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Evidence Module > Evidence - Short Answer Questions > Flashcards

Evidence - Short Answer Questions Flashcards

1
Q
  1. What is the definition of Relevance. (p7)

Key Word
TP/DACDP

EiR iihaT tPoD ati oCtt DoaP

A

Key Words:
Tendency prove / disprove anything consequence determination proceeding.

Relevance
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding. S7 (3) EA06

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2
Q
  1. What is the definition of Facts in issue (p7)

Key Words
PPEEO
DPSDRCBoP

PmP tEtE otO o
DmP tSwaD IRow hos CtBoP

Exam 2

A

Key Words:
Prosecution Prove Establish Elements offence.
Defendant Prove Succeed Defense Respect of Which Carries Burden Proof.

Facts in issue are those which:
• prosecution must prove to establish the elements of the offence or
•defendant must prove to succeed with a defense in respect of which he or she carries the burden of proof

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3
Q
  1. What is a witness (p9)

Key Words
PGEaCEP

PwgE aiatb CE iaP

Exam 2

A

Key Word
Person Giving Evidence Able Cross Examined Proceeding

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

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4
Q
  1. Giving evidence may be given in what ways?

Key Words
OW-OCPJJPCP
AW-CUSD/P OC VRBH
AOW-PBEA06 o ORE

O W - eO iaC itPoa J,J,PttP, C aMotP abtJ.
A W - itC bUtS tDoOP. OtC obVR mBtH.
A O W - Pf btEA 2006 oaORE.

A

Key Words:
Ordinary Way - Orally Courtroom Presence Judge Jury Parties Counsel Public
Alternative Way - Courtroom Unable See Defendant/Persons Outside Courtroom Video Recording Before Hearing
Any Other Way - Provided By Evidence Act06 or Other Relevant Enactment

  • ordinary way – either orally in a courtroom in the presence of a judge, jury, parties to the proceedings, counsel and members of the public allowed by the judge
  • alternative way – in the courtroom but unable to see the defendant or other persons. Outside the courtroom or by video recording made before the hearing.
  • any other way – provided for by the evidence Act 2006 or any other relevant enactment.
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5
Q
  1. Definition of Hearsay statement, (p 9)

Key Words
MPOWOEPPTC

Stwm baP ottW aio iE itP tPtT oiC

in Exam 1 & 2

A

Hearsay statement

Key Words:
Made Person Otherthan Witness Offered Evidence Proceedings Prove Truth Contents

Statement that was made by a person other than the witness and is offered in evidence in the proceedings to prove the truth of its contents

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6
Q
  1. Definition of veracity (p9)

Key Words
DRLG/P

DoaP tRfL WG oiaP

A

Veracity

Key Words:
Disposition Refrain Lying Generally/Proceeding

disposition of a person to refrain from lying whether generally or in a proceeding

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7
Q
  1. Definition of Propensity (p9)

Key Words
ACW PSM IE ACEO PAI

EaaPP tAiaCW ohaP SOM aIEo
ACEoO
wwaP iA thbi

A

Propensity evidence

Key Words:
Act Certain Way-Particular State Mind-Including Evidence-Acts Circumstances Events Omissions
Person Alleged Involved

Evidence about a person’s propensity to act in a certain way or have a particular state of mind and includes evidence of:
Acts, Circumstances ,Events or Omissions,
with which a person is alleged to have been involved.

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8
Q
  1. Definition of Direct Evidence (p9)

Key Words
GbW Fii-SHOE

aE gbaW ataFii thos hSHoOE

A

Direct evidence

Key Words:
Given by Witness-Fact in Issue-Seen Heard Otherwise Experienced

Any evidence given by a witness as to a Fact in Issue that he or she has Seen Heard or Otherwise Experienced.

