Module Flashcards
Discuss the presumption of innocence as per Woolmington v DPP
The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington Principle”. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
The burden of proof lies with the prosecution (Woolmington principle) except where:
The defence of insanity is claimed
Specific statutory exceptions exist
The offence is a public welfare regulatory offence
In a proceeding, evidence may be given in the following ways:
The ordinary way
The alternative way, such as by video link
Any other way provided for by the EA 2006 or any other enactment
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.
Define presumption of law
Presumptions of law are inferences that have been expressly drawn by law from particular facts. Either conclusive or rebuttable.
What are presumptions of fact
Presumptions of fact are those that the mind naturally and logically draws from the given facts.
Presumptions of fact are simply logical inferences, and so are always rebuttable.
What are the principles of evidence law for determining admissibility
Relevance
Reliability
Unfairness
Define relevant evidence
evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
Define s8 - General exclusion
The s8 test involves balancing the probative value of evidence against the risk that it will:
Have an unfairly prejudicial effect on the proceeding (s8(1)(a)), or
Needlessly prolong the proceeding (s8(1)(b))
Evidence will be admitted under s8 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
What do the exclusive rules of evidence deal with?
Veracity Propensity Hearsay Opinion Identification Improperly obtained evidence
Define veracity
A disposition to refrain from lying
Define propensity
A tendency to act in a particular way
Hearsay statement is defined as:
A statement that -
(a) was made by a person other than a witness; and
(b) Is offered in evidence at the proceeding to prove the truth of its contents
Why is hearsay evidence often regarded as unreliable?
Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people.
The burden of proof means
Whoever asserts something must prove it
In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused is guilty rather than the accused having to prove their innocence. All that a defendant needs to do is raise a doubt as to their guilt
In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt
Explain the standard of proof for both prosecution and defence
The standard of proof where the legal burden is on the prosecution is “beyond reasonable doubt”. Where the defence bears the burden, it need only be proved on the “balance of probabilities”. It must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.
Reasonable doubt
An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.
R v Wanhalla
The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
S6 purpose
The act aims to “help secure the just determination of proceedings” through the six objectives set out in s6
By -
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the NZ Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence
Circumstantial evidence
A fact that by inference can prove another fact in issue
General rule
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 to the general rule are when no evidence needs to be given of facts because:
Judicial notice is taken
The facts are formally admitted
Define s15
S15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a ‘hearing in chambers’ or ‘chambers hearing’.
S37 - Veracity rules
In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) Lack of veracity on the part of the person when under a legal obligation to tell the truth
(b) That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
(c) Any previous inconsistent statements made by the person
(d) Bias on the part of the person
(e) A motive on the part of the person to be untruthful
s38 - Evidence of defendant’s veracity
The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if -
The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and
The judge permits the prosecution to do so
In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, what will the judge take into account under s38(3)
The extent to which the defendant’s veracity, or the veracity of a prosecution witness, has been put in issue in the defendant’s evidence
The time that has elapsed since any conviction about which the prosecution seeks to give evidence
Whether any evidence given by the defendant about veracity was elicited by the prosecution
Define propensity evidence
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is -
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question
Propensity evidence includes
Propensity as to actions
Propensity as to state of mind (eg lack of inhibition, a love of violence)
Propensity evidence 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
Evidence that is solely or mainly about veracity (governed by the veracity riles set out in s37)
Define hearsay statement
A statement that -
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents
What are the two criteria for admissibility under s18
Reliability, and
Unavailability, or that undue expense or delay would be caused
S16(1) EA 2006 defines circumstances. Circumstances in relation to a statement by a person who is not a witness, include:
The nature of the statement; and
The contents of the statement; and
The circumstances that relate to the making of the statement; and
Any circumstances that relate to the veracity of the person; and
Any circumstances that relate to the accuracy of the observation of the person
S16(2) defines what is meant by unavailable as a witness
If the person is -
Dead; or
Outside NZ and it is not reasonably practicable for him or her to be a witness; or
Is unfit to be a witness because of age or physical or mental condition; or
Cannot with reasonable diligence be identified or found; or
Is not compelled to give evidence
The justifications for the opinion rule are
Where a witness offers a bare opinion it holds little probative weight
There is a danger that a witness offering 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
In order to be admissible under s24 the statement of opinion must fulfil two basic criteria. State the criteria.
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
If evidence is opinion evidence, then in order to comply with s25, the opinion must:
Be that of an expert
Comprise expert evidence, and
Offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding
Define expert
A person who has specialised 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.
S73 - An associated defendant is not compelled to give evidence for or against a defendant in a criminal proceeding unless -
The associated defendant is being tried separately from the defendant; or
The proceeding against the associated defendant has been determined.
Under s74 who is not compelled to give evidence
Judges, in respect of their conduct as a judge
The sovereign
Governor-General
Sovereign or Head of State of a foreign country
Define privilege
Privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
Types of privilege
Communications with legal advisors - s54
Solicitors’ trust accounts - s55
Preparatory materials for proceedings - s56
Settlement negotiations or mediation - s57
Communications with ministers of religion - s58
Information obtained by medical practitioners and clinical psychologists - s59
Privilege against self-incrimination - s60
Informer privilege - s64
Define self-incrimination
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
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 -
Perjury; and
False oaths; and
False statements or declarations; and
Treason
Define corroboration
It 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
What is the judge’s role in a trial by jury
He or she must:
Decide all questions concerning the admissibility of evidence;
Explain and enforce the general principles of law applying to the point at issue;
Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence. What about witnesses under 12?
Witnesses under the age of 12 must:
Be informed by the judge of the importance of telling the truth and not telling lies, and
After being given that information, make a promise to tell the truth, before giving evidence
Define a leading question
One that directly or indirectly suggests a particular answer to the question.
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons
There is a natural tendency for people to agree with suggestions put to them by saying ‘yes’, even if those suggestions do not precisely accord with their own view of what happened.
Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
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.
In any proceeding a leading question must not be put to a witness in examination in chief or re-examination unless
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the judge, in exercise of the judge’s discretion, allows the question
If a witness wishes to consult a document while giving evidence, what conditions must be satisfied
The leave of the judge must be obtained
The document must be shown to every other party in the proceeding
s90(5) requires the document to have been made or adopted by a witness at a time when his or her memory was fresh
There are two purposes of cross-examination. What are they?
To elicit information supporting the case of the party conducting the cross-examination; and
To challenge the accuracy of the testimony given in evidence-in-chief
S35 - A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless
(a) the statement 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
(b) the statement forms an integral part of the events before the court; or
(c) the statement consists of the mere fact that a complaint has been made in a criminal case
s85 - Unacceptable questions
In any proceeding, the judge may disallow, or direct that a witness is not obliged to answer, any question that the judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
The judge may have regard to
(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological,or psychiatric impairment of the witness; and
(c) the linguistic or cultural background or religious beliefs of the witness; and
(d) the nature of the proceeding; and
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding
