Knowledge Deficiency Flashcards
8.3 Identification evidence (Visual and Voice)
OUR MEMORIES ARE PRONE TO INCOMPLETENESS, DISTORTION AND FORGETFULNESS.
Evidence of identity usually takes the form of a WITNESS STATING THAT A PERSON IS THE SAME AS SOMEONE HE OR SHE SAW ON THE PREVIOUS OCCASION. In New Zealand, both VISUAL and VOICE identification evidence HAS BEEN ADMITTED in criminal cases. The admission of such evidence is, however, subject to certain restrictions. These restrictions are a reflection of the INHERENT RELIABILITY of both EYEWITNESS and EARWITNESS identification: OUR MEMORIES ARE PRONE TO INCOMPLETENESS, DISTORTION AND FORGETFULNESS.
S.42, C.A 1961 - Preventing breach of the peace
(1) Every one who WITNESSES a breach of the peace IS JUSTIFIED IN INTERFERING TO PREVENT ITS CONTINUANCE or renewal, and MAY DETAIN ANY PERSON COMMITTING IT, in order TO GIVE HIM INTO THE CUSTODY OF POLICE: Provided that the person interfering SHALL USE NO MORE FORCE THAN IS REASONABLY NECESSARY for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal.
(2) Every CONSTABLE WHO WITNESSES a breach of the peace, and every person LAWFULLY ASSISTING IS JUSTIFIED IN ARRESTING ANYONE lawfully assisting him, is justified in arresting any one whom he finds committing it.
(3) Every constable is justified in receiving into custody any person given into his charge, as having been a party to a breach of the peace, by one who has witnessed it or whom the constable believes on reasonable and probable grounds to have witnessed it.
Defendants statements -Evidence Act 2006 (S=FWS/FOS/NV) excluded under 28-R,29-O,30-I
Evidence offered by the prosecution of a statement MADE BY A DEFENDANT IS NOT ADMISSIBLE AGAINST A CO-DEFENDANT.
A “statement” is a SPOKEN or WRITTEN ASSERTION of any matter, or NON-VERBAL CONDUCT THAT IS INTENDED AS AN ASSERTION of any matter (s 4 of the Evidence Act 2006).
Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under s 28, s 29 or s 30. These sections are:
-the RELIABILITY rule (s 28)
-the OPPRESSION rule (s 29), and
-the IMPROPERLY obtained evidence rule (s 30)
S.121, Evidence Act 2006 - Corroboration
EXCEPTIONS - PERJURY, FALSE OATHS, FALSE FWS/DECLARATIONS, TREASON
(1) 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—
(a) PERJURY (section 108 of the Crimes Act 1961); and
(b) FALSE OATHS (section 110 of the Crimes Act 1961); and
(c) FALSE STATEMENTS or DECLARATIONS (section 111 of the Crimes Act 1961);
and
(d) TREASON (section 73 of the Crimes Act 1961).
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.
S.7, Evidence Act 2006 - Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is NOT RELEVANT IS NOT ADMISSIBLE in a proceeding.
(3) Evidence IS RELEVANT in a proceeding IF IT HAS THE TENDENCY TO PROVE OR DISPROVE anything that is of consequence to the determination of the proceeding.
Veracity (TRUTHFULNESS) and propensity (BEHAVE IN A PARTICULAR WAY) - Evidence Act 2006
*DOES NOT APPLY TO BAIL OR SENTENCING
(1) DOES NOT APPLY to evidence ABOUT A PERSON VERACITY if that veracity is an INGREDIENT OF THE CLAIM in a civil proceeding OR one of the ELEMENT OF THE OFFENCE for which a person is being tried in a criminal proceeding.
(2) DOES NOT APPLY so far as a proceeding relates to BAIL OR SENTENCING.
Eligibility and compellability (MUST GIVE EVIDENCE) - Evidence Act 2006
(1) In a CIVIL or CRIMINAL proceeding,—
(a) ANY PERSON IS ELIGIBLE to give evidence; and
(b) a person WHO IS ELIGIBLE to give evidence IS COMPELLABLE to give that evidence.
(2) Subsection (1) is subject to sections 72 to 75.