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9
Q
  1. Definition of Circumstantial Evidence (p9)

Key Words
CDDPAFiiAiEFD

EoC tdn DPaFii bwaia tE otF tbD

A

Circumstantial Evidence

Key Words
Circumstances-Don’t Directly Prove-Any Fact in issue-allows Inference-Existence Facts Drawn

Evidence of circumstances that do not directly prove any fact in issue but which allows inference about the existence of those facts to be drawn.

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10
Q
  1. Definition of Corroboration (p9)

Key Word
IECSF-OEG-IDCC

IE tTt CoSsF owoE ig aitD itCC

A

Corroboration

Key Words
Independent Evidence Confirm/Support Fact-Other Evidence Given-Implicates Defendant Crime Charged

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

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11
Q
  1. What is the Woolmington Principle – The Presumption of Innocence (p10)

Key Words
FPCLPI
ESSSEBOPLCPREO

tFP ICL it PoI.
TPE tStSSE tBoP Lcwt PiR taot EotO

A

key Words:
Fundamental Principle Criminal Law Presumption Innocents.
Establishes Subject Specific Statutory Exceptions Burden of Proof Lies Clearly Prosecution Relation Elements Offence

The fundamental principle in criminal law is the presumption of innocents.
This principle establishes that subject to specific statuary exceptions the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

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12
Q
  1. What was held in Woolmington v DPP

Key Words
PDPPGSGISE
BoPLPPEO

Pha DtPtPG SttD oIoaSE.
tBoP LCitH oPtPt EotO

In exam 1 & 2

A

Key Words:
Prosecution Duty Prove Prisoners Guilt Subject Defense Insanity/Statutory Exception.
Burden Proof Lies Prosecution Prove Elements Offence

prosecution has a duty to prove the prisoner’s guilt subject to the defense of Insanity OR any statutory exception. The burden of proof lies clearly in the hands of prosecution to prove the elements of the offence.

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13
Q
  1. Exceptions to the Principle that the burden of proof is on prosecution (p12)

Key Words
BoPRFoD
ALDI - SSEE - UASC

BoP RaF otDw:

  1. tAWt LaDoi
  2. SSEe
  3. UASC
A 
Key Words:
Burden of Proof Reverses Falls On Defendant
Accused Lays Defense Insanity 
Specific Statutory Exception Exit
Under Age Sex Cases

Burden of proof reverses and falls on the defendant when:
• The accused wishes to lay a defence of Insanity 23(1) CA61
• Specific statutory exceptions exist (202A weapons)
• Under age sex cases – under 16 s134 CA61

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14
Q
  1. MILLER v Minster of Pensions – Balance of Probabilities (p14)

Key Words
DRPPE BoP SS MPTN

wtDi RtP aPE sai oot BoP,
im SS tiim Ptn.

In Exam 1

A

key Words
Defense Required Prove Particular Element-Balance of Probabilities-Simply Show-More Probable than not

Where the defense is required to prove a particular element such as insanity or on the balance of probabilities it must simply show that it is more probable than not.

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15
Q
  1. What is the purpose of the Evidence Act?

Key Words
AHSJDP

iAt HStJ DoP

A

Key Words:
Aims Help Secure Just-Determination Proceedings

It aims to help secure the just determination of proceedings.

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16
Q
  1. 6 Purposes of the Evidence Act (p 17)
A. P FEAL R
B. P RERiRA NZBoR A1990 a
C . PFPW a
D. PRCOPi a
E. AUED a
F. EALoE

In Exam 1

A

A) Providing for facts to be established by the application of logical rules and
B) By providing rules of evidence that recognise the importance of the rights affirmed by the NZ Bill of Rights Act 1990 and
C) Promoting fairness to parties and witness 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

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17
Q
  1. Explain - Judicial Notice (p19)

Key Words
CJNFDFE o DJETENEFE

waCt JN oaF,
iD tiw ftFE,
ow DtJtDs eTEhnb EttFE.

