Evidence Practice 2021

Question 1

Define ‘evidence’

Answer 1

Evidence is a term for the whole body of material which a court or tribunal (i.e in criminal cases the judge or jury), may take into account in reaching their destination. May be in oral, written, or visual form

Question 2

Define ‘admissible evidence’ (Must Know)

Answer 2

Evidence is admissible if it is legally able to be received by a court

Question 3

Define ‘weight of evidence’ (Must Know)

Answer 3

It is the value in relation to the facts in issue. The value will depend on a wide range of factors, such as:

• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• the extent to which it is supported or contradicted by other evidence produced
• the veracity of the witness

Its the ‘probative force’ that can be given to evidence

Question 4

Define ‘Statement’

Answer 4

This is a spoken or written assertation by a person, or non-verbal conduct of a person intended by that person as an assertation of any manner

Question 5

# Define 'hearsay statement'
- out-of-court statements

Answer 5

Under the Act, a hearsay statement is defined as (s4):
“a statement that –
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”

Out-of-court statements made by a “witness” are not excluded by hearsay rule because the maker is available to be cross-examined.

Such statements may still be excluded by a different rule. A statement offered for some purpose other than proving the truth of its contents, e.g. merely to show that the statement was made or uttered, is not a hearsay statement

Question 6

Define ‘direct evidence’

Answer 6

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

(an eyewitness saw defendant stab the complainant with a knife)

Question 7

Define ‘circumstantial evidence’

Answer 7

This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences (by Judge and jury) about the existence of those facts to be drawn.

(the defendant was seen in the vicinity of the scene of the crime)

As such, it offers indirect proof of a fact in issue.

Question 8

What are ‘presumptions of law’? (Must know)

Answer 8

Presumptions of Law are inferences that have been expressly drawn by law from particular facts.

Presumptions of law may be either conclusive or rebuttable.

eg. a person under 10 years old can’t be charged OR the defendant is innocent until proven guilty.

Question 9

What are ‘presumptions of facts’?

Answer 9

Presumptions of Fact are those that the mind naturally and logically draws from the given facts, e.g. one presumes that a person has guilty knowledge if they have possession of recently stolen goods. Presumptions of facts are simply logical inferences, and so are always rebuttable

Question 10

What is corroboration? (Must know)

Answer 10

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 11

Explain ‘burden of proof’ (Woolmington Principal) (Must Know)

Answer 11

Burden of Proof – Whoever asserts something must prove it.

‘Woolmington Principle’ fundamental principle in criminal law is the ‘presumption of innocence’. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence

Question 12

Explain what “Evidential burden” on defence means (Must Know)

Answer 12

Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence.

It is not a burden of proof, and once it is made a ‘live issue’ then the prosecution must destroy the defence, because the burden of proof remains where that case puts it – with the prosecution.

The ultimate question for the jury is always, “has the prosecution proved its case?”

Question 13

What are the exceptions of ‘evidential burden’?

Answer 13

There are exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant. The most common example is the defence of insanity (s23(1) CA 61).

Furthermore, the principle can be overridden by Parliament by express statutory exceptions. Some offence provisions shift the burden of proof of specific defences to the defendant

Question 14

Explain ‘beyond reasonable doubt’ (Must know)

Answer 14

Reasonable Doubt is “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 15

What is the ‘balance of probabilities’? (Must know)

Answer 15

Balance of Probabilities 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 16

What is the purpose of evidence law (found in S6 of the Evidence Act)? (Must Know) (FRFPSAE)

Answer 16

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.
(b) Providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990.
(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.

Question 17

Explain what good evidence is in relation to ‘facts that prove the charge’

Answer 17

Facts that Prove the Charge (good evidence) establishes what you are trying to prove (in light of the other purposes in s6). The facts must prove the elements of the charge, and the evidence should be made up of facts the prove the charge.

Question 18

What is Circumstantial Evidence?

Answer 18

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof of a fact in issue

Question 19

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

Answer 19

That all facts in issue and fact 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.

Question 20

What is S128 of the Evidence Act (Notice of Uncontroverted Facts)

Answer 20

Notice of Uncontroverted Facts Section 128

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding it is being held that they cannot reasonably be questioned

Question 21

What are ‘presumptions of law’?

Answer 21

Presumptions of Law are inferences that have been expressly drawn by law from particular facts.