Definitions - Evidence Act 2006 - PREJUDICIAL:
UNFAIR PREJUDICE - JURY GIVING MORE WEIGHT TO EVIDENCE THAN IT DESERVES
Evidence adverse to a party’s case; the drawing of an inference against a party. However, the exclusion in s 8 Evidence Act 2006 relates to unfair prejudice. This could include, for example, the danger that the JURY MAY GIVE MORE WEIGHT to evidence than it deserves, SPECULATE INAPPROPRIATELY ABOUT THE MEANING OR SIGNIFICANCE of evidence, BE MISLED by the evidence, and/or USE the evidence for an ILLEGITIMATE PURPOSE
Definitions - Evidence Act 2006 - OFFER EVIDENCE
PARTY & WITNESS
A party “offers” evidence. This includes CALLING A WITNESS WHO “GIVES EVIDENCE”
A PARTY WHO TESTIFIES BOTH GIVES AND OFFERS evidence. It also includes eliciting evidence by cross-examining a witness called by another party (merely putting a proposition to a witness is not offering evidence; it becomes so when the witness adopted the proposition: section 96(1) Evidence Act 2006; Morgan v R [2010] NZSC 23 per Elias CJ at [9]).
Definitions - Evidence Act 2006 - WITNESS: (X-EX)
witness is a person who gives evidence and IS ABLE TO BE CROSS-EXAMINED in a proceeding.
Definitions - Evidence Act 2006 - CHILD COMPLAINANT:
Complainant who is a child (UNDER 18 years) WHEN THE PROCEEDING COMMENCES (WHEN CHARGING DOC IS FILED NOT at the beginning of the trial).
Definitions - Evidence Act 2006 - CHILD WITNESS:
A witness who is a child WHEN THE PROCEEDING COMMENCES, and includes a child complainant BUT DOES NOT INCLUDE A DEFENDANT WHO IS A CHILD
Definitions - Evidence Act 2006 - INCRIMINATE (info leading to prosecution)
To incriminate is to PROVIDE INFORMATION that is reasonably LIKELY TO LEAD to, or INCREASE THE LIKELIHOOD OF A PROSECUTION of a person for a criminal offence.
Definitions - Evidence Act 2006 - STATEMENT: (S=FWS,FOS,N.V CONDUCT)
A statement 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.
Definitions - Evidence Act 2006 - HEARSAY STATEMENT (2ND HAND INFO)
A hearsay statement is a STATEMENT MADE BY A PERSON OTHER THAN A WITNESS AND IS OFFERED AS EVIDENCE in the proceeding to prove the truth of its contents. This definition of “hearsay statement” MEANS THAT OUT-OF-COURT STATEMENTS MADE BY A WITNESS (that is, someone who gives evidence and is able to be cross-examined in a proceeding) are not excluded by the hearsay rule on the basis that the maker is available to be cross-examined. Also, a STATEMENT OFFERED FOR SOME OTHER PURPOSE THAN TO PROVE THE TRUTH OF ITS CONTENTS, for example merely to show that the statement was made or uttered, is not a hearsay statement.
Definitions - Evidence Act 2006 - VERACITY:
Is to refrain from…?
veracity is the DISPOSITION (CHARACTER) of a person to REFRAIN FROM LYING
Definitions - Evidence Act 2006 - PROPENSITY
- ACT IN A PARTICULAR WAY
- SoM
Propensity is a person’s tendency to ACT in a particular way or have a particular STATE OF MIND.
Definitions - Evidence Act 2006 - DIRECT EVIDENCE
EYEWITNESS SAW, HEARD OR EXPERIENCED
Any EVIDENCE BY A WITNESS as to a fact in issue which he or she HAS SEEN, HEARD, OR EXPERIENCED (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife gives direct evidence).
Definitions - Evidence Act 2006 - CIRCUMSTANTIAL EVIDENCE
ALLOWS INFERENCES - E.G THE DEFENDANT WAS SEEN IN THE VICINITY OF THE SCENE OF CRIME
Evidence of circumstances that DO NOT DIRECTLY APPROVE ANY FACT in issue, BUT which ALLOW INFERENCES ABOUT the existence of THOSE FACTS to be drawn
Definitions - Evidence Act 2006 - ENFORCEMENT AGENCY
FISHERIES, IRD, CUSTOMS, POLICE HAVE A STATUTORY RESPONSIBILITY
An ENFORCEMENT AGENCY REFERS TO the New Zealand POLICE or ANY BODY or organisation THAT HAS A STATUTORY RESPONSIBILITY for the enforcement of an enactment (such as the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department).