A

Key Words:
Court Judical Notice Fact Delares Fact Exists
Directs Jury-Even Though Evidence-Not Established Fact Exists

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

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18
Q

What are the 4 principles Court refers to when deciding whether the evidence is admissible? (p26)

Key Words
RRUPI

In Exam 1 & 2

A
  • Relevance
  • Reliability
  • Unfairness
  • Public interest
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19
Q
  1. What is the test for Relevance?

Key Words
M-EOMFIICDP
P-ELTPDMPO

M aWtE itC iOoa Moa Fiio CttDo tP S7(3)
P aWtE haL TTPoD tMP o WiiO S7(3)

MC Exam 2

A

Key Words:
Materiality Evidence Offered Matter Fact In Issue Consequence Determination Proceedings
Probativeness Evidence Logical Tendency Prove/Disprove Material Propostion Offered

Materiality asks whether the evidence in the case is offered on a matter or a fact in issue of consequence to the determination of the proceedings s7 (3)

Probativeness asks whether the evidence has a logical tendency to prove or disprove the material proposition on which it is offered s 7 (3)

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20
Q
  1. Evidence can be relevant and yet inadmissible because it is unfair. In what two ways does it arise? (P22) – (fairness and general exclusion under s8)

Key Words
UPP
OCAAAU

ii whs UP it P
wih bOi Ct wm iAa tAU

In Exam 1

A

Key Words:
Unfair Prejudice in the Proceedings
Obtained Circumstances Admission against Accused Unfair

  • If it would have some unfair prejudice in the proceedings
  • Where It has been obtained in circumstances that would make its admission against the accused unfair.
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21
Q
  1. What is a Voir Dire? (p24)

Key Words:
S15 GEW PFN DEAP

S15 EA 2006 GEg baW tPtF NfD Wso Esb AiaP.

In Exam 1

A

Key Words:
S15 Governs Evidence Witness Prove Facts Necessary Deciding Evidence Admitted Proceeding

Section 15 evidence act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

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22
Q
  1. Most of the laws of evidence concern the things that cannot be given in evidence. By and large they are based on common sense. What are the exclusive rules of evidence?

HOPVI IOE

In Exam 1

A

HOPVII

  • Hearsay
  • Opinion
  • Propensity
  • Veracity
  • Identification
  • Improperly obtained evidence
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23
Q
  1. What are the matters that the judge must consider when the veracity of a witness is questioned - section 37 (p30)
A. LoV otP otP wua LO tttt.
B. taP hbC o1o MOt iaP fDo LoV.
C. aPIS mbtP.
D. Bop otP.
E. Mop otP tBU.

Exam 2?

A

a) lack of veracity on the part of the person when under a legal obligation to tell the truth.
b) That a 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 part of the person
e) Motive on part of the person to be untruthful

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24
Q
  1. In deciding whether to give permission for the prosecution to question / offer evidence, to the defendant about his or her veracity the judge may take into account Sec 38(3) - (p32)

A. tEtw tDV otVo aPW hbP iii tDE.
B. tTt hES aCa WtP StgE.
C. WaE gbtD aV wEbP.

A

a) The extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendants 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 elected by prosecution

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25
Q
  1. What are the rules for Propensity (p33)

b) dniE oaA oOti -
ootE otO fwt Pib Tfo
tCoA it PiQ.

A

In this section and sections 41 to 43 the rules of propensity:
b) 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 for or
• The cause of action in the proceedings in question

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26
Q
  1. In relation to a statement by a person who is not a witness the Evidence Act defines circumstances as? - Section 16(1) (p42)

Key words: N C M V AO

A. t Not Sa
B. t Cot Sa
C. t CtR tt Mot Sa
D. a CtR tt Vot Pa
E. a CtR tt Aot OotP.
A

a) The nature of the statement and
b) The content 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.

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27
Q
  1. When is a witness deemed Unavailable? section 16 (2) (p41)

A. iD
B. iO NZ aiin RPf HoH tbaW o
C. iUt BaW BoA oP oMC o
D. in CtgE.

In Exam 1 & MC Exam 2

A

a) Is dead
b) Is outside NZ and it 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) Is not compellable to give evidence

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28
Q
  1. Rule against opinion evidence? (p44) *

i h l P W.
t i a D t a W o O E w U t F o t T o F.
O c C t T o F a P t P.
a W E o O m b b o O E w I S E w b I.

