Evidence Q & A

Question 1

Where the onus falls on the defence to prove a particular element, the standard of proof required is:

Answer 1

Where the onus falls on the defence to prove a particular element, the standard of proof required is:

on the balance of probabilities

Question 2

Circumstantial evidence has been defined as:

Answer 2

Circumstantial evidence has been defined as:

This is evidence of circumstances that do not directly prove any fact in issue but allows inferences about the existence of those facts to be drawn.

Question 3

Once the judge has granted an application to treat a witness as hostile, that witness may be:

1. asked leading questions
2. questioned as to prior inconsistent statements
3. asked any question whatsoever whether relevant to the matter under inquiry or not
4. tested on such matters as the accuracy of his/her memory and perception

Answer 3

Once the judge has granted an application to treat a witness as hostile, that witness may be:

1. asked leading questions
2. questioned as to prior inconsistent statements
3. asked any question whatsoever whether relevant to the matter under inquiry or not
4. tested on such matters as the accuracy of his/her memory and perception

1, 2 and 4 only are correct

Question 4

What is the meaning of veracity?

Answer 4

What is the meaning of veracity?

a disposition to refrain from lying

Question 5

The general purpose of the examination-in-chief is to:

Answer 5

The general purpose of the examination-in-chief is to:

Elicit testimony that supports the case of the party calling that witness

Question 6

Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offence:

Answer 6

Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offence:

false oaths

Question 7

A witness is eligible to give evidence if:

Answer 7

A witness is eligible to give evidence if:

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

Question 8

Which is not an example where judicial notice can be taken?

Answer 8

Which is not an example where judicial notice can be taken?

the date of birth of a complainant under 16

Question 9

An oath and affirmation may be taken by:

Answer 9

An oath and affirmation may be taken by:

any witness 12 years and over involved in a proceeding

Question 10

Where an expert is called to give specialised evidence:

Answer 10

Where an expert is called to give specialised evidence:

the expert must demonstrate to the court that he/she has the qualifications to be deemed an expert

Question 11

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

Answer 11

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

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

Define a hostile witness pursuant to Section 4 of the Evidence Act 2006

Answer 12

Define a hostile witness pursuant to Section 4 of the Evidence Act 2006

∙ 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 13

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

Answer 13

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

∙ Relevance
∙ Reliability
∙ Unfairness
∙ Public Interest

Question 14

(a) What is a leading question? (b) What is the general rule in relation to leading questions?

Answer 14

(a) What is a leading question? (b) What is the general rule in relation to leading questions?
(a) a leading question as one that directly or indirectly suggests a particular answer to the question
(b) The general rule is that leading questions may not be asked during examination-in-chief or re examination

Question 15

Briefly explain what a “voir dire” is:

Answer 15

Briefly explain what a “voir dire” is:

A voir dire is:

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

∙ It is conducted without a jury being present.

Question 16

Define the following terms:

(a) Witness

(b) facts in issue

Answer 16

Define the following terms:

(a) Witness
(b) facts in issue

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

Facts in Issue: are those which the prosecution must prove in order to establish the elements of the offence or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.

Question 17

What does “propensity evidence” mean and what does it not include?

Answer 17

What does “propensity evidence” mean and what does it not include?

40 Propensity rule
(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 18

List four categories of privilege

Answer 18

List four categories of privilege

∙ Privilege against self-incrimination
∙ Professional confidences
∙ Public policy
∙ Police informants

Question 19

What is the definition of a hearsay statement?

Answer 19

What is the definition of a hearsay statement?

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 20

Explain beyond reasonable doubt / balance of probabilities?

Answer 20

Explain beyond reasonable doubt / balance of probabilities?

Beyond reasonable doubt is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict.

Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.

Question 21

What is the judges role in a trial by jury? (Pg 105)

Answer 21

What is the judges role in a trial by jury? (Pg 105)

When a judge is presiding over a trial by jury, he or she must:
∙ decide all questions concerning the admissibility of evidence

∙ determine whether there is any evidence that is fit to be submitted to the jury for its consideration

∙ 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 22

Can a witness refresh their memory during court – explain?

