16

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 17

What is the definition of direct evidence?

Answer 17

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

Question 18

What is the definition of circumstantial evidence?

Answer 18

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.

Question 19

What is the definition of ‘circumstances’ under s16(1) of the Evidence Act 2006?

Answer 19

In relation to a statement by a person who is not a witness, include -

(a) the nature of the statement
(b) the contents of the statement
(c) the circumstances that relate to the making of the statement
(d) any circumstances that relate to the veracity of the person
(e) any circumstances that relate to the accuracy of the observation of the person

Question 20

What is the definition of ‘unavailable as a witness’ under s16(2) of the Evidence Act 2006?

Answer 20

If the person -

(a) is dead
(b) is outside NZ and it is not reasonably practicable for him or her to be a witness
(c) is unfit to be a witness because of age or physical or mental condition
(d) cannot with reasonable diligence be identified or found
(e) is not compellable to give evidence

Question 21

What is the definition of enforcement agency?

Answer 21

This refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the New Zealand Customs Service, the Ministry of Fisheries, and the Inland Revenue Department.

Question 22

What is the definition of ‘associated defendant’?

Answer 22

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
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.

Question 23

What is involved in the Woolmington principle?

Answer 23

The fundamental principle in criminal law is the presumption of innocence, known as the Woolmington principle.

The 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 24

What was held in Woolmington v DPP?

Answer 24

The prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 25

What is the difference between ‘practical obligation on the defence’ and ‘evidential burden on the defence’?

Answer 25

The prosecution proves facts that the defendant committed the act and the defendant is to produce some story or evidence if he or she wants to suggest the conclusion is wrong. This is not a burden of proof - the defendant does not have to prove anything. It is simply a practical obligation to point to some evidence that suggests a reasonable doubt.

Where the defendant wishes to put up a defence to the charge, it is not just a ‘practical obligation’, rather there is an ‘evidential burden’ on the defendant. Once the basic elements have been proved, it is up to the defendant to point to some evidence that suggests an explanation e.g. self-defence.

Question 26

What are 3 of the exceptions to the Woolmington principle?

Answer 26

• defence of insanity (s23(1), CA61)
• some offence provisions shift the burden of proof of specific defences to the defendant e.g. s202A(4)(b), CA61 where the defendant can prove the absence of intent
• the Evidence Act 2006 places the burden of proving a particular issue on one party in relation to the admissibility of evidence and occasionally this may be the defendant.

Question 27

What are public welfare offences?

Answer 27

The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public.

Question 28

When does the Woolmington principle not apply?

Answer 28

During public welfare regulatory offences, once the prosecution has proved actus reus, the burden passes to the defendant to prove a total absence of fault as a defence.

These are ‘strict liability’ offences, which may be seen as sitting outside the Woolmington principle, as opposed to true exception.

Question 29

To what standard is the burden of proof for the prosecution?

Answer 29

Beyond reasonable doubt.

Question 30

To what standard is the burden of proof for the defence?

Answer 30

Balance of probabilities.

Question 31

In R v Wanhalla, what guidance was provided as a definition for ‘beyond reasonable doubt’?

Answer 31

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.

Question 32

What is the balance of probabilities?

Answer 32

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 burden is not discharged.

Question 33

What is outlined in s6 of the Evidence Act 2006? (6 components)

Answer 33

The purpose of this Act is to help secure the just determination of proceedings by -

(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence

Question 34

What is outlined in s7 of the Evidence Act 2006?

Answer 34

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

(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

Question 35

What is outlined in s8 of the Evidence Act 2006?

Answer 35

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

Question 36

What is the s8 test?

Answer 36

The s8 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 37

What is the general rule of evidence?

Answer 37

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

Question 38

What are the 2 main exceptions to the general rules of evidence?

Answer 38

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

Question 39

What is the definition of judicial notice?

Answer 39

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 fact exists.

Question 40

What is outlined in s9 of the Evidence Act 2006?

Answer 40

Admission by agreement.

(1) in any proceeding, the Judge may, -
(a) with the written or oral agreement of all parties, admit evidence that is not otherwise admissible, and
(b) admit evidence offered in any form or way agreed by all parties

(2) in a criminal proceeding, a defendant may admit any fact alleged against that defendant so as to dispense with proof of that fact.
(3) in a criminal proceeding, the prosecution may admit any fact so as to dispense with proof of that fact.