Exam 2

A

It holds little probative weight
• There is a danger that a witness offering opinion evidence will usurp the function of the tribunal of fact.
Opinion could confuse the tribunal of facts and prolong the 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)

29
Q
  1. General admissibly of opinions (p45)

a WmS aOiE iaP it OiN tet Wt Cot FF tUwt W s,HoOP.

Exam 2

A

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.

30
Q
  1. What 3 points must Expert Witness evidence comply with?(p46)

btoaE.
CEE a
OSH ttFF iU oO EoA afit P

A

If the evidence is expert opinion evidence then in order to comply with s25 the opinion must:
• Be that of an expert
• Comprise expert evidence and
• Offer substantial help to the fact finder in understanding other opinion evidence or ascertaining any fact in the proceedings

31
Q
  1. Qualification as an expert. Define expert witness? (p47)
  • aEia pwh SKoS, boT, SoE.
    *tEiR tDtt Cthos htRQ tbD aEit FiQ.
    tEmb QtFS aT, fEob.
    EOb aE sbw hoh aoE.

Exam 2

A
  • An expert is a person who has specialized knowledge or skill, based on training study or experience.
  • The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed an expert in the field in question.
  • The expert may be qualified through formal study and training, from experience or both.
  • Evidence offered by an expert should be within his or her area of expertise.
32
Q
  1. Eligibility and Compellability of a witness?

Eita Lat gEo BoPaD.
Citc bRt gEat wf bPaD.
OaW hEt WbabS, tau COt Aat Qptt.

A
  • Eligible if they are lawfully able to give evidence on behalf of both prosecution and defence.
  • Compellable if they can be required to give evidence against their will for both prosecution and defence.
  • Once a witness has entered the witness box and been sworn they are under compellable obligation to answer all the questions put to them.
33
Q
  1. What are the privileges where a person cannot be compelled to give certain evidence in a court proceeding? (p57)
  2. Cw LA.
  3. Cw MoR.
  4. SNoM.
  5. StA.
  6. PmfP.
  7. Pa S-I.
  8. IOb MP aCP.
  9. IP.

In Exam 1 & 2

A
  • Communications with legal advisors
  • Communications with Minsters of religion
  • Settlement negations or mediation
  • Solicitors trust accounts
  • Preparatory material for proceedings
  • Privilege against self-incrimination
  • Information obtained by medical practitioners and clinical psychologists
  • Informer privilege
34
Q
  1. Define privileged evidence?

tRtRt Dot PD oww ObA.

In Exam 1

A

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

35
Q
  1. What is information Obtained within Solicitor – client privilege (p62)
  2. Cmb itbC.
  3. Cmb mft PoOo GLS (I A R).
  4. PiV wtP SLS bicbW.
  5. Cit BC twO dn Mtt OwH cgtE.
  6. Pd nEt Cmf aDPot EoAat CoP tCaO.
A
  • Communication must be intended to be confidential
  • Communication must be made for the purpose of obtaining or giving legal services. (including authorised representatives)
  • Privilege is vested with the person seeking legal services but it can be waivered.
  • Communication intended to be confidential that was overheard does not mean that the others who heard can give that evidence.
  • Privilege does not extend to communications made for any dishonest purpose or to enable or aid anyone to commit or plan to commit an offence
36
Q
  1. Preparatory materials for proceedings – What are the privileges in regards to preparing for a proceeding?
  2. CoIm, R,CoP ftPP oP faP oaFP.
  3. aP haP it ao RGCB aPttP oFP.
A

1) communication or information made, received, complied or prepared for the primary purpose of preparing for a proceeding or a future proceeding.
2) A person has a privilege if they are, on reasonable grounds contemplating becoming a party to the proceedings or future proceedings.

