JoJo

Question 1

Define Evidence

Answer 1

Evidence is the term for the whole body of material which a court or tribunal may take into account in reaching their decision. Evidence may be oral, visual, or written.

Question 2

Define Direct Evidence

Answer 2

Direct evidence is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced.

Question 3

Define Facts in Issue

Answer 3

Facts in issue are those which:

o Prosecution must prove to establish the elements of the offence

o The defendant must prove to succeed with a defense, in respect of which he or she carries the burden of proof

Question 4

Define Veracity

Answer 4

Veracity is the disposition of a person to refrain from lying, generally or in the proceeding.

Question 5

Define Propensity

Answer 5

Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.

Question 6

Define Witness

Answer 6

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

Question 7

Define Relevance

Answer 7

Evidence is relevant if it has the tendency to prove or disprove anything that is of consequence in the determination of a proceeding.

Question 8

Define circumstantial evidence

Answer 8

Circumstantial evidence 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.

Question 9

Circumstantial Evidence has been defined as:

Answer 9

A fact that by inference can prove another fact in issue

Question 10

Define Statement

Answer 10

A statement is a spoken or written assertion by a person or non-verbal conduct by a person intended by that person as an assertion of any matter.

Question 11

Define Hearsay Statement

Answer 11

A hearsay statement is a 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.

Question 12

Define corroboration

Answer 12

Corroboration 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

Question 13

In a proceeding, evidence may be given in a number of ways, list and describe two of these / or list and describe two ways of giving evidence.

Answer 13

1. Ordinary way – either orally in a courtroom in the presence of a Judge and the parties, or in an affidavit filed in court or by reading a written statement in a courtroom if both prosecution and defense consent, the statement is admissible, and it is the personal statement of the deponent maker.
2. 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.
3. Any other way – Provided for by the Evidence Act 2006 or any other relevant enactment.

Question 14

The “weight” of evidence is its value in relation to the facts in issue. The value will depend on a wide range of factors, such as:

Answer 14

· 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.

Question 15

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

Answer 15

The fundamental principal in criminal law is the presumption of innocence, known as the Woolmington Principal. This principal establishes that, subject to specific statutory exceptions, the burden of proof clearly lies with the prosecution to prove all of the elements of the offence.

Question 16

The fundamental principle in Criminal Law is the presumption of innocence and that the burden of proof lies with the Prosecution, outline two exceptions to this rule

Answer 16

· In cases where there is a defense of Insanity

· Possession of an offensive weapon, where the defendant must prove an absence of the requisite intent.

· In underage sex cases where the victim is under 16, s134 Crimes Act 1961

Question 17

What is the standard of proof required for Prosecution and Defence?

Answer 17

· Beyond reasonable doubt is the standard of proof required for prosecution to prove its case. It means that the jurors need to be satisfied of guilt before a conviction can be reached.

· Balance on probabilities is the standard of proof required for defense 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 tribunal can say that they think it more probable than not, the burden is discharge, if the probabilities are equal, the burden is not discharged.

Question 18

Where the onus falls on the Defense to prove a particular element, what is the standard of proof required?

Answer 18

On the balance of probabilities, which means that they must prove that the thing is more probable than not.

Question 19

What is beyond reasonable doubt? R v Wanhalla

Answer 19

in R v WANHALLA, it was concluded that reasonable doubt is “an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration of all the evidence.”

Question 20

Specific restrictions aside - if evidence is admitted, for what purposes can it be used?

Answer 20

Generally speaking, evidence is either admissible for all purposes or is not admissible at all.

Question 21

What are the 6 objectives of the Evidence Act 2006?

Answer 21

The purpose of this act is to help secure the just determination of proceedings by:

o Enhancing access to the law of evidence

o Avoiding unjustifiable expense and delay

o Protecting rights of confidentiality and other important public interests

o Promoting fairness to witnesses and parties

o Providing for facts to be established by application of logical rules.

o Providing rules of evidence that recognize the importance of the rights affirmed by the NZBORA 1990

Question 22

A Police Constable who prepares a court case must consider what makes good evidence, including the facts to prove the charge. Explain the term ‘facts to prove the charge”

Answer 22

· The facts must prove the elements of the charge and the evidence should be made up of facts that prove the charge

· 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 23

What are Presumptions of Law and give an example

Answer 23

· Presumptions of law are inferences that have been expressly drawn by law from particular facts, may be either conclusive or rebuttable.

· E.g., A child under 10 is unable to be convicted

Question 24

What is Presumption of Fact and give an example

Answer 24

Presumptions of fact are those that the mind naturally and logically draws from the given facts. They are simply logical inferences, and so are always rebuttable.

