Important stuff Flashcards
What is evidence
Evidence is the term for the whole body of material which a court or tribunal - in criminal cases the judge or jury may take into account in reaching their decision
Admissible evidence
Evidence is admissible if it is legally able to be received by a court
Relevance
If it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding
What is opinion
A statement of opinion that tends to prove or disprove a fact
Facts in issue
- 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 proof
Weight of evidence
[RC / SC / V]
Is related to the value in relation to the facts in issue. The value will depend on:
- extent of how relevant or conclusive it is to the facts
- the extent to which it is supported or contradicted by other evidence produced
- the veracity of the witness
Evidence may be given in three ways
1) Ordinary way - orally and in the courtroom in the presence of judge, jury, prosecution, defendant, counsel and members of the public, or by affidavit or by reading a statement
2) Alternative way - in the courtroom but unable to see the defendant or other person, outside the courtroom or video recorded before the hearing
3) Any other way allowed as per Evidence Act 2006
Witness
A person who gives evidence at court and can be cross examined
Veracity
Disposition of a person to refrain from lying, in general or in a proceeding
Propensity
A persons propensity to act a certain way or have a certain statement of mind, includes evidence of acts, omissions, events or circumstances with which the person is alleged to be involved
Direct evidence
Any evidence given by a witness on the fact in issue that he or she has seen, heard or otherwise experienced
Circumstantial evidence
This is evidence of circumstances that do not directly prove the fact in issue, but allow inferences about the existence of those facts to be drawn
Woolmington principle
Is the presumption of innocence. This principle establishes that, subject to exceptions - the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence
What are the exceptions for Woolmington principle
- insanity
- public welfare regulatory offences
- certain offences eg. possession of offensive weapon
Discharging burden of proof
Where the burden is with the prosecution it must be discharged beyond reasonable doubt
Any element that defence needs to prove is on the balance of probabilties
Beyond reasonable doubt
[R v Wanhalla]
An honest and reasonable uncertainty left in your mind about the guilt of the defendant after careful and impartial consideration to all evidence
What standard of proof must the crown prove?
The accused is guilty beyond reasonable doubt
What standard does defence need to prove for eg. insanity
Balance of probabilities - that it is more probable than not
What is the purpose of the evidence act
[PPPPAE]
The purpose of the act is to help secure the just determination of proceedings by:
- providing facts to be established by the application of logical rules
- providing rules of evidence that recognise the importance the BOR Act
- promoting fairness to parties and witnesses
- protecting rights of confidentiality and other important public interests
- avoiding unjustifiable expense and delay
- enhancing access to the law of evidence
What is facts that prove the charge
The facts must prove the elements of the charge and the evidence should be made up of facts that prove the charge
Facts in issue
Facts in which need to be proved to success in a case. In criminal cases the facts in issue are the ones in the charge document and denied by a not guilty plea
Presumption of law
Are inferences that have been expressly drawn by law from particular facts.
Presumptions of law may be either conclusive or rebuttable
Presumptions of fact
Are those that the mind naturally and logically draws from the given facts. For example a person has guilty knowledge if they have possession of recently stolen goods
Presumptions of fact are logical inferences and so are always rebuttable
Fundamental principle that relevant evidence admissible
All relevant evidence is admissible in a proceeding except evidence that is:
- inadmissible under this act or any other act
- excluded under this act or any other act
Section 8 - General exclusion for relevant evidence however its unfair: the probative value outweighed by the risk that the evidence will:
a) have an unfair prejudicial effect on the proceeding
b) needlessly prolong the proceeding
Evidence is to be excluded if it would result in unfairness. What two ways does this usually arise
- result i unfair prejudice in the proceeding
- evidence obtained in circumstances that would make its admissions against the defendant unfair
Hearing in chambers
Where evidence is heard by a witness to prove some other evidence should be admitted.
The jury is excluded from the courtroom during this.