Presumptions of law may be either conclusive or rebuttable

Question 22

What are ‘presumptions of fact’?

Answer 22

Presumptions of Fact are those that the mind naturally and logically draws from the given facts, e.g. one presumes that a person has guilty knowledge if they have possession of recently stolen goods. Presumptions of facts are simply logical inferences, and so are always rebuttable.

Question 23

How do you determine admissibility? (Must Know) (RRU)

Answer 23

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the EA 06:

• Relevance
• Reliability
• Unfairness

Question 24

What is the fundamental principal that relevant evidence is admissible under S7? (evidence is relevant…) (Must Know)

Answer 24

(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 25

For facts to be received, they must be what? (two things)

Answer 25

Relevant and admissable.

Question 26

What is inadmissibility or exclusion?

Answer 26

Inadmissibility or exclusion will usually be due to a lack of reliability, fairness, public interest, or a combination of these factors.

Question 27

When is evidence excluded? (‘general exclusion test’ under S8) (Must Know) (PP)

Answer 27

(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 28

What is the S8 test?

Answer 28

Section 8 Test Involves balancing the probative value of evidence against the risk that it will:
• Have an “unfair prejudicial effect on the proceeding” s8(1)(a), or
• “Needlessly prolong the proceeding” s8(1)(b).

Question 29

What is a “Hearing in Chamber” or a “voir dire” hearing? (Must Know)

Answer 29

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

The jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a Voir Dire are sometimes referred to as “preliminary facts”

Question 30

What does S6 allow in terms of evidence?

Answer 30

S6 Evidence Act allows evidence to prove ‘anything that is of consequence to the determination of the proceeding’ (relevant evidence defined)

Question 31

What are the exclusive rules of evidence? (Must Know)
VPHOII

Answer 31

The exclusive rules of evidence deal with:
• Veracity
• Propensity
• Hearsay
• Opinion
• Identification
• Improperly Obtained Evidence

Question 32

Under S6 of the Evidence Act, what are the two classes of ‘character’ evidence?

Answer 32

EA 06 divides what was called “character” evidence at common law into two classes of evidence:
• Veracity – a disposition to refrain from lying, and
• Propensity – a tendency to act in a particular way

Question 33

Under S37 of the Evidence Act, outlines the veracity rules. What is held in SS3 of this section? (VCIBM)

Answer 33

(3) In deciding whether or not evidence will be offered about the veracity of a person, the Judge may consider whether the proposed evidence tends to show 1 or more of the following matters:
a. Lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
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 34

S38 of the Evidence Act outlines the evidence of a defendants veracity.

The defendant may offer evidence about his or her veracity provided that it meets the substantial helpfulness test set out in S37… what is held in S38 EA?

Answer 34

(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.

(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if –
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.

(3) In determining whether to give permission under subsection (2(b), the Judge may take into account any of the following matters:
a. 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:
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 about veracity was elicited by the prosecution

Question 35

What is held in S40(1) - Propensity Rule? (Must Know)

Answer 35

(1) In this section and section 41 to 43, 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 36

What DOESNT propensity evidence include?

Answer 36

Propensity Evidence 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.
• Evidence that is solely or mainly about veracity (which is governed by the veracity rules s37).

Question 37

S43 Evidence Act - Propensity Evidence Offered by Prosecution about Defendants.

SS(3) When assessing the probative value of propensity evidence, the Judge may consider among other matters, the following… (a-f)
(FTSNCU)

Answer 37

a. Frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred.
b. Connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried.
c. Extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried.
d. Number of person’s 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 the allegations described in paragraph (d) may be the result of collusion or suggestibility.
f. The extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omission, events, or circumstances which constitute the offence for which the defendant is being tried are unusual

Question 38

What is a hearsay statement as defined under S4? (Must Know)

Answer 38

A statement that-

(a) Was made by a person other than a witness; and
(b) Is offered in evidence at the proceeding to prove the truth of its contents.

Question 39

What is the Hearsay rule under S17?

Answer 39

Hearsay Rule Section 17 sets out the general exclusionary rule for hearsay:

(1) A hearsay statement is not admissible except -
a) As provided by this subpart or by the provisions of any other Act; or

b) In cases where-
i. This Act provides that this subpart does not apply; and
ii. The hearsay statement is relevant and not otherwise inadmissible under this Act.