Question 25

What is the general rule in relation to establishing facts

a. All facts in issue must be proved by evidence

b. All facts relevant to the issue must be proved

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

d. All facts in issue and facts that are formally admitted must be proved by the court

Answer 25

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

Question 26

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence the two main exceptions are:

Answer 26

The two main exceptions of the general rule are when no evidence needs to be given of facts because:

o Judicial notice is given

o Facts are formally admitted

Question 27

Explain the concept of Judicial Notice – S128 and S 129

Answer 27

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

E.g., if the date of Christmas were a fact in issue.

Question 28

It is not necessary in court to prove uncontroverted facts. These are admitted as:
a. Judicial Notice

b. Presumptions of Fact

c. Admissions for the purpose of trial

d. Presumptions of Law

Answer 28

a. Judicial Notice

Question 29

It is not necessary to prove fact such as the date of Christmas. These facts are admitted as:

a. Presumptions of Fact

b. Admissions for the Purpose of Trial

c. Presumptions of Law

d. Judicial Notice

Answer 29

d. Judicial Notice

Question 30

What are the four Principles used to determine Admissibility?

Answer 30

1. Reliability
2. Relevance
3. Unfairness
4. Public interest (Maybe???)

Question 31

The fundamental condition for the admissibility of evidence is that is must be relevant. According to section 7 of the Evidence Act 2008, when might relevant evidence NOT be admissible in proceedings?

Answer 31

· Inadmissible under this act or any other act

· Excluded under this act or any other act

Question 32

What does the term “Relevant Evidence” NOT include?

Answer 32

Relevant evidence excludes any extraneous matters that do not relate to the precise issue or issues to be determined by the court. Evidence can be admitted on any basis for which is relevant.

Question 33

Even though evidence is relevant, it may be excluded if it would result in unfairness. Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:

Answer 33

· Evidence may be excluded if it would result in some unfair prejudice in the proceeding

· Evidence may be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair.

Question 34

Section 8 of the Evidence Act provides that the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will one of two things, name both

Answer 34

The s8 test involves balancing the probative value of evidence against the risk that if it will:

o Have an unfairly prejudicial effect on the proceeding or

o Needlessly prolong the proceeding

Question 35

Explain Section 15 of the Evidence Act 2006

Answer 35

· Section 15 of the 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.

· These kinds of hearings are referred to as “hearings in chambers”. facts determined at a hearing in chambers are sometimes referred to as preliminary facts.

Question 36

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

Answer 36

Once evidence is admitted, it can generally be used for all purposes.

Question 37

Most of the laws of evidence concern things that cannot be given in evidence. List the matters that the exclusive rules of evidence deal with:

Answer 37

· Hearsay

· Opinion

· Propensity

· Veracity

· Identification

· Improperly obtained evidence.

Question 38

Section 37(3) Evidence Act 2006 – When considering evidence offered about the veracity of a person is substantially helpful, what may the judge consider:

Answer 38

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

· That the person has a conviction of 1 or more offences that indicate a propensity for dishonesty or lack of veracity.

· Any previous inconsistent statements made by the person

· Bias on the part of the person

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

Question 39

Section 38(2) – The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:

Answer 39

· The defendant has offered evidence regarding their veracity or has challenged the veracity of a prosecution witness, and

· The judge permits the prosecution to do so.

Question 40

What does Propensity Evidence Mean, what does it exclude and what does it include?

Answer 40

Propensity Evidence means:

o Means evidence that tends to show a person’s propensity to act in a particular way or in a particular statement of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but

· Propensity Evidence includes:

o Propensity as to actions

o Propensity as to state of mind

· Propensity Evidence excludes:

o 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.

o Evidence that is solely or mainly about veracity.

Question 41

What is the propensity rule?

Answer 41

· Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but

· Does not include evidence of an act or omission that is

o one of the elements of the offence for which the person is being tried, or

o The cause of action in the proceeding in question

Question 42

Probative Value - What is the test for admissibility?

Answer 42

The test for admissibility is whether the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 43

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

a. The prejudicial effect of the evidence outweighs its probative value

b. It shows that the accused is of a criminal disposition and so more likely to have committed the crime

c. It will dispose the jury against the accused

d. The probative value of the evidence outweighs its judicial effect

Answer 43

d. The probative value of the evidence outweighs its judicial effect

Question 44

The rationale of the rule against hearsay evidence lies in the lack of reliability of hearsay evidence. List three reasons for the rule against hearsay

Answer 44

· Where the maker of the statement is not called as a witness, there is no opportunity to cross-examine that person regarding the content, the circumstances in which it was made, and so on

· Juries cannot evaluate evidence properly without being able to see the demeanor of the maker of 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.