Answer 22

Can a witness refresh their memory during court – explain?

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.”

∙ the leave of the judge must be obtained

∙ the document must be shown to every other party in the proceeding

Question 23

What is a Presumption of fact and provide an example?

Answer 23

What is a Presumption of fact and provide an example?

Presumptions of fact are those that the mind naturally and logically draws from the given facts.

For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods. Presumptions of fact are simply logical inferences, and so are always rebuttable

Question 24

Provide four examples of Purpose of evidence law:

Answer 24

Provide four examples of Purpose of evidence law:

(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 25

Define Expert witness?

Answer 25

Define Expert witness?

Section 4 of the Act defines an “expert” as a “person who has specialized knowledge or skill based on training, study or experience”. The judge must determine whether the expert witness is properly qualified to testify.

Question 26

What are the two exceptions to the general prohibition on previous consistent statement (section
35 of the evidence act 2006)?

Answer 26

What are the two exceptions to the general prohibition on previous consistent statement (section
35 of the evidence act 2006)?

(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

Question 27

Section 125(1) Does a judge have to give a warning?

Answer 27

Section 125(1) Does a judge have to give a warning?

Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults.

Thus prohibits:
- the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant.

Question 28

In any proceeding, the judge may disallow, or direct a witness that they are not obliged to answer any question. Name four of those questions that a judge could consider to disallow? (Pg 91)

Answer 28

In any proceeding, the judge may disallow, or direct a witness that they are not obliged to answer any question. Name four of those questions that a judge could consider to disallow? (Pg 91)

Improper 
Unfair 
Misleading 
Needlessly repetitive, or  
Expressed in language that is too complicated for the witness to understand.

Question 29

What are the two purposes of cross examination? (Pg 90)

Answer 29

What are the two purposes of cross examination? (Pg 90)

∙ 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 30

Judicial directions about evidence which may be unreliable

Section 122(2) types of evidence – list 4

Answer 30

Judicial directions about evidence which may be unreliable

Section 122(2) types of evidence – list 4

(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 31

List and describe two “alternative ways” of giving evidence?

Answer 31

List and describe two “alternative ways” of giving evidence?

In an alternative way – in the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing.

The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding.

The criteria under that Act does not limit the operation of ss103-106 of the Evidence Act 2006, which provides for applications

Question 32

Two cases where evidence is excluded about prejudicial and relevant evidence

S.7(1)(a)(b) EA06

Answer 32

Two cases where evidence is excluded about prejudicial and relevant evidence

S.7(1)(a)(b) EA06

7 Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.

Question 33

Before giving evidence in court, witnesses may refresh their memory from:

Answer 33

Before giving evidence in court, witnesses may refresh their memory from:

Either of the above

Original statement or DVD statement

Question 34

Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding?

Answer 34

Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding?

Any person who is eligible to give evidence is compellable

Question 35

A person is unavailable as a witness when:

Answer 35

A person is unavailable as a witness when:

The person is overseas and can’t be contacted

Question 36

A presumption of law:

Answer 36

A presumption of law:

May be rebuttable or irrebuttable

Question 37

When giving evidence in court, you should address the judge as:

Answer 37

When giving evidence in court, you should address the judge as:

Your honour or Sir/Ma’am

Question 38

The Court has a discretion to include propensity evidence against a defendant, if:

Answer 38

The Court has a discretion to include propensity evidence against a defendant, if:

The probative value of the evidence outweighs its prejudicial effect

Question 39

In relation to privilege of medical practitioners, “protected communication” refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient:

1. Who is suffering for a drug dependency
2. Who has any other condition or behaviour that manifests itself in criminal conduct
3. Who has provided information concerning their family
4. Who is suffering from a mental illness

Answer 39

In relation to privilege of medical practitioners, “protected communication” refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient:

