Evidence Practice Questions

Question 1

Define ‘evidence’

Answer 1

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

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

The value in relation to the facts in issue. It’s the ‘probative force’ that can be accorded to evidence.

Question 4

List three ways in which evidence can be weighed.

Answer 4

The value will depend on a wide range of factors, such as:

• The extent to which it is directly relevant to those facts
• The extent to which it is supported by other evidence produced
• The veracity of the witness

Question 5

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

Answer 5

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 cannot be charged with a criminal offence OR the defendant is innocent until proven guilty.

Question 6

What is corroboration? (Must know)

Answer 6

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 7

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

Answer 7

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 8

Explain ‘beyond reasonable doubt’ R v Wanhalla (Must know)

Answer 8

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 9

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

Answer 9

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 10

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

Answer 10

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 11

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

Answer 11

That all facts in issue and facts relevant to the facts in 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 12

How do you determine admissibility? (3 Things) (Must Know)

Answer 12

Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible.

The judge decides on admissibility.

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 13

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

Answer 13

(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 14

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

Answer 14

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 15

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

Answer 15

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.

Such a hearing is commonly referred to as a ‘hearing in chambers’, or ‘chambers hearing’, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a hearing in chambers are sometimes referred to as ‘preliminary facts’, or ‘preliminary hearing’.

Question 16

What are the exclusive rules of evidence? (6) (Must Know)

Answer 16

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

Question 17

What is held in S40(1) - Propensity Rule? What does “propensity evidence” mean? (Must Know)

Answer 17

(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.) One 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 18

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

Answer 18

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 19

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

Answer 19

(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 20

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)

Answer 20

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 21

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

Answer 21

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 22

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

Answer 22

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.

Question 23

Define ‘expert’ (Must Know)

Answer 23

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

Question 24

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

Answer 24

• 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 25

What is ‘privilege’? (Must Know)

Answer 25

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

Question 26

What are 4 different types of Privilege? (Must Know)

Answer 26

• Communications with legal advisors (s54)

• Informer privilege (s64)

• Communications with ministers of religion (s58)

• Information obtained by medical practitioners and clinical psychologists (s59)

• Solicitors’ trust accounts (s55)
• Preparatory materials for proceedings (s56)
• Settlement negotiations or mediation (s57)
• Privilege against self-incrimination (s60)

Question 27

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

Answer 27

A person 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 his or her identity will not be disclosed; and

is not called as a witness by the prosecution to give evidence relating to that information.

Question 28

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

Answer 28

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.

When a Judge is presiding over a trial by jury, 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 point at issue.

Question 29

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 29

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 30

What is the sequence of a jury trial? (must know)

Answer 30

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 31

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

Answer 31

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 32

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

Answer 32

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 33

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

Answer 33

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 34

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

Answer 34

(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 35

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

Answer 35

• Leading questions
• Questions designed to probe the accuracy of memory and perception
• Questions as to prior inconsistent statements
• Other challenges to veracity.

Question 36

Define hostile witness (Must Know)

Answer 36

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 37

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

Answer 37

• 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 38

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

Answer 38

(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

Question 39

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)

Answer 39

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 in the interests of justice.

Question 40

Define Judicial Notice (Must know)

Answer 40

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

Question 41

Define ‘witness’

Answer 41

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

Question 42

Define ‘Facts in issue’ (Must Know)

Answer 42

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 43

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

Answer 43

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 44

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

Answer 44

1. In the ordinary way (either orally in the courtroom or in an affidavit filed in Court or by reading a written statement in a courtroom)
2. In an alternative way (in a courtroom but unable to see the defendant, outside the courtroom, video recording, AVL)
3. In any other way (provided by the Evidence Act)

Question 45

What may you do to refresh a witness’s memory in Court? (Must know)

Answer 45

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 46

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 46

− the way evidence is given during the proceeding

− a warning about evidence that may be unreliable, and

− a warning about lies.

Question 47

Define ‘veracity’ (Must know)

Answer 47

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

Question 48

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

Answer 48

“Your Honour” or “Sir/Ma’am”.

Question 49

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

Answer 49

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 50

When may re-examination of a witness happen? (Must know)

Answer 50

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.

If additional evidence is allowed by the judge, then the other parties must be allowed to cross-examine on the additional evidence, and the judge may also allow further re-examination on matters arising out of that cross-examination.

Question 51

Explain “Privilege against self-incrimination” as defined by section 62(2) (Must Know)

Answer 51

62 Claiming privilege against self-incrimination in court proceedings

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 52

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

Answer 52

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 53

What does propensity include and exclude?

Answer 53

Propensity includes,

• propensity as to actions
• propensity as to state of mind (eg a lack of inhibition, a love of violence).

Propensity 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
• the cause of action of the proceeding in question.

Question 54

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

Answer 54

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