What are the facts determined called during a hearing in chambers
preliminary facts/hearing
What are the six exclusive rules of evidence
HIV POI
- veracity
- propensity
- hearsay
- opinion
- identification
- improperly obtained evidence
S37 - Veracity rules
In deciding evidence to a witness’s veracity, the judge may consider:
[vertical - CLIMB]
A person may not offer evidence on a person’s veracity unless the evidence is substantially helpful. The Judge can consider the following
- CONVICTED of 1 or more offences that indicates dishonesty or veracity
- LACK of veracity when under legal obligation to tell the truth eg. earlier proceeding or signed declaration
- previous INCONSISTANT statement
- MOTIVE to be untruthful
- BIAS on the person
The prosecution may offer evidence on the defendants veracity if:
- the defendant has offered evidence on their own veracity
- defendant has challenged the veracity of the prosecution witness by reference rather than facts in issue
- the judge allows it
What does propensity evidence not include
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
- solely or mainly about veracity
Define hearsay statement
A statement that was made by another person other than a witness and is offered as evidence in a proceeding to prove the truth of it’s content
When is hearsay statement admissible?
Circumstances providing reasonable assurance that it is reliable and either the maker of the statement is unable to be a witness or there would be undue delay or expense if the make of the statement were required to be a witness
What are the three rationales behind the rule against hearsay statements
[cross exam/demeanor/Chinese whisper’
1) If maker if statement is not called then they can’t be cross examined
2) Juries cant evaluate evidence properly if they don’t see the demeanor of the person who made the statement
3) Danger that witnesses will make mistakes about the meaning or content of statements from other people - ‘Chinese whispers’
16(1) - Circumstances in relation to a statement who is not a witness:
[hearsay]
[CMON V]
- contents of statement
- circs into the making of the statement
- circs into the accuracy of the observations of the person
- nature of the statement
- circs into the veracity of the person
What defines being unavailable as a witness
[hearsay]
[DO UFC]
- DEAD
- OUTSIDE NZ and not practicable to travel to NZ
- UNFIT due to mental/physical/age
- CAN’T be located or identified
- not COMPELLABLE
What are the rationales to exclude opinions that are not admissible
- where a witness offers a bare opinion it offers little probative weight
- danger that a witness offering opinion will usurp the function of the tribunal of fact. This could confused the tribunal of fact and prolong proceedings
- witness evidence of opinion may be based on other evidence which could be inadmissible
What two criterias could opinion evidence be admissible
1) only way to effectively communicate the information to the fact finder
2) the witness must be stating an opinion they personally perceived
What is an expert witness
A person that was specialized skills or knowledge based on training, study or experience .
The judge must decide if this person is qualified as an expert to testify and any non expert opinions or matters that require expertise will be inadmissible
Before a person is summonsed to appear in court, verification must be made to:
[ARRT]
- whether they are allowed to give evidence
- whether they are required to give evidence
- whether they can refuse evidence
- what type of witness the will be
What is an associated defendant
An associated defendant is someone who is prosecuted for an offence arising out from the same event the defence is being tried or ‘relates to or connected with’ the offence in which the defendant is being tried
Who is not compellable to give evidence
- Judge
- Sovereign
- Foreign head of state
- Governor general
Six types of privilege
[CSPSCI]
- comms with legal advisors
- Solicitors trust accounts
- Preparatory materials for proceedings
- Settlement negotiations and mediation
- Comms with ministers of religion
- Information obtained from medical practitioners or clinical psychologists
- privilege against self incrimination
- informer privilege
What is privilege against self incrimination 62(2)
The provision of a person of information that could reasonably lead to or increase the likelihood of a prosecution of that person for a criminal offence
Define informer
Supplied gratuitously or for reward, to an enforcement agent or representative of an enforcement agent, information in relation to the commission or possible commission of an offence in which the person has a reasonable expectation that his or her identity will not be disclosed
Overriding discretion as to confidential information
[s69]
Judge is able to protect the confidentiality of a person even if the person does not want to conserve their confidentiality
What offences need corroboration
- perjury
- false oath/statement
- treason
Define corroboration
Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged
Child complainants and corroboration
Section 125(1) prohibits a corroboration warning in cases involving a child complainant where the warning would not of been given if the complainant was an adult
Is there spouse of the defendant compellable
Yes