37
Q
  1. When is Corroboration used as independent evidence to confirm or support a fact (A-D) (p73)

A. P
B. FO
C. FSoD
D. T

A

A) Perjury and
B) False oaths
C) False statements or declarations
D) Treason

38
Q

What is the Judges role in trial by Jury? (p105)

  1. It Jot RoL bwt Eit bWo ihbA.
  2. EaEt GPoL Att PaI.
  3. DaQ Ct AoE.

In Exam 1

A
  1. Instruct the jury on the rules of law by which the evidence is to be weighed once it has been admitted.
  2. Explain and enforce the general principles of law applying to the point at issue.
  3. Decide all questions concerning the admissibility of evidence.
39
Q
  1. Oaths and affirmations (p78)

W 12 yoO mta Oo Ab gE.
S 77 - W u 12 y m:
1. bib tJot io TtT an TL a
2. abG ti maP tTtT BGE.

MC Exam 2

A

Witness’s 12 years or older must take an oath or affirmation before giving evidence,
s77 Witness 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.

40
Q
  1. Definition of leading questions (p83)

Ot DoI SaP AttQ.

A

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

41
Q
  1. The prohibition on leading questions is based on the belief that it will produce unreliable evidence. What are the reasons for Prohibition for leading questions?
  2. NTTA wSptt - eis dn paw tov.
  3. RS a GoT.
  4. DoMoCoE tCCoO bCaW.
A
  1. Natural tenancy to agree with suggestions put to them. Even if suggestions do not precisely accord with their own view.
  2. Reducing spontaneity and genuineness of testimony.
  3. Danger of manipulation or construction of evidence through collusion, conscious or otherwise between counsel and witness
42
Q
  1. When are leading questions permitted?
  2. wt QR tio UM o
  3. WtC oat oPo
  4. t Jit Eot JD atQ
A
  • When the questions relate to introductory or undisputed matters or
  • With the consent of all the other parties or
  • The judge in the exercise of the Judge’s discretion allows the question
43
Q
  1. Refreshing memory in court (p85)
  2. t Lot JmbO.
  3. t Dmb Steo PitP.
  4. S90(5) RtD thb moA baW aat whoh MwF.

Exam 2

A
  • The leave of the judge must be obtained
  • The document must be shown to every other party in the proceedings
  • S90(5) requires the document to have been made or adopted by a witness at a time when his or her memory was fresh. Whether a document was made while the memory was fresh depends on the circumstances of the individual case.
44
Q
  1. When is a previous statement of a witness that is consistent with the witness’s evidence admissible in court? Previous consistent statements rule Sec 35 (2) (p 88/89)
  2. SiN tRt aCtt WVoA - Boa PISotW o
  3. CoR Iot pot W
A
  1. 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
  2. Claim of recent invention on the part of the witness.
45
Q
  1. Hostile witness Cross examination questions? (p90)
  2. a LQ
  3. a Qdt Pt Ao MaP
  4. a Qat PIS a
  5. o Ct ViE foW (PiO SH i AWV)
A
  • Asking leading questions
  • Asking questions designed to probe the accuracy of memory and perception
  • Asking questions as to prior inconsistency statements and
  • Other challenges to veracity including evidence from other witnesses (provided it offered substantially helpful in assessing witness’s veracity)
46
Q
  1. Hostile witness is defined as? (p90)
  2. Eo AtE al oV wgE - Utt Pwct W -oaM tW m RbS thK o
  3. Eo AtE aI tbU - ttP w ctW - bge i waS mbt W o
  4. Rt AQ o DWE.

In Exam 1 & 2

A
  1. Exhibits or appears to exhibit a lack of veracity – when giving evidence – unfavourably to the party who called the witness – on a matter the witness may reasonably be supposed to have knowledge.
  2. Exhibits or appears to exhibit an intention to be untruthful - to the party who called the witness - by giving evidence inconsistent with a statement made by the witness or
  3. Refuses to answer questions or deliberately with holds evidence.
47
Q
  1. What is the Purpose of Cross examination? (p91)
  2. EIS tCftP CtCE.
  3. C tAo tTG iEiC

(e.g. bc dot wv obect).