Question 41

What is the definition of ‘presumptions of law’?

Answer 41

Inferences that have been expressly drawn by law from particular facts. They may be either conclusive or rebuttable.

Question 42

What is the definition of ‘presumptions of fact’?

Answer 42

Presumptions of fact are those that the mind naturally and logically draws from the given facts. Presumptions of fact are simply logical inferences, and so are always rebuttable.

Question 43

What was held in R v Burrows?

Answer 43

“The party wishing to bring the evidence has the burden of showing the evidence is admissible. It is illogical to require the Crown to show admissibility beyond reasonable doubt because circumstantial facts do not have to be proved to that standard.”

Question 44

What are the 3 principles when deciding whether evidence is admissible?

Answer 44

• relevance
• reliability
• unfairness

Question 45

Why might evidence be excluded due to unfairness?

Answer 45

• evidence may be excluded if it would result in some unfair prejudice in the proceeding.
• 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.

Question 46

What are the similarities between the s8 test and s43?

Answer 46

Under s43, there is a similar balancing exercise, with specific focus on the prejudicial effect on the defendant, where the prosecution wish to offer propensity evidence about the defendant.

Question 47

What was held in R v Hannigan?

Answer 47

The Judge retains control of the admission of evidence and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.

Question 48

What is outlined in s14 of the Evidence Act 2006 regarding provisional admission of evidence?

Answer 48

If a question arises concerning the admissibility of any evidence, the Judge may admit that evidence subject to evidence being later offered that establishes its admissibility.

Question 49

What is outlined in s15 of the Evidence Act 2006 regarding evidence given to establish admissibility?

Answer 49

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

(a) is admissible in the proceeding if the evidence given by the witness is inconsistent with the witness’s subsequent testimony in the proceeding (whether or not the other evidence is admitted)
(b) is not otherwise admissible in the proceeding

Question 50

What was held in Hart v R?

Answer 50

It stated that ‘the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

Question 51

In relation to limiting the use of evidence and use for multiple purposes, what does s27 involve?

Answer 51

Controls the use of pre-trial statements of defendants and co-defendants.

Question 52

In relation to limiting the use of evidence and use for multiple purposes, what does s31 involve?

Answer 52

Forbids the prosecution from relying on certain evidence offered by defendants in a criminal case.

Question 53

In relation to limiting the use of evidence and use for multiple purposes, what does s32 involve?

Answer 53

Forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.

Question 54

What 6 areas do the exclusive rules of evidence deal with?

Answer 54

• veracity
• propensity
• hearsay
• opinion
• identification
• improperly obtained evidence

Question 55

What was held in R v Gwaze?

Answer 55

The Supreme Court has made it clear that rules of admissibility, including ss 7 and 8, are rules of law and are not matters of discretion.

Question 56

‘Character evidence’ is now separated into what two classes of evidence?

Answer 56

Veracity - a disposition to refrain from lying.

Propensity - a tendency to act in a particular way.

Question 57

What is outlined in s37 of the Evidence Act 2006 with regard to veracity rules?

Answer 57

(1) A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity
(2) in a criminal proceeding, evidence about a defendant’s veracity must also comply with s38 or s39

Question 58

Evidence that is ‘substantially helpful’ is a higher threshold than relevance under s7. What may the Judge consider in order for the evidence to be admissible? This is also known as the ‘substantial helpfulness test’.

Answer 58

(3) in deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider whether 1 or more of the following applies:

(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 dishonesty or 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

Question 59

What is outlined in s37(4) regarding challenging the veracity of their own witness?

Answer 59

(4) a party who calls a witness -
(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness

Question 60

What was held in R v K?

Answer 60

It was suggested that someone’s reputation for veracity is potentially admissible under s37, but the substantial helpfulness threshold will only be met in exceptional cases.

Question 61

When is the substantial helpfulness not a sufficient test?

Answer 61

• where the prosecution wish to offer evidence about a defendant’s veracity (s38)
• where a defendant offers veracity evidence about a co-defendant (s39)

Question 62

What matters must occur in order to be able to offer evidence of a defendant’s veracity (s38(2))?