Question 45

Circumstances, in relation to a statement by a person who is not a witness, includes:

Answer 45

Circumstances, in relation to a statement by a person who is not a witness, include:

o The nature of the statement

o The content of the statement

o The circumstances that relate to the: making of the statement, veracity of the person, accuracy of the observation of the person.

Question 46

List 4 reason why a witness may be unavailable as a witness S16(2) Or… Define what is meant by unavailable witness S. 16(2)

Answer 46

For the purposes of this subpart, a person is unavailable in a proceeding that the person:

o Is dead

o Is outside NZ and is not practicable for him or her to be a witness

o Is unfit to be witness because of age or physical or mental condition

o Cannot with reasonable diligence be identified or found

o Is not compellable to give evidence

Question 47

A person is unavailable as a witness when:

a. The person is overseas and can’t be contacted

b. The person was not at work when the Police went to pick the person up

c. The phone number used to contact the person is no longer in service

d. The person refuses to go to court

Answer 47

a. The person is overseas and can’t be contacted

Question 48

Under s16(1), a business record means a document that is made:

Answer 48

A business record means a document that is made

o to comply with a duty or in the course of a business, and as a record or part of a record of that business.

o From information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have, personal knowledge of the matters dealt with in the information he or she supplied

Question 49

The exclusionary rule is essentially to prevent the admission of unreliable, superfluous, or misleading evidence (opinions). The justifications for that rule include

Answer 49

· Where a witness offers a bare opinion, it holds little probative weight

· There is a danger that opinion evidence will usurp the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence

· The opinion evidence could 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.

Question 50

What is the ruling around the General admissibility of opinions - Non expert opinion evidence

Answer 50

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the factfinder to understand, what the witness saw, heard, or otherwise perceived.

Question 51

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

Answer 51

· Opinion must be the only way in which to effectively communicate the information to the finder of fact

· The witness must be stating an opinion from something personally perceived.

Question 52

If the evidence is expert witness evidence, then in order to comply with s25 the opinion must:

Answer 52

· Be that of an expert, and

· Comprise expert evidence, and

· Offer substantial help to the fact finder in understanding other opinion evidence or ascertaining any fact in the proceedings

Question 53

Define Expert Witness

Answer 53

· 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 experts should be within his or her area of expertise

Question 54

4 Things to verify when a witness is summons to court; Or….Before a person is summoned to appear in court verification must be made as to… list four things.

Answer 54

· Whether they are allowed to give evidence.

· Whether they are required to give evidence.

· Whether they can refuse to give evidence

· What type of witness they will be?

Question 55

When is a witness eligible and compellable to give evidence:

Answer 55

· A witness is eligible if they are lawfully able to give evidence on behalf of prosecution and defense.

· A witness is compellable if they can be required to give evidence against their will for both prosecution and defense.

· If a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.

Question 56

71 Eligibility and compellability generally. What does S71(1) say about eligibility and compellability?

Answer 56

In a criminal or civil proceeding

o any person is eligible to give evidence

o A person who is eligible to give evidence is compellable to give that evidence.

Question 57

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

a. Any person who is eligible to give evidence is compellable

b. A married person whilst eligible is not compellable to give evidence against their spouse

c. Any person who is eligible may not be compellable

d. A 12-year-old child is eligible but not compellable to give evidence in a proceeding

Answer 57

a. Any person who is eligible to give evidence is compellable

Question 58

S73 - Compellability of defendants and associated defendants in criminal proceedings –

Answer 58

· A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defense in that proceeding.

· An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless:

o The associated defendant is being tried separately from the defendant

o The proceeding against the associated defendant has been determined.

Question 59

What is an Associated Defendant? s73(4)

Answer 59

An associated defendant is someone against whom a prosecution has been initiated for an offence

o Arising out of the same events as the offence for which the defendant is being tried, or

o That relates to, or is connected with, the offence for which the defendant being tried

Question 60

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply, state these two situations. (S. 73 EA06)

Answer 60

· The associated defendant is being tried separately from the defendant.

· The proceeding against the defendant has been determined.

Question 61

A witness can be required to give evidence if:

a. They can be required to give evidence against their will for the prosecution

b. They are not married to the defendant

c. They are lawfully able to give evidence on behalf of both prosecution and defense

d. They can be required to give evidence against their will for the defense

Answer 61

c. They are lawfully able to give evidence on behalf of both prosecution and defense

Question 62

What are examples of privileges where a person cannot be compelled to give certain evidence to a court proceeding?

