Law 1 Flashcards
Burden of proof
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.
Case Review Hearing
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.
Evidence
“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.
Admissible evidence
Evidence is admissible if it is legally able to be received by a court.
Relevance
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).
Facts in issue
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.
Exclusionary rules
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).
Accused
A person accused of an offence, who is to be tried by jury is known as an accused.
Adjournment
Postponement (of a hearing) either to another date or until later the same day.
Call over
A pre-trial review to set dates for trial and other matters pertaining to trial in the indictable jurisdiction
Defended hearing
A trial before a single judge in the summary jurisdiction .
Giving evidence
“ 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
Disclosure
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.
Proceeding
An activity or process conducted by a court, and any application to a court connected with a proceeding.
Statement
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.
Indictable
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
Prosecution
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.
Public gallery
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.
Stand down
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).
Summary
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.
Witness
This is a person who gives evidence and is able to be cross-examined in a proceeding.
Hearsay statement
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
Evidence in Chief
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.
Cross examination
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
Re Examination
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.
Direct evidence
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)
Circumstantial evidence
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).
Criminal Law
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
Civil law
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
Adversarial justice system
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
Law
A law is a rule of human conduct enforced by the State through the courts of law. The enforcing authority is the State.
The test for prosecution
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
4 types of evidence
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
Practical obligation on the defence
Needs to produce some story/evidence to suggest conclusion is wrong
Not necessarily a particular defence, just needs to suggest reasonable doubt
Balance of probabilities
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
Beyond reasonable doubt
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
Reliable evidence
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.
Fairness/unfairness
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
Unfair prejudice on the proceeding
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.
Voir dire
Hearing within a hearing to determine admissibility. Jury excluded from courtroom
Provisional admissibilty
Judge may admit evidence subject to further evidence coming later which establishes admissibility