Answer 62

• 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
• the Judge permits the prosecution to do so

Question 63

What matters must occur in deciding whether to give permission for the prosecution to question the defendant about his or her veracity (s38(3))?

Answer 63

• the extent to which the defendant’s veracity, or the veracity of a prosecution witness, has been put in issue in the defendant’s evidence
• the time that has elapsed since any conviction about which the prosecution seeks to give evidence
• whether any evidence given by the defendant about veracity was elicited by the prosecution

Question 64

What is the definition of propensity evidence in s40 of the Evidence Act 2006?

Answer 64

(1) Propensity evidence -
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is -
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question

Question 65

What does propensity evidence include?

Answer 65

• propensity as to actions

- propensity as to state of mind

Question 66

What does propensity evidence not include?

Answer 66

• 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 (which is governed by the veracity rules set out in s37)

Question 67

What is outlined in s41 of the Evidence Act 2006?

Answer 67

Propensity evidence about defendants

(1) a defendant in a criminal proceeding may offer propensity evidence about himself or herself
(2) if a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about the defendant
(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2)

Question 68

What is outlined in s43(1) of the Evidence Act 2006?

Answer 68

Propensity evidence offered by prosecution about defendants.

(1) the prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 69

Under s43(2), what MUST the Judge consider when assessing the probative value of propensity evidence?

Answer 69

The nature of the issue in dispute.

Question 70

Under s43(3), what MAY the Judge consider when assessing the probative value of propensity evidence?

Answer 70

• the frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred
• the connection in time OR the extent of the similarity between the AOEC which are the subject of the evidence and the AOEC which constitute the offence for which the defendant is being tried
• the number of persons 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
• whether the allegations described above may be the result of collusion or suggestibility
• the extent to which the AOEC which are the subject of the evidence and the AOEC which constitute the offence for which the defendant is being tried are unusual

Question 71

Under s43(4), what MUST the Judge consider when assessing the prejudicial effect of evidence on the defendant?

Answer 71

• whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
• whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions

Question 72

What was held in Rei v R in relation to the requirements for the admission of propensity evidence?

Answer 72

The evidence must:

• constitute propensity (definition)
• have a probative value ‘in relation to an issue in dispute’ and other matters that may be relevant, including those prescribed in s43(3); and
• have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 73

What is outlined regarding probative value and prejudicial effect?

Answer 73

The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 74

What is outlined regarding prior convictions as part of propensity evidence?

Answer 74

The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence. In addition, it is well-established that conduct that is subsequent to the present offending is capable of being propensity evidence.

Question 75

What must the Judge take into account with regard to the probative value of the evidence and the prejudicial effect on the defendant?

Answer 75

When assessing the probative value of the evidence, the Judge MUST take into account the nature of the issue in dispute. Only then he or she MAY consider s43(3).

When assessing the prejudicial effect on the defendant, the Judge MUST consider s43(3). If the Judge decides that there is a risk that the propensity evidence will have an unfairly prejudicial effect on the defendant, he or she must weigh that risk against the probative value of the evidence.

Question 76

What is outlined in s17 of the Evidence Act 2006 regarding the hearsay rule?

Answer 76

A hearsay statement is not admissible except -

• as provided by this subpart or by the provisions of any other Act; or
• in cases where
  ——this Act provides that this subpart does not apply; and
  ——the hearsay statement is relevant and not otherwise inadmissible under this Act.

Question 77

What is outlined in s18 of the Evidence Act 2006 regarding the general admissibility of hearsay?

Answer 77

A hearsay statement is admissible in any proceeding if the statement is reliable and either:

• the maker of the statement is unavailable as a witness; or
• undue expense or delay would be caused

Question 78

What 3 components are involved in the lack of reliability of hearsay evidence?

Answer 78

• where the maker is not called as a witness, there is no opportunity to cross-examine them
• the juries cannot evaluate evidence properly without being able to see the demeanour of the person
• witnesses may make mistakes about the meaning or content of statements made by other people

Question 79

What is the main reason for the hearsay rule’s existence?

Answer 79

The danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 80

What is outlined in s19 of the Evidence Act 2006 regarding the admissibility of hearsay statements contained in business records?