1. Who is suffering for a drug dependency
2. Who has any other condition or behaviour that manifests itself in criminal conduct
3. Who has provided information concerning their family
4. Who is suffering from a mental illness

1 and 2 are correct

Question 40

A witness is deemed to be hostile when:

Answer 40

A witness is deemed to be hostile when:

Refuses to answer questions or deliberately withholds information

Question 41

It is not necessary in court to prove “uncontroverted facts.” These are admitted as:

Answer 41

It is not necessary in court to prove “uncontroverted facts.” These are admitted as:

Judicial notice

Question 42

Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must…

Answer 42

Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must…

a. Be that of an “expert”
b. Comprise “expert evidence”
c. Offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding
d. All of the above (Is the answer)

Question 43

The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. What are the two exceptions to this rule?

Answer 43

The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. What are the two exceptions to this rule?

There are exception to the general principle, which means that in some cases the burden of proof reverses and falls on the defendants:

∙ Where there exist specific statutory exceptions

∙ Defence of insanity

Question 44

The fundamental condition for the admissibility of evidence is that it must be relevant. State the execptions? Relevant evidence is NOT usally admissible?

Answer 44

The fundamental condition for the admissibility of evidence is that it must be relevant. State the execptions? Relevant evidence is NOT usally admissible?

7 Fundamental principle that relevant evidence admissible

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

Question 45

Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters.

Answer 45

Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters.

∙ Lack of veracity on the part of the person when under a legal obligation to tell the truth

∙ That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity

∙ Any previous inconsistence statements made by the person

∙ Bias on the part of the person

∙ A motive on the part of the person to be untruthful

Question 46

Define the following terms:

(a) Circumstantial evidence

(b) Statement

Answer 46

Define the following terms:

(a) Circumstantial evidence
(b) Statement

(a) This is evidence of circumstances that do not directly prove any fact in issue but which allows inferences about the existence of those facts to be drawn.
(b) A statement 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 47

What are presumptions of Law and presumptions of fact?

Answer 47

What are presumptions of Law and presumptions of fact?

(a) Presumptions of law are inferences that have been expressly drawn by law from particular facts. Presumptions of law may be conclusive or rebuttable
(b) Presumptions of fact are those that the mind naturally and logically draws from the given facts. For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

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

Question 48

The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. According to section 16(1) of the Evidence Act 2006, circumstances in relation to a statement by a person who is not a witness, include…

Answer 48

The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. According to section 16(1) of the Evidence Act 2006, circumstances in relation to a statement by a person who is not a witness, include…

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

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

Question 49

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

Answer 49

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

Justifications for the rule derive from this rationale:

∙ Where a witness offers a bare opinion it hold little probative weight

∙ There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be that the evidence would confuse the tribunal of fact and prolong proceedings

∙ A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible – for example where an opinion is based largely on propensity evidence.

Question 50

A - Describe what privilege is in relation to the giving of evidence
B – Name two privileges outlined in the Evidence Act 2006

Answer 50

A - Describe what privilege is in relation to the giving of evidence
B – Name two privileges outlined in the Evidence Act 2006

(a) A privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.
(b) Any two of the following:

∙ Privilege for communications with legal advisors – s54

∙ Privilege and solicitors trust accounts – s55

∙ Privilege for preparatory materials for proceedings – s56

∙ Privilege for settlement negotiations or mediation – s57

∙ Privilege for communications with ministers of religion – s58

∙ Privilege for information obtained by medical practitioners and clinical psychologists – s59

∙ Privilege against self-incrimination – s60

∙ Informer privilege – s64

Question 51

The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination. What are the three reasons why leading questions are not generally permitted?

Answer 51

The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination. What are the three reasons why leading questions are not generally permitted?

∙ There is a natural tendency for people to agree with suggestions put to them by saying “yes” even if those suggestions do not precisely accord with their own view of what happened.