Judges role in trial by jury
- decide all questions concerning admissibility of evidence
- explain and enforce the general principles of law applying to the point of issue
- instruct the jury on the rules of law which evidence is to be weighed once submitted
What age do witnesses have to take an oath or affirmation
12 and older
What do witnesses under 12 be told before giving evidence
- be informed by the judge the importance of telling the truth and not telling lies
- after being told that information, make a promise to tell the truth before giving evidence
What are the restrictions on comment on defendants right to silence at a trial
No one except the judge, defendant or defence counsel may comment on the fact that the defendant did not give evidence at their trial
Section 89(1) - What is a leading question and provide two exceptions found in S89 to the general rule with regard to leading questions
A question that directly or indirectly suggests a particular answer to the question
- Introductory or undisputed matters
- The question is put with the consent of all parties
- The judge exercises discretion to allow the question
What are the three reasons why leading questions are prohibited
1) Natural tendency for people to say yes even it is not precisely their own view in terms of what happened
2) Counsel asking leading questions on their own witnesses may easier elicit answers which they wish to receive therefore reducing spontaneity and genuineness
3) 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
What must be a person do to refresh their memory in court
- seek leave from the judge
- document must be shown to every party in the proceeding
- the document must be made or adopted by the witness at the time where their memory was fresh
When are previous consistent statements admissible
- responds to a challenge of the witnesses’s veracity or accuracy, based on previous inconsistent statement or on a claim on invention
- forms an integral part of the events before court
- consists of mere fact that a complaint has been made in a criminal case
What can the witness be asked if they are deemed hostile
- leading questions
- questions designed to probe their accuracy of memory and perception
- asking questions as to prior inconsistent statements
- other challenges of veracity, including evidence from other witnesses (providing it is substantially helpful)
Hostile witness defined
- exhibits or appears to exhibit a lack of veracity in giving evidence for the party who called the witness on a matter which the witness had knowledge on
- gives evidence that is inconsistent with a statement made by that witness, in a manner that displays the witness to be unhelpful to that party
- refuses to answer questions or deliberately witholds evidence
What are the two purposes for cross examination
1) to elicit information supporting the case of the party conducting the cross examination
2) to challenge the accuracy of the testimony given in evidence in chief
S85(1) - What sort of questioning may a judge consider unacceptable questions
[IMUNE]
- improper
- misleading
- unfair
- needlessly repetitive
- expressed in language that is too complicated
S85(2) - Factors a judge could take into account to determine if the question is unacceptable
[CHAIN]
- the age or maturity of the witness
- physical, intellectual, psychological or psychiatric impairment
- linguistic, cultural or religious beliefs
- nature of the proceeding
- if its a hypothetical question, will the hypothesis be proved by other evidence
What are the conditions and limits on re examination
After being crossed by counsel, the party calling the witness may re examine for clarification however may not question on any other matter except with permission from the judge
Evidence in rebuttal - such leave may be given to the prosecution if further evidence:
FM
COD
N/A
RTA
1) Relates to purely formal matter
2) Relates to matter arising from the conduct of defence, the relevance could not have been reasonably foreseen
3) Was not admissible before the prosecutions case was closed
4) Required to be admitted in the interests of justice for any other reason
Judge must give warning whenever possible unreliable evidence is given. What are these unreliable categories?
HOM(E)D 10
- hearsay
- statement from defendant if that’s the only evidence implicating them
- evidence given by witness who may have a motive to give false evidence that is prejudicial to a defendant
- statement by the defendant made to another person whilst they were in prison, police station or another place of detention
- evidence about the conduct of the defendant over 10 years ago
Section 125 - evidence given by children should be treated in the same way as if it’s given by adults
- prohibits judges giving warning about the absence of corroboration where a warning would not have been given to an adult
- prohibits direction or comment that there is a need to scrutinise children’s evidence with special care or that children generally have a tendency to invent or distort
What to address the judge
Your honour or sim/ma’am
What to do when referring to your notebook
- ask for courts permission
- introduce the material properly
- seal off all unrelated entries as defence and and jury are able to read it
- only allowed to refresh memory not read from it unless you have permission to