Answer 80

A hearsay statement contained in a business record is admissible if -

(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness

Question 80

What is outlined in s22 of the Evidence Act 2006 regarding notice of hearsay in criminal proceedings?

Answer 80

The rationale for the notice provision is, where possible, to encourage admissibility decisions concerning hearsay to me made pre-trial.

Question 81

What is outlined in s23 of the Evidence Act 2006 regarding the opinion rule?

Answer 81

A statement of opinion is not admissible in a proceeding, except as provided by ss 24 or 25.

Question 82

What is the definition of opinion?

Answer 82

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

Question 83

What is the rationale for the exclusionary rule?

Answer 83

To prevent the admission of unreliable, superfluous or misleading evidence.

Question 84

What are the 3 justifications for the exclusionary rule around opinion evidence?

Answer 84

• where a witness offers a bare opinion, it holds little probative weight
• there is a danger that the 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
• a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible

Question 85

What is outlined in s24 of the Evidence Act 2006 regarding non-expert opinion evidence?

Answer 85

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.

Question 86

What are the two basic criteria that the statement of opinion must fulfil in order to be admissible under s24?

Answer 86

• 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 from something personally perceived

Question 87

What is outlined in s25 of the Evidence Act 2006 regarding expert opinion evidence?

Answer 87

Admissibility of expert opinion evidence.

If the evidence is opinion evidence, then in order to comply with s25, the opinion must:

• be that of an ‘expert’
• comprise ‘expert evidence’, and
• offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding

Question 88

What is outlined n s25(3) of the Evidence Act 2006?

Answer 88

If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

Question 89

What is the definition of an ‘expert’?

Answer 89

A person who has specialised knowledge or skill based on training, study or experience.

Question 90

What was held in R v Turner in relation to evidence based on proven facts?

Answer 90

Before the court can assess the value of an opinion it must know the facts upon which it is based… In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based.

Question 91

What are the 8 principles regarding the conduct of experts?

Answer 91

1. State his or her qualification
2. The facts must be stated explicitly
3. The reasons for opinions given must be stated explicitly
4. Any literature or other material used must be referred to by the expert
5. Must not give opinion evidence outside his or her area of expertise
6. If an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
7. Must be impartial on relevant matters with that expert’s area of expertise
8. An expert is not an advocate for any party

Question 92

What is the notice requirement regarding expert evidence?

Answer 92

If the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report at least 14 days before the date fixed for the trial.

Question 93

What 4 areas of verification must be made before a person is served with a summons to appear in court?

Answer 93

• whether they are allowed to give evidence
• whether they are required to give evidence
• whether they can refuse to give evidence, and
• what type of witness they will be

Question 94

What is outlined in s71 of the Evidence Act 2006 regarding eligibility and compellability?

Answer 94

In a civil or criminal proceeding, any person is eligible to give evidence and a person who is eligible to give evidence is compellable to give that evidence.

Question 95

What 3 areas might testimony be excluded?

Answer 95

• irrelevant (s7)
• general exclusion (s8)
• a person is unavailable as a witness if he or she is ‘unfit to be a witness because of age or physical or mental condition’ (s16)

Question 96

What areas might a person be ineligible to give evidence?

Answer 96

• a judge in that proceeding (s72)
• a juror in that proceeding (s72)
• counsel in that proceeding (unless the defendant is self-representing)(s72)

Question 97

What situations are people not a compellable witness?

Answer 97

• defendants (s73)
• associated defendants (s73)
• judges (s74)
• bank officers (s75) - no bank officer is compellable to produce banking records if the contents can be proven under the ‘business records’ exception to the hearsay rule (s19)

Question 98

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations.

Answer 98

1. the associated defendant is being tried separately from the defendant; or
2. the proceeding against the associated defendant has been determined

Question 99

What areas might witnesses who are otherwise compellable be excused by a Judge from testifying?

Answer 99

• ‘just cause’ (s165)

- privilege

Question 100

What is the definition of privilege in relation to the giving of evidence?

Answer 100

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

Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.

Question 101

What are the 8 types of privilege?

Answer 101

1. Communications with legal advisers (s54)
2. Solicitors’ trust accounts (s55)
3. Preparatory materials for proceedings (s56)
4. Settlement negotiations or mediation (s57)
5. Communications with ministers of religion (s58)
6. Information obtained by medical practitioners and clinical psychologists (s59)
7. Privilege against self-incrimination (s60)
8. Informer privilege (s64)

Question 102

What is outlined in s53(1) of the Evidence Act 2006 regarding effect and protection of privilege?