Answer 62

A privilege is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible

o Communication with legal advisors

o Communication with minister of religion

o Solicitor’s trust account

o Settlement negotiations or mediations

o Preparatory materials for proceedings.

o Privilege against self-incrimination

o Information obtained by medical practitioners and clinical psychologist.

o Informer privilege

Question 63

Limited privilege protecting information obtained by medical practitioners and clinical psychologists is allowed for under s59 of the Evidence Act 2006. To whom does this apply and to whom does this not apply under S59(1)?

Answer 63

· Applies to a person who consults or is examined by the medical practitioner or clinical psychologist for drug dependency, or other condition or behavior that may manifest itself in criminal conduct

· Does not apply to a person who has been required by an order of a Judge, or by other lawful authority, to submit themselves to the medical practitioner or clinical psychologist for any examination, test, or any other purpose.

Question 64

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 from drug dependency
2. Who has another condition or behavior that may manifests itself in criminal conduct
3. Who has provided information concerning their family
4. Who s suffering from a mental illness

Answer 64

1. Who is suffering from drug dependency
2. Who has another condition or behavior that may manifests itself in criminal conduct

Question 65

What is required for communication with a legal adviser be privileged?

Answer 65

· The communication must be intended to be confidential.

· The communication must be made for the purposes of obtaining or giving legal advice. Includes communication for the same purpose made through authorized representatives

· The privilege is vested with the person seeking legal services; however, it can be waivered.

Question 66

What are the privileges in regard to preparing for a proceeding

Answer 66

· The privilege applies to communication or information made, received, complied or prepared for the primary purpose of preparing for a proceeding or a future proceeding

· The privilege applies to a person if they are, or on reasonable ground contemplating becoming, a party to the proceedings or apprehended proceedings

Question 67

What is the meaning of self-incrimination under S.4 EA06

Answer 67

The provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.

Question 68

When is privilege granted in relation to Privilege against self-incrimination

Answer 68

· The privilege applies if a person is required to provide specific information:

o In the course of the proceeding, or

o By a person exercising a statutory power or duty, or

o By a police officer or other person holding a public office in the course of an investigation into a criminal offence, and

· The information would be likely to incriminate the person under NZ law if so provided

Question 69

Under S121 it is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to the offences of:

Answer 69

· Perjury

· False oath

· False statement or declaration

· Treason

Question 70

What is the judge’s role in a trial by Jury?

Answer 70

· To decide all questions concerning the admissibility of evidence.

· To explain and enforce the general principles of law applying 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 71

Witnesses who are 12 years of age and under must take an oath or affirmation before giving evidence. Witnesses under the age of 12 must:

Answer 71

· Be informed by the judge of the importance of telling the truth and not telling lies, and

· After being given that information makes a promise to tell the truth before giving evidence

Question 72

Restrictions on comment on defendant’s right of silence at trial

Answer 72

In a criminal proceeding, no person other than the defendant, counsel or the Judge may comment on the fact that the defendant did not give evidence at their trial.

Question 73

What is the purpose of the examination in chief:

Answer 73

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

Question 74

Define leading question and what the general rule in relation to leading questions

Answer 74

· A leading question is one that directly or indirectly suggests a particular answer to the question.

· The general rule is that leading questions may not be asked during evidence in chief or re-examination

Question 75

The general rule about leading questions is that leading questions are not to be put to a witness during evidence in chief or re-examination. What are the 3 reasons why leading questions are not generally permitted.

Answer 75

· There is a natural tendency for people to agree with suggestions put to them by saying “yes”.

· Counsel asking leading questions of their own witnesses can more easily get the answer they wish to receive.

· There is a danger that leading questions will result in the manipulation or construction of evidence between the counsel and the witness.

Question 76

When are leading questions permitted?

Answer 76

· When the question relates to introductory or undisputed matters, or

· When the questions are put with the consent of all other parties, or

· When the judge, in the exercise of the judge’s discretion, allows the question

Question 77

Can a witness refresh their memory before court, explain

Answer 77

· Witnesses may, before they give evidence in court, refresh their memory by reference to statements or briefs of evidence or check their recollection with the officer that interviewed them, and so forth.

· The requirement is that the document relates to matters which are within their own knowledge.

Question 78

If a witness wishes to consult a document while giving evidence, the following conditions must be satisfied: Or… Can a witness refresh their memory in court. Or… What three conditions must be satisfied for a witness wishes to consult a document in court?

Answer 78

· The leave of the judge must be obtained.