Question 40

What is the ‘General Admissibility of Hearsay’ under Section 18 of the Evidence Act? (Must Know)

Answer 40

(1) A hearsay statement if 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.

(Two criteria for admissibility Reliability and Unavailability or Undue expense or delay would be caused)

Question 41

S16(1) ‘interpretation’ of the Evidence Act falls under ‘Part 2 -Admissibility rules, privilege, and confidentiality’.

What are the 5 (a-e) circumstances, in relation to a statement by a person who is not a witness? (Must know) (NCCVA)

Answer 41

Circumstances, in Relation to a Statement by a Person Who is not a Witness Section 16(1)

(a) Nature of the statement; and
(b) Contents of the statement; and
(c) Circumstances that relate to the making of the statement; and
(d) Circumstances that relate to the veracity of the person; and
(e) Circumstances that relate to the accuracy of the observations of the person.

Question 42

S16(2) ‘interpretation’ of the Evidence Act falls under ‘Part 2 -Admissibility rules, privilege, and confidentiality’.

What are the 5 (a-e) things that makes a person unavailable to be a witness? (Must know)

Answer 42

Unavailability or Undue Expense and Delay Section 16(2)
For the purpose of this subpart, a person unavailable as a witness in a proceeding if the person-

(a) Is dead, or
(b) Outside NZ and it is not reasonably practical for him or her to be a witness; or
(c) Is unfit to be a witness because of age or physical or mental conditions; or
(d) Can not with reasonable diligence be identified or found; or
(e) Is not compellable to give evidence

Question 43

What is the ‘notice requirement or hearsay in criminal proceedings’ under section 22? (CWD)

Answer 43

Notice must be given in order to have a hearsay statement admitted under s18 or s19. The notice requirement is contained in s22. The rationale for the notice provisions is, where possible, to encourage admissibility decisions concerning hearsay to be made pre-trial (ability to respond to the statement)

Question 44

S23 of the Evidence Act sates that opinions are not admissible, what are the justifications for the rule?
3 things (UCI)

Answer 44

Where a witness offers a bare opinion, it holds little probative weight because:

• 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 (e.g. where an opinion is based largely on propensity evidence).

Question 45

What is ‘Non-Expert Opinion Evidence / General Admissibility of Opinions’ under Section 24 EA? (Must know)

Answer 45

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 46

In order for opinion evidence to be admissible under S24, what are the two criteria that must be fulfilled? 2 things (Must Know)

Answer 46

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 (be it conclusion, inference etc.) from something personally perceived

Question 47

What MAY expert evidence consist of?(3 things)

Answer 47

1. fact
2. opinion
3. a mixture of two

Question 48

If evidence is opinion evidence, what must it have (3 things) in order to comply with section 25? (admissibility of expert opinion evidence) (EEeSh)

Answer 48

1. Be that of an “expert”.
2. Comprise “expert evidence”, and
3. Offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.

Question 49

Define ‘expert’ (Must Know)

Answer 49

Section 4 of Act defines an “expert” a person who has specialised knowledge or skill based on formal study, training, experience, or a combination. Evidence offered by expert should be within area of expertise.

Question 50

The Conduct of Experts/Court of Appeal approved Principles in regards to ‘expert witnesses’ where they should be impartial in their assistance to the court.

The Court of Appeal approved similar principles to those for experts in civil cases.

What are the 8 principals?

Answer 50

• An expert must state his or her qualifications when giving evidence.
• The facts, matters and assumptions on which opinions are expressed must be stated explicitly.
• The reasons for the opinions must be stated explicitly.
• Any literature or other material used or relied on to support opinions must be referred to by the expert.
• The expert must not give opinion evidence outside of his/her area of expertise.
• If an expert witness believes that his/her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated.
• An expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
• An expert is not an advocate for any party

Question 51

Before a person is served with Summons, verification must be made as to what? (4 things) (Must Know) (ARRT)

Answer 51

• Whether they are allowed to give evidence
• Whether the are required to give evidence
• Whether they can refuse to give evidence
• What type of witness they will be

Question 52

What makes a witness compellable to give evidence?

Answer 52

A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence.

A witness is compellable if they can be required to give evidence against their will for both prosecution and defence.

Once witness has entered witness box and been sworn, they are under a compellable obligation to answer all questions put to them

Question 53

What area the exceptions to general preposition / not compellable to give evidence (S72/73/74/75)

Answer 53

S72 - Judges, Jurors, and Counsel

S73 - Defendants and Associated Defendants

S74 - Sovereign, Governor General, Sovereign or Head of State of foreign country, Judges).

