Evidence updated Flashcards
What is evidential burden?
The ultimate question for the jury is, “Has the prosecution proved its case”?
Having an evidential burden means that a defence cannot be left to the Judge or Jury 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 with the prosecution.
When will evidence usually be excluded?
Under S8 of the Evidence Act, evidence will be excluded if the probative value of evidence is outweighed by the risk the the evidence will have an ‘unfairly prejudicial effect on the proceeding’, or needlessly ‘prolong the proceeding’.
What type of communication is protected between a doctor and their patient?
Drug dependancy and Criminal Conduct
What is relevant evidence?
Evidence is relevant under S7(3) in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
Definition of a ‘statement’?
This is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.
What can a witness use to refresh their memory?
- Reference to statements
- Briefs of evidence
- A deposition statement prepared on the basis of statements which they may have made some months before
- They may check their recollection of events with the officer who interviewed them
ETC.
What makes an expert witness?
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.
Are presumption of facts - conclusive, rebuttable, or both?
Rebuttable.
What is NOT an example of judicial notice?
a. Age of a complainant under 16
b. That Kapiti Island is a protected reserve
c. The sun rises in the East
a. Age of a complainant under 16
Under S8, the judge must exclude evidence if …
Its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.
Under S77, a witness under 12 years old must.. (re affirmation)
Be informed by the judge of the importance of telling the truth and not telling lies, and after being given that information, must make a promise to tell the truth, before giving evidence
S121 what offence needs corroboration?
a. Blackmail
b. Sexual Violation
c. False Oath
c. False Oath
When is a witness not compellable in Court?
Section 72-75 of the Evidence Act outlines people who are not compellable to give evidence,
- Judges, jurors, and Counsel (72).
- Defendants and Associated Defendants (73).
- Sovereign, Governor General, Sovereign to Head of State of a foreign country,
Judges (74). - Bank officer (75).
What is the purpose of evidence in chief?
To elicit testimony that supports the case of the party calling that witness.
Evidence in regards to the season in New Zealand a particular time is what kind of evidence:
a. Presumption of Fact
b. Presumption of Law
c. Judicial Notice
c. Judicial Notice
Expert evidence is admissible if:
- It is that of an ‘expert’
- It comprises ‘expert’ evidence, and
- Offers substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.
List four witness questions that are not allowed?
Questions that the judge considers improper, unfair, misleading, needlessly repetitive, or expressed in a language that is too complicated for the witness to understand (under S85).
The judge may take into account:
(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.
Explain what was held in R v Wannalla?
Reasonable doubt is an honest and reasonable uncertainty left on your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence. The starting points the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt.
Why is Hearsay evidence excluded?
Because of the lack of reliability of hearsay evidence.
- Where the maker of the 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 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 the witnesses will make mistakes about the meaning or content of statements made by other people. The game of ‘Chinese whispers’, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.
When a witness can be declared hostile?
- When they exhibit, or appear 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 wth 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
What are the conditions and limitations in regards to re-examination?
Re-examination is for the purpose of clarifying or qualifying any issue raised during the cross-examination, but the witness may not be questioned on any other matter, except with the permission of the judge.
Under S40(1)(b) Propensity. What is it and what does it exclude?
Propensity - Evidence of a person’s propensity to act in a particular way or to have a particular state of mind and includes evidence of acts, omissions, events, or circumstances of which a person is alleged to have been involved; but 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; or the cause of the action in the proceeding in question.
Explain what the two exceptions of burden of proof/presumption of innocence is?
Where the legal burden of proof is placed on the defendant. The most common being the defence of insanity
Some offence provisions shift the BoP of specific defences to the defendant. Eg, Sexual Conduct with a person under the age of 16 years.
Define Presumption of Law and give an example:
Presumptions of Law - Inferences the have been expressly drawn by law from particular facts. They are ether conclusive or rebuttable.
A conclusive example: that a child under the age of 10 years is unable to be convicted.
A rebuttable example: that all defendants are innocent until proven guilty