· The document must be shown to all parties in the proceeding

· The document needs to have been made or adopted by a witness at a time their memory was fresh.

Question 79

What is the Previous consistent Statement Rule

Answer 79

A previous statement of a witness that is consistent with the witness’s evidence is only admissible if the statement:

o Responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness, or

o Forms an integral part of the events before the court, or

o Consists of the mere fact that a complaint has been made in a criminal case

Question 80

If a witness is declared hostile the witness may be asked questions in the manner of cross-examination to the extent that the judge considers necessary. List four things this may include:

Answer 80

· Asking leading questions

· Asking questions designed to probe the accuracy of memory and perception

· Asking questions as to prior inconsistent statements

· Other challenges to veracity, including evidence from other witnesses

Question 81

Define Hostile witness

Answer 81

· Exhibits a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge of.

· Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits an intention to be unhelpful to the party who called the witness

· Refuses to answer questions or deliberately withholds evidence.

Question 82

A witness is deemed to be hostile when:

a. They give different evidence from what is expected

b. Refuses to answer questions or deliberately withholds evidence

c. That are unfavorable to the party calling them

d. The prosecution provides grounds for disbelieving the witness’s current testimony

Answer 82

b. Refuses to answer questions or deliberately withholds evidence

Question 83

Distinction between hostile and unfavorable witnesses … Or… if a witness has memory loss, can they be called hostile?

Answer 83

Witnesses who simply fail to come up to brief may be unfavorable to the party who called the witness, but they are not necessarily hostile. Witnesses who suffer memory loss or provides evidence inconsistent with another statement does not necessarily justify find the witness as hostile.

Question 84

What is the purpose of cross-examination?

Answer 84

· 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.

Question 85

When may a judge deem a question an Unacceptable Question?

Answer 85

In any proceeding, the judge may disallow or direct that a witness is not obliged to answer any questions that the judge considers improper, unfair, misleading, needlessly repetitive or expressed in a language that is too complicated for the witness to understand.

Question 86

Can a witness be cross examined on a prior inconsistent statement and what is the process?

Answer 86

· Witnesses may be cross-examined as to prior inconsistent statements, such as written witness statements and oral statements.

· A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstance concerning the making of the statement are adequately identified to the witness.

· If a witness does not expressly admit making the statement and the party wishes to prove that they did, the party must show or disclose the statement to the witness and the witness must be given an opportunity to deny making the statement or explain the inconsistency.

Question 87

Re-examination of a witness, what are the limits and conditions

Answer 87

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross examination, but may not be questioned on any other matter, except with the permission of the judge.

Question 88

What is evidence in rebuttal?

Answer 88

Evidence called by either party after the completion of their own case in order to rebut something arising during the trial can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence:

o Relates to a purely formal matter

o Relates to a matter arising out of the conduct of the defense, the relevance of which could not reasonably have been foreseen

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

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

Question 89

There are a number of circumstances in which a judge may direct the jury (Judicial Warnings) that evidence should be scrutinized with particular care, or should be given less weight:

Answer 89

· Judicial warning that evidence may be unreliable

· Judicial warning about lies

· Judicial warning about identification evidence

· Judicial directions about children’s evidence

· Judicial directions about certain ways of giving evidence

· Delayed complaints or failure to complain in sexual cases.

Question 90

Under 122(2), the judge must consider whether to give a warning whenever certain types of evidence (unreliable evidence) is given. List those types of evidence:

Answer 90

· Hearsay evidence

· Evidence of a statement by the defendant if that’s the only evidence implicating the defendant

· Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant

· Evidence of a statement by the defendant to another person made while both in prison, police station, or other place of detention.

· Evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously

Question 91

Section 125 (1) – Does a judge have to give a warning where a child is a witness, if not why not?

Answer 91

No, a judge is not required to give a corroboration warning in a case involving a child complainant where the warning would not have been given had the complainant been an adult.

Question 92

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, it prohibits:

Answer 92

· The Judge from giving warnings about the absence of corroboration where a warning would not be given in the case of an adult complainant

· Any direction or a comment that there is a need to scrutinize children’s evidence with special care, or that children generally have a tendency to invent or distort

Question 93

If you need to refer to your notebook you must:

Answer 93

· Ask the court’s permission

· Introduce the material properly

· Jury and defense are entitled to view officer notebook so seal off other entries

· Remember that you are only allowed to refresh your memory, you cannot read the whole entry.

Question 93

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

a. Your worship

b. Using the judge’s title and surname

c. Your honor or Sir/Ma’am

d. Your Worship or Sir/Ma’am

Answer 93

c. Your honor or Sir/Ma’am