Answer 102

(1) A person who has a privilege conferred by any of the ss 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding -

(a) the communication; and
(b) the information, including any information contained in the communication
(c) any opinion formed by a person that is based on the communication or information

Question 103

What is an exception to privileged communication?

Answer 103

The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.

Question 104

When would a communication with a legal adviser be ‘privileged’?

Answer 104

(a) the communication must be intended to be confidential

(b) the communication must be made for the purposes of obtaining or giving legal services

Question 105

What is included in preparatory materials for proceedings?

Answer 105

The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose or preparing for a proceeding or an apprehended proceeding.

Question 106

What is outlined in s58 of the Evidence Act 2006 regarding privilege for communications with ministers of religion?

Answer 106

A person has a privilege in respect of communication between that person and a minister of religion 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.

Question 107

What is the definition of a minister of religion?

Answer 107

If the person has a status within a church or other religious or spiritual communicate that requires or calls for that person -

(a) to receive confidential communications of the kind described in subsection (1); and
(b) to respond with religious or spiritual advice, benefit, or comfort

Question 108

What is outlined in s59 of the Evidence Act 2006?

Answer 108

A person has a privilege in a criminal proceeding in respect of any communication or information made/obtained by the person to a medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.

Question 109

Who does s59 apply to?

Answer 109

A person who consults of it 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.

Question 110

Who does s59 NOT apply to?

Answer 110

A person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

Question 111

What is the definition of a clinical psychologist?

Answer 111

A health practitioner who is, or is deemed to be, registered with the Psychologists Board

AND

Who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems

Question 112

What is the definition of self-incrimination?

Answer 112

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

Question 113

What is outlined in s60 of the Evidence Act 2006 regarding privilege against self-incrimination?

Answer 113

If a person is required to provide specific information and the information would, if so provided, be likely to incriminate the person, that person has a privilege and cannot be required to provide it, and cannot be prosecuted or penalised for refusing or failing to provide the information.

Question 114

What is the definition of an informer?

Answer 114

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

An informer may be a member of the police working undercover.

Question 115

What is outlined in s64 of the Evidence Act 2006 regarding informers?

Answer 115

An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

Question 116

In what 2 situations MUST or MAY (respectively) privilege be disallowed by the Judge?

Answer 116

1. Where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence.
2. Where the Judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.

Question 117

What must the Judge weigh up when evidence may be given about the deliberations of a jury?

Answer 117

• the public interest in protecting the confidentiality of jury deliberations generally, and
• the public interest in ensuring that justice is done in those proceedings

Question 118

What is outlined in s68 regarding the protection of journalists’ sources?

Answer 118

Where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would do so.

Question 119

What is outlined in s69 regarding overriding discretion as to confidential information?

Answer 119

Allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.

Question 120

What is the definition of corroboration?

Answer 120

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 121

What types of offences are considered by law to require corroboration?

Answer 121

• perjury
• false oaths
• false statements or declarations
• treason

Question 122

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

Answer 122

• decide all questions concerning the admissibility of evidence
• explain and enforce the general principles of law applying to the point at issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted

Question 123

What are the general features of the justice system?

Answer 123

The conduct of criminal trials follows the ‘adversarial’ or ‘accusatorial’ system of justice:

• facts and evidence emerge by means of questions by the prosecution and defence to witnesses
• cross-examination
• the Judge rules on the admissibility of evidence
• Judge or jury may ask questions
• defendant does not have to give evidence
• facts may be judicially noticed and accepted as fact (and therefore not questioned)

Question 124

What must occur for a witness under the age of 12?

Answer 124

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

Question 125

According to s84 of the Evidence Act 2006, what is the order of proceedings when examining witnesses?

Answer 125

1. A witness gives evidence in chief
2. The other party cross-examines the witness
3. The witness may be re-examined by the party who called the witness

Question 126

What is the sequence of a jury trial?

