More Questions

Question 1

Presumptions of law

Answer 1

Inferences that have been expressly drawn by law from particular facts. Can be either conclusive or rebuttable

Question 2

Presumptions of fact

Answer 2

Those that the mind naturally and logically draw from the facts given. E.g. one presumes a person has guilty knowledge if they are in possession of recently stolen goods.

Presumptions of fact are simply Logical inferences and so are always rebuttable

Question 3

Relevance - all relevant evidence is admissible except

Answer 3

All relevant evidence is admissible in a proceeding except evidence that is

– inadmissible under the act or any other act
– excluded under this act or any other act

Question 4

General exclusion provision - exclude evidence

Answer 4

In any proceeding, the judge must exclude evidence if it value is outweighed by the risk that the evidence will

– have an unfair prejudicial affect on the proceeding
– needlessly prolong the proceeding

Question 5

Hearing in Chambers

Answer 5

Section 15 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, particularly where the jury has excluded from the court room for the duration of the admissibility hearing.

Facts determined at the hearing in Chambers are sometimes referred to as preliminary facts or preliminary hearing

Question 6

Exclusive rules of evidence

Answer 6

– veracity
– propensity
– hearsay
– opinion
– identification
– improperly obtained evidence

Question 7

Propensity

Answer 7

a tendency to act in a particular way

Question 8

Veracity

Answer 8

a disposition to refrain from lying

In deciding whether or not evidence propose to be offered about the veracity of a person is substantially helpful, the judge may consider among other matters, whether the proposed evidence tends to show one or more of the following

– lack of velocity on the part of the person when under a legal obligation to tell the truth e.g. previous proceedings or signed declaration

– that the person has been convicted of one or more fences to indicate a propensity for dishonesty or lack of veracity

– any inconsistent statements made by the person

– bias on the part of the person

– a motive on the part of the person to be untruthful

Question 9

Evidence of the defendants veracity

Answer 9

The prosecution and a criminal proceeding may offer evidence About a defendants veracity only if

– the defendant has offered evidence about his or her veracity or has challenged the veracity of the prosecution witness by reference of other facts in issue
– the judge permits the prosecution to do so

Question 10

Hearsay defined

Answer 10

A statement that
– was made by a person other than the witness
– is offered an evidence at the proceeding to prove the truth of its contents

Question 11

The liability of hearsay evidence

Answer 11

Lack of reliability hearsay evidence
– where the maker of the statement is not called as a witness and is unable to be cross examined

– Concerns that juries cannot elevate evidence properly without being able to see the demeanour of the person who made the statement and question

– danger that witnesses will make statements about the meaning of the contents made by other people. The game of Chinese whispers

Question 12

Reliability circumstances

Answer 12

– Nature of the statement
– contents of the statement
– circumstances that relate to the making of that statement
– circumstances that relates to the veracity of that statement
– circumstances that relates to the accuracy of the observation of the person

Question 13

Unavailable as a witness

Answer 13

– Dead
– outside of New Zealand and not reasonably practice able to be a witness
– unfit due to age, physical or mental condition
– cannot be found
– is not compellable to give evidence

Question 14

General exclusionary rule – opinion

Answer 14

– Where a witness offers a bare opinion it holds little probative weight

– there is a danger that the witness offering opinion evidence will ‘usurp’ that function of the tribunal of fact, which is to draw the necessary inference from the facts present and evidence. Could confuse the tribunal and prolong proceedings

– a witnesses evidence of opinion maybe based on other evidence which, if stated expressly, would be admissible – opinion is based largely on propensity evidence

Question 15

Admissibility of non-expert opinion evidence

Answer 15

Must fulfil two criteria

– opinion must be the only way in which to affectively communicate the information from the fact finder

– the witness must be stating an opinion, be at conclusion, inference etc, from something personally perceived