In Exam 1

A

1) Elicit information supporting the case for the party conducting the cross examination
2) Challenge the accuracy of the testimony given in evidence in chief.

(Example by casting doubt on the witness’s veracity or by eliciting contradictory testimony)

48
Q
  1. Unacceptable questions disallowed by a Judge? - Sec 85(1) (p92)
  2. M
  3. U
  4. L t C f W t U
  5. I
  6. N R
A

MULIN

Misleading
Unfair
Language too complicated for witness to understand 
Improper
Needlessly Repetitive
49
Q
  1. What are the 4 points of rebuttal evidence (p94)

MANP

  1. MA oot Cot D, Row cn Rh bF.
  2. Aiio J faoR.
  3. N AoA BtP CwC o
  4. PFM
A
  1. Matter arising out of the conduct of the Defence, Relevance of which could not reasonably have been foreseen.
  2. Admitted in the interests of justice for any other reason.
  3. Not available or admissible before the prosecution’s case was closed.
  4. Purely formal matter
50
Q
  1. Judicial warnings to the jury from the judge - Sec 122 – 127 EA06 (p95)

UWIDDD

  1. UE
  2. WaL
  3. IE
  4. DaC woGE
  5. DaCE
  6. DCoFtCiSC
A
  • Unreliable Evidence
  • Warnings about lies
  • Identification Evidence
  • Directions about certain ways of giving evidence
  • Directions about children’s evidence
  • Delayed complaints or failure to complain in sexual cases
51
Q
  1. In directions about evidence given by children. Does a Judge have to give a warning? Explain why?

Judges warnings for children Section 125(1).

N - t JiP fga W - at AoC - waW wnhbg - it CoaAC.

MC Exam 2

A

No. Judge is prohibited from giving a warning - about the absence of corroboration - where a warming would not have been given - in the case of a adult complainant.

52
Q
  1. Cross examination of prior inconstant statements include what statements? Sec 96 (p 93)
  2. WWS - (FWS)
  3. OS - (Ri PN JS)
A
  • Written witness statements

* Oral statements – recorded in Police notebooks and jobsheets

53
Q
  1. Explain balance or probabilities

SoP RbD tPaPE oiC.
MC ar DoP bns HaiR iaCC.

A

Standard of proof required by defence to prove a particular element of its case.
Must Carry a reasonable degree of probability but not so high as required in a criminal case

54
Q
  1. Explain the difference between Beyond reasonable doubt and on the balance of probabilities?

BRD - SoP RftP tPiC. Jmb SoG Bt cftG.
BoP - SoP RftD iPiC. MC aR DoP bns HaiR iaCC.

A

Beyond reasonable doubt – Standard of proof required for the Prosecution to prove its case. Jury must be satisfied of guilt before they can find them guilty.
Balance of probabilities – Standard of proof required for the Defence to prove its case. Must carry a reasonable degree of probability - but not so high as is required in a criminal case.

55
Q
  1. Specific restrictions aside, if evidence is admitted for what purposes can it be used?

OE iAic Gbu faP o
I n Aaa.

A

Once evidence is admitted - it can generally be used for all purposes or
Is not admissible at all.

56
Q
  1. Define expert under s4 of the act

aE iaP wh SKoS boT, SoE

A

An expert is a person who has specialized knowledge or skill based on training, study or experience.

57
Q
  1. When would communication with a legal adviser be privileged?
  2. Cit bC
  3. CM ft PoOo GLS.
  4. R,C,M,P I/C ft PoP faP oaFP.
A
  • Communication intended to be confidential
  • Made for the purposes of obtaining or giving legal services
  • Receiving, compiling, making, preparing information/communication for the purpose of preparing for a proceedings or a future proceedings.
58
Q
  1. An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply – what are these?
  2. btS.
  3. Pat AD hbD.
A

1) Being tried separately

2) Proceedings against the associated defendant has been determined

59
Q
  1. What is the meaning of self-incrimination under s4 of the evidence act

Key Words: PPIR LIL PPCO

PbtP oItc RLt oItLo tPotP faCO.