Answer 126

1. Jury is empanelled and a foreperson selected
2. The Judge commences the trial with opening instructions
3. The Crown makes an opening address detailing the allegation(s) and evidence to be called
4. The Crown’s case is presented including all witnesses (and follows evidence in chief > cross-examination > re-examination)
5. Defence makes an opening address
6. The defence’s case is presented including all witnesses (and follows evidence in chief > cross-examination > re-examination)
7. The Crown closes
8. The defence closes
9. The Judge sums up to the jury
10. The jury retires to consider its verdict

Question 127

What is the definition of ‘evidence in chief’?

Answer 127

Evidence given by the witness through questioning by the party having called the witness.

Question 128

What is the definition of ‘cross-examination’?

Answer 128

The party who DIDN’T call the witness questions and challenges the testimony of the witness.

Question 129

What is the definition of ‘re-examination’?

Answer 129

Further questioning by the party who called the witness to clarify or qualify any matter which was raised during the cross-examination.

Question 130

What is a ‘view’ during a jury trial?

Answer 130

An inspection of a place or thing that is not in the courtroom.

Question 131

Who are the only people able to comment on the fact that the defendant did not give evidence at his or her trial (s33)?

Answer 131

No persons other than the defendant or the defendant’s counsel or the Judge may comment on this.

Question 132

What is the definition of a leading question?

Answer 132

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

Question 133

In what situations are leading questions permitted (s89)?

Answer 133

• 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 Judge’s discretion, allows the question

Question 134

What factors can be considered when consulting a document for the purpose of refreshing memory?

Answer 134

• the significance of the events to the witness
• the time elapsed between the events and the making or adoption of the document
• evidence from the witness about the freshness of their memory
• the detail and lucidity of the recollection recorded in the document

Question 135

What was held in Rongonui v R?

Answer 135

A statement made 6 weeks after the event could still be a document made or adopted at a time when the witness’s memory was fresh.

Question 136

What are the two different types of memory refresh for witnesses?

Answer 136

1. Refreshment of memory by reference to written documentation in court.
2. Refreshment of memory out of court.

Question 137

Under what circumstances outlined in s35(2) are previous consistent statements admissible?

Answer 137

(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 complain has been made in a criminal case

Question 138

What is the general rule regarding previous consistent statements?

Answer 138

A witness cannot give evidence about statements made before the trial that are consistent with the evidence given at the trial unless the exceptions contained in s35(2) apply.

Question 139

What is the definition of a hostile witness?

Answer 139

• 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 140

Once a witness is declared hostile by the Judge, what may the party do that called the witness?

Answer 140

• ask leading questions
• ask questions designed to probe the accuracy of memory and perception
• ask questions as to prior inconsistent statements
• challenges to veracity, including evidence from other witnesses

The party who called the witness can now, essentially, ‘cross-examine’ their own witness.

Question 141

What is the difference between a hostile witness and an unfavourable witness?

Answer 141

An unfavourable witness may be a witness who simply fails to come up to brief and is therefore unfavourable to the party calling them.

Question 142

What are the two purposes of cross-examination?

Answer 142

1. To elicit information supporting the case of the party conducting the cross-examination
2. To challenge the accuracy of the testimony given in evidence in chief

Question 143

What are the 4 components where there is a duty during cross-examination?

Answer 143

• 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’

Question 144

What is outlined in s85 of the Evidence Act 2006 regarding unacceptable questions?

Answer 144

In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in a language that is too complicated for the witness to understand.

Question 145

What is outlined is s96 of the Evidence Act 2006 regarding cross-examination on previous statements of witnesses?

Answer 145

A witness may be cross-examined about a previous statement, whether in oral or documentary form, without either being shown the statement or having its contents disclosed by the cross-examiner.

The cross-examiner must ‘adequately identify’ to the witness ‘the time, place and other circumstances concerning the making of the statement’.

If the witness does not admit to making the statement, the cross-examiner may wish to provide the statement.

Question 146

Under what circumstances may a Judge direct the jury that evidence should be scrutinised with particular care, or should be given less weight?

Answer 146

• judicial warning that evidence may be unreliable (s122)
• judicial directions about certain ways of giving evidence (s123)
• judicial warnings about lies (s124)
• judicial directions about children’s evidence (s125)
• judicial warnings about identification evidence (s126)
• delayed complaints or failure to complain in sexual cases (s127)