Evidence updated

Question 1

What is evidential burden?

Answer 1

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.

Question 2

When will evidence usually be excluded?

Answer 2

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’.

Question 3

What type of communication is protected between a doctor and their patient?

Answer 3

Drug dependancy and Criminal Conduct

Question 4

What is relevant evidence?

Answer 4

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.

Question 5

Definition of a ‘statement’?

Answer 5

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.

Question 6

What can a witness use to refresh their memory?

Answer 6

• 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.

Question 7

What makes an expert witness?

Answer 7

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

Question 8

Are presumption of facts - conclusive, rebuttable, or both?

Answer 8

Rebuttable.

Question 9

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

Answer 9

a. Age of a complainant under 16

Question 10

Under S8, the judge must exclude evidence if …

Answer 10

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.

Question 11

Under S77, a witness under 12 years old must.. (re affirmation)

Answer 11

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

Question 12

S121 what offence needs corroboration?

a. Blackmail
b. Sexual Violation
c. False Oath

Answer 12

c. False Oath

Question 13

When is a witness not compellable in Court?

Answer 13

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).

Question 14

What is the purpose of evidence in chief?

Answer 14

To elicit testimony that supports the case of the party calling that witness.

Question 15

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

Answer 15

c. Judicial Notice

Question 16

Expert evidence is admissible if:

Answer 16

1. It is that of an ‘expert’
2. It comprises ‘expert’ evidence, and
3. Offers substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.

Question 17

List four witness questions that are not allowed?

Answer 17

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.

Question 18

Explain what was held in R v Wannalla?

Answer 18

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.

Question 19

Why is Hearsay evidence excluded?

Answer 19

Because of the lack of reliability of hearsay evidence.

1. 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.
2. The concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
3. 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.

Question 20

When a witness can be declared hostile?

Answer 20

• 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

Question 21

What are the conditions and limitations in regards to re-examination?

Answer 21

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.

Question 22

Under S40(1)(b) Propensity. What is it and what does it exclude?

Answer 22

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.

Question 23

Explain what the two exceptions of burden of proof/presumption of innocence is?

Answer 23

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.

Question 24

Define Presumption of Law and give an example:

Answer 24

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

Question 25

Under S35(2), what are the exemptions re previous consistent statement?

Answer 25

• Responds to a challenge that will be or has been made to the witnesses veracity, or;
• Accuracy based on a previous inconsistent statement of the witness, or;
• On a claim of invention on part of the witness; or
• Forms an integral part of the events before the court; or
• Consists of the mere fact that a complaint has been made in a criminal case

Question 26

List the objectives of S6 EA2006.

Answer 26

(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(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 27

What are six exclusive rules of evidence?

Answer 27

Veracity
Propensity
Hearsay
Opinion
Identification
Improperly Obtained Evidence

Question 28

Define what a hearsay statement is:

Answer 28

A statement that-
- Was made by a person other than a witness; and
- Is offered in evidence at the proceeding to prove the truth of its contents.

Question 29

Describe two ways to give evidence:

Answer 29

• In person under Oath/Affirmation
• Behind a screen
• AVL
• Any other way outlined by the Evidence Act

Question 30

Explain what relevant evidence is:

Answer 30

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 31

What are the conditions of referring to your notebook at court?

Answer 31

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

Question 32

Explain what Presumption of Fact is and give an example:

Answer 32

Presumption of Fact are those facts that the mind naturally and logically drawn to from the given facts. They are always rebuttable.

Example: One presumes that a person has guilty knowledge if they have possession of recent stolen goods

Question 33

An 11 year old is giving evidence as a complainant and their parents want to know about what to expect re oath/affermation. What can you tell them in relation to the court procedure?

Answer 33

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.

Or its the sequence of the Trial.

Question 34

What are the conditions placed on a witness when refreshing their memory? (Evidence that is relied upon and circumstances made)

Answer 34

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 35

What is the sequence of a Jury Trial?

Answer 35

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.