Progress Tests Flashcards
What are facts in issue?
Facts in issue are those which the prosecution must prove in order to establish the elements of the offence, or those which the defendant must prove in order to succeed with a defence in respect of which, he or she carries the burden of proof.
was held in Woolmington v DPP [1935] AC 462?
In the case of Woolmington v Director of Public Prosecutions, it was held that the prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
Explain the difference between the terms “beyond reasonable doubt” and on the “balance of probabilities”
Beyond reasonable doubt is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict.
Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.
What are the six objectives of the Evidence Act 2006 as set out in s6?
The purpose of the Act is to help secure the just determination of proceedings by:
− providing for facts to be established by the application of logical rules
− providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990
− promoting fairness to parties and witnesses
− protecting rights of confidentiality and other important public interests
− avoiding unjustifiable expense and delay, and
− enhancing access to the law of evidence.
What are the two ways in which unfairness usually arises and may result in the exclusion of evidence?
Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.
Specific restrictions aside, if evidence is admitted, for what purposes can it be used?
Once evidence is admitted, it can generally be used for all purposes: “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all” (Hart v R [2010] NZSC 91 at [54]).
What is the propensity rule of evidence?
Propensity evidence 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 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, or
− the cause of action in the proceeding in question.
What is the definition of a hearsay statement in the Evidence Act 2006?
Under the Act, a hearsay statement is defined as (s4):
“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”
Define an “expert” under s4 of the Evidence Act 2006.
Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill, based on training, study or experience”.
When would a communication with a legal adviser be ‘privileged’?
A communication with a legal adviser would be privileged when:
(a) The communication must be intended to be confidential.
(b) The communication must be made for the purposes of obtaining or giving legal services
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations.
Section 73 of the Evidence Act 2006 sets out the basic rules of non-compellability to give evidence in a criminal proceeding.
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply.
(a) The associated defendant is being tried separately from the defendant; or
(b) The proceeding against the associated defendant has been determined.
What is the meaning of self-incrimination under s4 of the Evidence Act 2006?
Self-incrimination is “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” (s4).
What types of offences are considered by law to require corroboration?
There are two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction. These are:
− perjury and related offences (ss108, 110 and 111 Crimes Act), and
− treason (s73 Crimes Act).
What is the role of a judge in a trial by jury?
When a judge is presiding over a trial by jury, his or her role is to:
− decide all questions concerning the admissibility of evidence
− determine whether there is any evidence that is fit to be submitted to the jury for its consideration
− 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.
Define “leading question” under s4 of the Evidence Act 2006.
A leading question is one that directly or indirectly suggests a particular answer to the question.