∙ Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony

∙ There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

Question 52

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

Answer 52

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

Section 16(2) defines what is meant by ‘unavailable as a witness” 
For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person – 

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

Question 53

What are the two purposes of cross examination? (Pg 90)

Answer 53

What are the two purposes of cross examination? (Pg 90)

∙ 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 54

What is the definition of Corroboration and name two offences that must have corroborating evidence? (pg73)

Answer 54

What is the definition of Corroboration and name two offences that must have corroborating evidence? (pg73)

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.

There are two types of offence – perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s 73 Crimes Act)

Question 55

You need to explain to the parents of an 11 year old witness of the process prior to giving evidence, what would you tell them? (Pg 78)

Answer 55

You need to explain to the parents of an 11 year old witness of the process prior to giving evidence, what would you tell them? (Pg 78)

Witnesses under the age of 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 56

Explain the term “facts that prove the charge” (Pg 18)

Answer 56

Explain the term “facts that prove the charge” (Pg 18)

Good evidence establishes what you are trying to prove (in light of the other purposes in s 6). The facts must prove the elements of the charge, and the evidence should be made up of facts that prove that charge.

In each case, the actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 57

In a proceeding, evidence maybe given in several ways, describe two? (Pg 8)

Answer 57

In a proceeding, evidence maybe given in several ways, describe two? (Pg 8)

In the ordinary way either orally in a courtroom in the presence of a judge (or judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge; or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible, and it is the personal statement of the deponent or maker;

In an alternative way – in the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss103-106 of the Evidence Act 2006, which provides for applications

Question 58

Evidence called by either party after the completion of their own case in order to rebut something arising during a trial, can only be admitted with the leave of the Court. Such leave may be given to the prosecution if the further evidence? (Pg 93)

Answer 58

Evidence called by either party after the completion of their own case in order to rebut something arising during a trial, can only be admitted with the leave of the Court. Such leave may be given to the prosecution if the further evidence? (Pg 93)

∙ Relates to a purely formal matter

∙ Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)

∙ Was not available or admissible before the prosecution’s case was closed, or

∙ Is required to be admitted in the interests of justice for any other reason.

Question 59

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

Answer 59

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

∙ To decide all questions concerning the admissibility of evidence

∙ To determine whether there is any evidence that is fit to be submitted to the jury for its consideration

∙ To explain and enforce the general principles of law that are applicable to the point at issue

∙ To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Question 60

Something about balancing the probative value of evidence against the risk that it will? (Pg 23)

Answer 60

Something about balancing the probative value of evidence against the risk that it will? (Pg 23)

The s 8 test involves balancing the probative value of evidence against the risk that it will:

∙ Have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or

∙ “Needlessly prolong the proceeding” (s8(1)(b)).

Question 61

What was held in R V Wanhalla in relation to reasonable doubt? (Pg 13)

Answer 61

What was held in R V Wanhalla in relation to reasonable doubt? (Pg 13)

R v Wanhalla
What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

Question 62

In any proceeding, the judge may disallow, or direct a witness that they are not obliged to answer any question. Name four of those questions that a judge could consider to disallow? (Pg 92)(S.85(1))

Answer 62

In any proceeding, the judge may disallow, or direct a witness that they are not obliged to answer any question. Name four of those questions that a judge could consider to disallow? (Pg 92)(S.85(1))

∙ Improper

∙ Unfair

∙ Misleading

∙ Expressed in language that is too complicated for the witness to understand.

Question 63

The court has discretion to include propensity evidence against a defendant, if:

Answer 63

The court has discretion to include propensity evidence against a defendant, if:

The probative value of the evidence outweighs its prejudicial effect

Question 64

Circumstantial evidence has been defined as:

Answer 64

Circumstantial evidence has been defined as:

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 (e.g. the defendant was seen in the vicinity of the scene of the crime).