In Exam 1 & 2

A

key words = Provision Person Information Reasonably, Lead Increase Likelihood, Prosecution Person Criminal Offence

Provision by the person - of information that could - reasonably lead to - or increase the likelihood of - the prosecution of that person - for a criminal offence.

60
Q

*60. Explain reasonable doubt?

R v WANHALLA

HaRU Liym atGotA ayhG CaIC taotE.

A

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.

61
Q
  1. What is the section 8 test? (p23) Prob8tive.
  2. tJmEE iiPV iObtR ttEw:
    a) haUP EotP.
    b) NPtP
A

(1) 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
(b) Needlessly prolong the proceeding

62
Q
  1. What are the two exceptions to the general prohibition of previous consistent statement - Sec 35(2) (p89)

iti aC tt WV oA
tim bS tiiN tAt WPS iOtR ttCtt WV oA (H v R)

In Exam 1

A
  • If there is a challenge to the witness’s veracity or accuracy
  • Then it must be shown that it is necessary to admit the witness’s previous statement in order to respond to the challenge to the witness’s veracity or accuracy (HART v R )
63
Q
  1. Name 4 types of evidence under section 122(2) EA2006 where the judge must consider giving a warning that the evidence may not be reliable

HSWC

  1. HE.
  2. SbD, itE itoE itD.
  3. WwmhaM tgFE tiPtD.
  4. CotD itCiA tho mt10YP.
A

1) Hearsay evidence
2) Statement by the defendant - if that is the only evidence - implicating the defendant.
3) Witness who may have a motive - to give false evidence - that is prejudicial to defendant.
4) Conduct of the defendant - if that conduct is alleged - to have occurred - more than 10 years previously

64
Q
  1. Define a statement?

S4

  1. SoWA - baP oaMoF.
  2. NVC - oaP tii btP aaA oaM.
A

Statement means s4

  1. Spoken or written assertion - by a person - of any matter of fact
  2. Non - verbal conduct - of a person - that is intended - by that person - as an assertion of any matter
65
Q
  1. Give examples of two alternative ways to give evidence?
  2. BVR mbt CPo
    2 baV L faL.
A
  1. By video recording made before the court proceedings or

2. by a video link from another location

66
Q
  1. When is a previous statement of a witness that is consistent with the witness’s evidence admissible? Also known as the previous consistent statement rule - Sec 35(3) (p88)

A. CR tt SPaR Att SiR a
B. tS Pt Cw itt Wi UtR.

In Exam 1

A

A) The circumstance relating to the statement provide a reasonable assurance that the statements is reliable and
B) That statement provides the court with information that the witness is unable to recall.

67
Q
  1. Explain the term “facts that prove the charge”

Fm Pt Eot CaE sbm uo Ft PtC.
tA Cat Eo is bB it Mw Dw Ei Ra wEw HPt Got PC.

A

Facts must prove the elements of the charge and evidence should be made up of facts that proves the charge.
The actual charge and the elements of it should be borne in the mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

68
Q
  1. What is a presumption of law?

IE Db Lf PF am bC.
eg. aCu 10 yo cbC.
PoL mC oR.

Exam 2

A

Inferences expressly drawn by law from particular facts and may be conclusive.
e.g. A child under 10 years old cannot be convicted.
Presumptions of law maybe conclusive or rebuttable.

69
Q
  1. What is a presumption of fact?

ttt MN a LD fGF.
eg. a ph GK it aiP oRSP.
TaAR.

Exam 2

A

those that the mind naturally and logically draws from given facts eg, a person has guilty knowledge if they are in possession of recently stolen property. They are always rebuttable.

Evidence Module (2 decks)

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