Law 1

Question 1

Burden of proof

Answer 1

Refers to the responsibility of proving a disputed charge or allegation.

In criminal cases, the prosecution has this responsibility and the standard of proof that applies is beyond a reasonable doubt. This means that it is the prosecutor’s role to prove beyond a reasonable doubt that the defendant is guilty of committing the alleged offence(s); the defendant does not have to prove their innocence.

Question 2

Case Review Hearing

Answer 2

A case review hearing is held to examine whether a charge can be resolved without the need for a trial. For example, if the prosecution withdraws the charges against you, or if you plead guilty to the charges, there would be no trial.

If a trial is to occur, the case review hearing is also an opportunity for either party to highlight any matters that need to be resolved before the trial takes place.

Question 3

Evidence

Answer 3

“Evidence” is the term for the whole body of material which a court or tribunal – i.e. in criminal cases the Judge or jury – may take into account in reaching their decision. Evidence may be in oral, written or visual form.

Question 4

Admissible evidence

Answer 4

Evidence is admissible if it is legally able to be received by a court.

Question 5

Relevance

Answer 5

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)of the Evidence Act 2006).

Question 6

Facts in issue

Answer 6

Facts in issue are those which:
• 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 of proof.

Question 7

Exclusionary rules

Answer 7

These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).

Question 8

Accused

Answer 8

A person accused of an offence, who is to be tried by jury is known as an accused.

Question 9

Adjournment

Answer 9

Postponement (of a hearing) either to another date or until later the same day.

Question 10

Call over

Answer 10

A pre-trial review to set dates for trial and other matters pertaining to trial in the indictable jurisdiction

Question 11

Defended hearing

Answer 11

A trial before a single judge in the summary jurisdiction .

Question 12

Giving evidence

Answer 12

“ Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence.

Can be given in the ordinary way eg orally, or an alternative way, eg a video recording or any other way

Question 13

Disclosure

Answer 13

Information given to defence counsel (or the defendant) by the officer in charge of the case or the prosecution, about the police case against him or her. Could be in the form of an “initial disclosure package” but could also be a later disclosure package with new could contain new relevant information.

Disclosure is a copy of the evidence that the Crown and police have collected to prosecute.

Question 14

Proceeding

Answer 14

An activity or process conducted by a court, and any application to a court connected with a proceeding.

Question 15

Statement

Answer 15

This is a spoken or written assertion by a person, or nonverbal conduct of a person intended by that person as an assertion of any matter.

Question 16

Indictable

Answer 16

An indictable trial is one where the accused has been charged with the more serious types of offences and is usually a trial by jury

Question 17

Prosecution

Answer 17

The institution and carrying on of legal proceedings against a person. Summary cases are prosecuted by the Police Prosecution Section. Indictable cases are prosecuted by the Crown. Various government departments also have prosecuting Officers, for example Ministry of Primary Industries and Customs.

Question 18

Public gallery

Answer 18

Seats at the back of a courtroom reserved for the public, defendants and complainants waiting and their supporters. At times the court may choose to prevent public viewing of a court case.

Question 19

Stand down

Answer 19

A colloquial expression meaning adjourn (postpone) the case, usually briefly (until later the same day); it is often used by a judge as an order to a defendant to leave the dock as the hearing is over for the day (adjourned until trial or sentencing perhaps).

Question 20

Summary

Answer 20

Summary proceedings are proceedings in the District Court for less serious offences; a summary trial is by a District Court judge alone (no jury) and known as a “defended hearing” in New Zealand.

Question 21

Witness

Answer 21

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

Question 22

Hearsay statement

Answer 22

The oral and written statement of a person who is not produced as a witness in court AND the statement is given to the court by another person or in a document AND the purpose of the evidence is to prove the truth of what has been stated

Generally inadmissible because of reliability issues and inaccuracies

Admissible if reliable and
the person is unavailable or
it would cause undue expense or delay in obtaining the witness

Question 23

Evidence in Chief

Answer 23

Also referred to as direct examination, evidence in chief is the questioning of a witness by the party who called him or her, in a trial.

Question 24

Cross examination

Answer 24

The questioning of a witness or party during a trial, hearing or deposition, by the opposing party, in order to challenge or extend a testimony already given

Question 25

Re Examination

Answer 25

After cross examination, counsel calling a witness may wish to reexamine him, being limited to clearing up points left in doubt; if re-examination discloses some new matter, the court may permit further cross-examination.

Question 26

Direct evidence

Answer 26

This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife)

Question 27

Circumstantial evidence

Answer 27

This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime).

Question 28

Criminal Law

Answer 28

Deals with imprisonable offence and fine only offences

• a wrong against the community generally
• principal objective is to punish
• proceedings taken by the Police on behalf of the crown
• proceedings can only be withdrawn by consent of the court

Question 29

Civil law

Answer 29

Deals with the protection of individual rights. Breaches of the rules are called Torts.

• a wrong affecting individuals
• principal objective is to seek compensation or redress
• proceedings taken by and for the injured party (plaintiff)
• plaintiff may withdraw proceedings at any time

Question 30

Adversarial justice system

Answer 30

Involves a legal contest between two parties, the State (represented by the prosecution) and the accused (represented by the defence).
Parties present arguments in court, where either a judge or jury will determine guilty or not.
Judge is an impartial referee.
Witnessed can be cross examined by opposing party to test the reliability of the evidence.
Defendant does not have to give evidence.
Facts emerge by questions to witnesses called by each party

Question 31

Law

Answer 31

A law is a rule of human conduct enforced by the State through the courts of law. The enforcing authority is the State.

Question 32

The test for prosecution

Answer 32

The Evidential Test
Prosecutors must be satisfied there is enough evidence to provide a “realistic prospect of conviction” against the defendant.

The Public Interest Test
Prosecution is required in the public interest

Question 33

4 types of evidence

Answer 33

Real evidence - physical objects
Documentary evidence - written statements and documents
Personal evidence - what the parties or witnesses say
Expert evidence - specialist evidence based on opinions and views

Question 34

Practical obligation on the defence

Answer 34

Needs to produce some story/evidence to suggest conclusion is wrong
Not necessarily a particular defence, just needs to suggest reasonable doubt

Question 35

Balance of probabilities

Answer 35

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities is must show it is more probable than not.
If the probabilities are equal, the burden is not discharged

Question 36

Beyond reasonable doubt

Answer 36

Prosecutor must prove version of events to this standard

There could be no reasonable doubt in the mind of a reasonable person that the defendant is guilty

Question 37

Reliable evidence

Answer 37

There are some exclusionary rules for reliability. Eg hearsay and opinion.

If the evidence is believed to be accurate based on logic or scientific principals or characteristics of the witness, then it may be deemed reliable.

Question 38

Fairness/unfairness

Answer 38

Evidence must be fair. It may be excluded if it would result in unfairness. Either,
Evidence may be excluded if it would result in unfair prejudice on the proceeding or it was obtained in an unfair manner

Question 39

Unfair prejudice on the proceeding

Answer 39

Evidence will be admitted if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding or if it is strong enough to justify a prolonging of the proceeding.
Danger of giving evidence more weight than it deserves.

Question 40

Voir dire

Answer 40

Hearing within a hearing to determine admissibility. Jury excluded from courtroom

Question 41

Provisional admissibilty

Answer 41

Judge may admit evidence subject to further evidence coming later which establishes admissibility