Module

Question 1

Discuss the presumption of innocence as per Woolmington v DPP

Answer 1

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.

Question 2

The burden of proof lies with the prosecution (Woolmington principle) except where:

Answer 2

The defence of insanity is claimed
Specific statutory exceptions exist
The offence is a public welfare regulatory offence

Question 3

In a proceeding, evidence may be given in the following ways:

Answer 3

The ordinary way
The alternative way, such as by video link
Any other way provided for by the EA 2006 or any other enactment

Question 4

Facts in issue are those which:

Answer 4

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 5

Define presumption of law

Answer 5

Presumptions of law are inferences that have been expressly drawn by law from particular facts. Either conclusive or rebuttable.

Question 6

What are presumptions of fact

Answer 6

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.

Question 7

What are the principles of evidence law for determining admissibility

Answer 7

Relevance
Reliability
Unfairness

Question 8

Define relevant evidence

Answer 8

evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Question 9

Define s8 - General exclusion

Answer 9

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

Question 10

What do the exclusive rules of evidence deal with?

Answer 10

Veracity
Propensity
Hearsay
Opinion
Identification
Improperly obtained evidence

Question 11

Define veracity

Answer 11

A disposition to refrain from lying

Question 12

Define propensity

Answer 12

A tendency to act in a particular way

Question 13

Hearsay statement is defined as:

Answer 13

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

Question 14

Why is hearsay evidence often regarded as unreliable?

Answer 14

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.

Question 15

The burden of proof means

Answer 15

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

Question 16

Explain the standard of proof for both prosecution and defence

Answer 16

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.

Question 17

Reasonable doubt

Answer 17

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.

Question 18

R v Wanhalla

Answer 18

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.

Question 19

S6 purpose

The act aims to “help secure the just determination of proceedings” through the six objectives set out in s6

Answer 19

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

Question 20

Circumstantial evidence

Answer 20

A fact that by inference can prove another fact in issue

Question 21

General rule

Answer 21

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

Question 22

Define s15

Answer 22

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’.

Question 23

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:

Answer 23

(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

Question 24

s38 - Evidence of defendant’s veracity

The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if -

Answer 24

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

Question 25

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)

Answer 25

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

Question 26

Define propensity evidence

Answer 26

(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

Question 27

Propensity evidence includes

Answer 27

Propensity as to actions

Propensity as to state of mind (eg lack of inhibition, a love of violence)

Question 28

Propensity evidence does not include

Answer 28

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)

Question 29

Define hearsay statement

Answer 29

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

Question 30

What are the two criteria for admissibility under s18

Answer 30

Reliability, and

Unavailability, or that undue expense or delay would be caused

Question 31

S16(1) EA 2006 defines circumstances. Circumstances in relation to a statement by a person who is not a witness, include:

Answer 31

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

Question 32

S16(2) defines what is meant by unavailable as a witness

Answer 32

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

Question 33

The justifications for the opinion rule are

Answer 33

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

Question 34

In order to be admissible under s24 the statement of opinion must fulfil two basic criteria. State the criteria.

Answer 34

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 35

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

Answer 35

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

Question 36

Define expert

Answer 36

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.

Question 37

S73 - An associated defendant is not compelled to give evidence for or against a defendant in a criminal proceeding unless -

Answer 37

The associated defendant is being tried separately from the defendant; or

The proceeding against the associated defendant has been determined.

Question 38

Under s74 who is not compelled to give evidence

Answer 38

Judges, in respect of their conduct as a judge
The sovereign
Governor-General
Sovereign or Head of State of a foreign country

Question 39

Define privilege

Answer 39

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

Question 40

Types of privilege

Answer 40

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

Question 41

Define self-incrimination

Answer 41

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 42

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 42

Perjury; and
False oaths; and
False statements or declarations; and
Treason

Question 43

Define corroboration

Answer 43

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

Question 44

What is the judge’s role in a trial by jury

Answer 44

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

Question 45

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence. What about witnesses under 12?

Answer 45

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

Question 46

Define a leading question

Answer 46

One that directly or indirectly suggests a particular answer to the question.

Question 47

The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons

Answer 47

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.

Question 48

In any proceeding a leading question must not be put to a witness in examination in chief or re-examination unless

Answer 48

(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

Question 49

If a witness wishes to consult a document while giving evidence, what conditions must be satisfied

Answer 49

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

Question 50

There are two purposes of cross-examination. What are they?

Answer 50

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

Question 51

S35 - A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless

Answer 51

(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

Question 52

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

Answer 52

(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