S75 - Bank officer – where bank is not a party to the proceeding, 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), or to appear as a witness to prove matters recorded in the bank records

Question 54

What is an ‘associated defendant’?

Answer 54

In relation to a defendant in a criminal proceeding, means 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 55

What is ‘privilege’? (Must Know)

Answer 55

Privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

When a witness is eligible to give evidence and chooses or is compelled to, they may still be able to refuse or be prevented from answering particular questions on the grounds of privilege.

Question 56

What are different types of Privilege? (Must Know)

Answer 56

• Communications with legal advisors (s54)
• Solicitors’ trust accounts (s55)
• Preparatory materials for proceedings (s56)
• Settlement negotiations or mediation (s57)
• Communications with ministers of religion (s58)
• Information obtained by medical practitioners and clinical psychologists (s59)
• Privilege against self-incrimination (s60)
• Informer privilege (s64)

Question 57

What is S59(1)(a)&(b)? - Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists

Answer 57

(1) This section-
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;
b. Does not apply in the case of 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 58

S62 EA explains: Claiming Privilege Against Self-Incrimination in Court Proceedings.

What is held in this section?

Answer 58

(1) If in a court proceeding it appears to the Judge that a party or witness may have grounds to claim a privilege against self-incrimination in respect of specific information required to be provided by that person, the Judge must satisfy himself or herself that the person is aware of the privilege and its effect.
(2) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information

Question 59

Who is an ‘informer’ under S64 - Informers? (Must know)

Answer 59

1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity
(2) A person is an informer for the purposes of this section if the person -

a. 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; and
b. Is not called as a witness by the prosecution to give evidence relating to that information.

(3) An informer may be a member of the Police working undercover

Question 60

What is the jist of S68 of the Evidence Act (Protection of Journalists’ sources)

Answer 60

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 disclose the identity of the informant or enable that identity to be discovered.

Question 61

Does evidence need to be corroborated? Explain using S121 of the Evidence Act, (Independent Evidence Confirming or Supporting a Fact)

Answer 61

1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of-
a. Perjury (s108 CA 61); and
b. False oaths (s110 CA 61); and
c. False statements or declarations (s111 CA 61); and
d. Treason (s73 CA 61)

Question 62

What is ‘corroboration’?

Answer 62

“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 63

In regards to child complaints and warning the jury, what does Section 125(1) EA outline?

Answer 63

Child Complaints Section 125(1)

(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 warning had the complainant been and adult

Question 64

What is the Judges role in a Trial by Jury? (Must Know)
(DEEI)

Answer 64

When a Judge is presiding over a trial by jury, he or she must:

• 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

During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.

Question 65

In relation to oaths and affirmations, what must happen to a witness who is over 12 years and under 12 years old? (Must know)

Answer 65

Witnesses who are OVER 12 years must take an oath or affirmation before giving evidence (s77).

Witnesses UNDER 12 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.

Question 66

What is the sequence of Jury Trials? (Must know)

Answer 66

Sequence of Jury Trials

1. Jury is empanelled and foreperson selected. Judges commences trial with some brief opening instructions.
2. Crown makes opening address.
3. Crown case then presented. Each witness called and gives evidence in chief, defence can then cross-examine, prosecution may follow to clarify or qualify any matter raised in cross- examination (re-examination). Judge may ask witness any question.
4. Defence opens its case (role task of jury, and burden of proof etc).
5. Defence case then presented. Witnesses subject to process evidence in chief, cross-examination, re-examination.
6. Crown closing. Defence closing.
7. Judge summary, and the jury retires to consider its verdict.

Question 67

Who can comment on the defendants right to silence under Section 33 EA? (Must know)

Answer 67

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 68

What is the purpose of ‘evidence in chief’? (Must know)

Answer 68

The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness

Evidence must usually be given orally by a witness (after oath/affirmation). Usually in court (ordinary way), but “oral testimony” does not necessarily entail physical presence in court (e.g. CCTV). Moreover, evidence in written form may be given where both parties consent.

Question 69

Define a ‘leading question’

Answer 69

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

The Evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4).