Definitions - Evidence Act 2006 - GIVE EVIDENCE
RECOUNTING FACTS THE ORDINARY WAY (ORALLY), AFFIDAVIT (READING FWS) OR ALTERNATIVE WAY (SCREEN/AVL)
A person RECOUNTING FACTS or opinions in a proceeding “gives evidence”. In a proceeding, evidence may be given:
– the ORDINARY WAY of giving evidence is either ORALLY in a courtroom in the presence of a Judge (or Judge and jury), parties to the proceeding, counsel, and members of the public allowed by the Judge; OR in an AFFIDAVITT FILED in court OR BY READING A WRITTEN STATEMENT in a courtroom, if both prosecution and defence consent and the statement is admissible and is the personal statement of the deponent or maker;
- in an ALTERNATIVE WAY in the courtroom but UNABLE TO SEE THE DEFENDANT (SCREEN) or other person, outside the courtroom, OR BY VIDEO RECORD made before the hearing. The Courts (Remote Participation) Act 2010 provides for AUDIO AND VISUAL communication between participants (by audio-visual link), when some or all of them are NOT PHYSICALLY PRESENT at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss 103-106 Evidence Act 2006, which provides for applications and directions regarding alternative ways of giving evidence;
- in any other way provided for by the 2006 Act or any other enactment;
- where evidence is to be used in overseas criminal proceedings, “giving evidence” includes answering any question and producing any document (s195(3) Evidence Act 2006).
S.202A, C.A 1961
(a) O,W,M,o,A,F,C,B,I
(b) O,W,C,O,B,U,F,C,B,I
(1) In subsection (4)(a) of this section OFFENSIVE WEAPON means any article MADE or ALTERED for use for causing BODILY INJURY or INTENDED BY THE PERSON HAVING IT (POSSESSION) with him for such use.
(2) In subsection (4)(b) of this section OFFENSIVE WEAPON means any article CAPABLE of being USED FOR CAUSING BODILY INJURY.
(3) In this section DISABLING SUBSTANCE means any ANAESTHETISING or other substance PRODUCED FOR USE FOR DISABLING PERSONS, or INTENDED BY ANY PERSON HAVING IT (POSSESSION) with him for such use.
(4) Every one is liable to imprisonment for a term not exceeding 3 years –
(a) Who, without lawful authority or reasonable excuse, HAS WITH HIM in any PUBLIC PLACE any KNIFE or OFFENSIVE WEAPON or DISABLING SUBSTANCE; or
(b) Who has in his POSSESSION in ANY PLACE any OFFENSIVE WEAPON or DISABLING SUBSTANCE in circumstances that PRIMA FACIE show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.
(5) It is a defence to a charge under subsection (4)(b) of this section if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
Factors contributing to the success of Te Huringa o Te Tai
- EVERYONE,T,R
- I,T,DECISIONS,W,M
- T,W,W,INTERACT,W,O
- O,COMMITMENT TO LEARNING and BUILDING UPON OUR SUCCESSES
The responsibility to deliver this strategy sits with us all:
- EVERYONE taking responsibility
- in the DECISIONS we make
- the way we INTERACT with others
- our COMMITMENT TO LEARNING and BUILDING UPON OUR SUCCESSES
We need to lead this change together with iwi, whānau and our partners through our behaviours and attitudes, the work we do, and our visible commitment to partnership.
We are confident that we can BUILD ON THE SUCCESSES OF TURNING OF THE TIDE by continuing to listen to each other to SUPPORT THE VISION OF ALL MĀORI living full and prosperous lives, free from crime, victimisation, and road trauma.
Definitions - Evidence Act 2006 - PROBATIVE VALUE:
HOW STRONGLY AND CENTRALLY the evidence ASSISTS IN PROVING OR DISPROVING issues in a case.
HOW STRONGLY THE EVIDENCE POINTS TO THE INFERENCE it is said to support, and HOW IMPORTANT the evidence is to the issues in the trial, WILL DETERMINE THE LEVEL of probative value that a piece of evidence holds. In this sense, probative value of evidence is HOW STRONGLY AND CENTRALLY the evidence ASSISTS IN PROVING OR DISPROVING issues in a case.
Definitions - Evidence Act 2006 - RELEVANCE:
TENDANCY TO PROVE OR DISPROVE
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) Evidence Act 2006).
Definitions - Evidence Act 2006 - PROCEEDING:
A proceeding CONDUCTED BY A COURT, AND ANY INTERLOCUTORY (Judgement) OR OTHER APPLICATION TO A COURT connected with a proceeding.
Definitions - Evidence Act 2006 - WEIGHT OF EVIDENCE
ITS PROBATIVE VALUE EITHER SUPPORTED OR CONTRADICTED
The “weight” of evidence is ITS VALUE in relation to the facts in issue. This will DEPEND ON A WIDE RANGE OF FACTORS, such as 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; AND THE VERACITY OF THE WITNESS. The “weight” is the degree of probative value that can be accorded to the evidence.
Definitions - Evidence Act 2006 - FACT FINDER
Judge or jury