Question 65

A person is unavailable as a witness when:

Answer 65

A person is unavailable as a witness when:

The person is overseas and can’t be contacted

Question 66

Before giving evidence in court, witnesses may refresh their memory from:

Answer 66

Before giving evidence in court, witnesses may refresh their memory from:

Their original statement or deposition

Either of the above

Question 67

A presumption of fact is:

Answer 67

A presumption of fact is:

Always rebuttable

Question 68

Before giving evidence:

Answer 68

Before giving evidence:

The probative value of the evidence outweighs its prejudicial effect

Question 69

The general purpose of the examination-in-chief is to:

Answer 69

The general purpose of the examination-in-chief is to:

Elicit testimony that supports the case of the party calling that witness

Question 70

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

Answer 70

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

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

Question 71

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

Answer 71

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

Judicial notice

Question 72

A witness is eligible to give evidence if…

Answer 72

A witness is eligible to give evidence if…

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

Question 73

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

Answer 73

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

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

∙ Where the maker of a statement is not called as a witness, there is no opportunity to cross examine them regarding its contents, the circumstances in which it was made, and so on.

∙ The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question

∙ There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people

∙ The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be a ‘reasonable assurance’ of reliability, which means that the evidence must be reliable enough for the fact finder to consider it, and draw its own conclusions as to weight.

Question 74

What is a leading question?

Give two exceptions to the general rule concerning leading questions

Answer 74

What is a leading question?

Give two exceptions to the general rule concerning leading questions

(a) A leading question suggests the desired answer or assumes that disputed facts exist
(b) Any two of the following:

∙ Introductory or disputed facts

∙ Identification

∙ Assisting memory

∙ Contradiction

∙ Hostile witnesses

Question 75

Define the following terms:

a. Direct evidence

b. Admissible evidence

Answer 75

Define the following terms:

a. Direct evidence
b. Admissible evidence

a. Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.
b. Admissible evidence: evidence is admissible if it is legally able to be received by a court

Question 76

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

Answer 76

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

Section 16(2) defines what is meant by ‘unavailable as a witness” 
For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person –

a. Is dead, or
b. Is outside New Zealand and is not reasonably practicable for him or her to be a witness, or
c. Is unfit to be a witness because of age or physical or mental condition, or
d. Cannot with reasonable diligence be identified or found, or
e. Is not compellable to give evidence

Question 77

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

Answer 77

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

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

∙ The topic of cross-examination must deal with ‘significant matters’ in the proceeding

∙ The matters must be ‘relevant’ and ‘in issue’ in the proceeding

∙ The matters must ‘contradict the evidence of the witness’ and

∙ The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters’.

Question 78

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

Answer 78

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

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

∙ To respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or

∙ On a claim of recent invention on the part of the witness

Question 79

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

Answer 79

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

there are two types of offence –

perjury and related offences (s108, 110 and 111 Crimes Act 1961) and

treason (s73 Crimes Act 1961)

Question 80

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

Answer 80

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

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

• 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 81

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

Answer 81

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

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

∙ The evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant

∙ The evidence relates directly or indirectly to his or her reputation in sexual matters.

Question 82

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

Answer 82

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

When a witness has been declared hostile, the prosecutor may conduct the examination-in-chief like a cross examination.

The witness may be (any two of):
Asked leading questions

∙ Challenged with regard to how they know the facts about that which they are testifying ∙ Tested on such matters as to their accuracy of memory and perception.

Question 83

Explain what is meant by “burden of proof”

Answer 83

Explain what is meant by “burden of proof”

Burden of proof means:

∙ Whoever asserts something must prove it

∙ In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt.

∙ In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.

Question 84

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

Answer 84

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

∙ To decide all questions concerning the admissibility of evidence

∙ To determine whether there is any evidence that is fit to be submitted to the jury for its consideration

∙ To explain and enforce the general principles of law that are applicable to the point at issue

∙ To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Question 85

Name the 3 factors you take into consideration regarding the “weight of evidence”

Answer 85

Name the 3 factors you take into consideration regarding the “weight of evidence”

• 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