Question 70

The prohibition on leading questions is based on the belief that it will produce unreliable evidence. What are the reasons behind this? (3)

Answer 70

1. There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even though those suggestions do not precisely accord with their own view of what happened.
2. 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 testimony
3. There is a danger that leading questions will result in the manipulation or construction of evidence through collusion, conscious or otherwise, between counsel and the witness

Question 71

Under Section 89(1)(c) of the Evidence Act 2006, leading questions my be allowed in what circumstances?

Answer 71

• To direct the witness’s attention to the subject of identification evidence (e.g. was that the car you saw?).
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
• 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. If allowed, Judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in alternative way, or having a support person are better ways of eliciting the evidence.
• Where a witness has been declared hostile.

Question 72

What may you do to refresh a witnesses memory out of Court? (Must know)

Answer 72

Before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they may have made some months before, or they may check their recollection of events with the officer who interviewed them, and so forth.

Question 73

What is the exception to the ‘Previous Consistent Statement Rule’? (35(2)) (Must know)

Answer 73

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible 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.

Question 74

What kind of questions can you ask a witness that has been deemed ‘Hostile’? (4) (Must know)

Answer 74

• Asking leading questions.
• Asking questions designed to probe the accuracy of memory and perception.
• Asking questions as to prior inconsistent statements, and
• Other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is “substantially helpful” in assessing the witness’s veracity).

Question 75

Define hostile witness (Must Know)

Answer 75

• A witness who 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 76

What is the purpose of cross-examination? (2 things) (Must know)

Answer 76

• 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 (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).

Question 77

What is unacceptable questioning? (Under S85 Evidence Act 2006) (Must Know)

Answer 77

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any questions that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
(2) Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the Judge may have regard to—
(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 other evidence in the proceeding.

Question 78

When may re-examination happen?

Answer 78

After cross-examination, the party who called the witness may re-examine that witness for the purpose of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the Judge.

Question 79

Evidence in Rebuttal Evidence called by either party after completion of their own case, in order to rebut something arising during the trial, can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence … what? (4 things) (Must Know) (FmCoDNaR)

Answer 79

1. Relates to a formal matter.
2. Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (most common ground for leave to be granted).
3. Was not available or admissible before prosecution case was closed.
4. Is required to be admitted in the interests of justice for any other reason.

Question 80

There are a number of circumstances in which a Judge may direct the jury that evidence should be scrutinised with particular case, or should be given less weight.

These are contained in Section 122-127 of the Evidence Act 2006. What are they?

Answer 80

• Judicial warning that evidence may be unreliable - s122
• Judicial directions about certain ways of giving evidence (no adverse inferences) - 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

Question 81

As O/C, what do you address the judge as?

Answer 81

“Your Honour” or “Sir/Ma’am”.

Question 82

As O/C, when referring to your notebook, what must you do?

Answer 82

• Ask the court’s permission.
• Introduce the material properly – e.g “I interviewed the defendant and wrote the answers in my notebook at the time.
• Remember defence/jury are entitled to view your notes, so seal off other entries.
• Remember you are only allowed to refresh your memory – you cannot read the whole
entry unless you have permission to read the notes of the interview

Question 83

Define Judicial Notice (Must know)

Answer 83

Notice of fact that the fact exists. They cannot be reasonably questioned. Eg. the date of Christmas.

Question 84

Section 122 outlines ‘Judicial directions about evidence which may be unreliable’. What are a-e examples under SS2? (to give warning)

Answer 84

(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:

(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 85

Define ‘witness’

Answer 85

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

Question 86

Define ‘Facts in issue’ (Must Know)

Answer 86

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 87

What are the notice requirements when defence intents on calling an expert witness? (Must know)

Answer 87

Section 23 provides that, if the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report (or a summary if no brief or report is yet available) at least 14 days before the date fixed for the trial.

Question 88

What are three ways to give evidence? (Must Know)

Answer 88

1. in the ordinary way (orally or in an affidavit field in court or by reading a written statement in a court room)
2. in an alternative way (in a court room but unable to see the defendant, outside the courtroom, video recording, AVL
3. in any other way (provided by the evidence act)

Question 89

What may you do to refresh a witnesses memory in Court? (Must know)

Answer 89

Section 90(5) of the Evidence Act 2006 provides that “for the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh.”

Question 90

There are a number of warnings or directions that a judge may issue in relation to matters that arise during the trial, what do they include? (Must know).

Answer 90

− the way evidence is given during the proceeding

− a warning about evidence that may be unreliable, and

− a warning about lies.