Short Answer Flashcards
What did the case Woolmington v DPP establish in relation to the presumption of innocence?
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 prosecution in relation to all of the elements of the offence
Define a hostile witness pursuant to section 4 of the evidence act 2006
- exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
- gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness: or
- Refuses to answer questions or deliberately withholds evidence
What 3 principles of evidence law do the court have to reference when deciding whether evidence is admissible?
- relevance
- reliability
- unfairness
(A) What is a leading question?
(B) What is the general rule in relation to leading questions?
(A) a leading question is one that directly or indirectly suggests a particular answer to the question
(B) the general rule is that the leading questions may not be asked during examination in chief or re examination
Define witness
- witness
(Witness) This is a person who gives evidence and is able to be cross-examined in a proceeding.
What does “propensity evidence” means?
Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person alleged to have been involved.
List four types of privilege
- Privilege against self-incrimination
- informer privilege
- communication with legal advisors
- communication with ministers of religion
- information obtained by medical practitioners or clinical psychologists
- prep materials for proceedings
- settlement negotiations or mediation
What is the definition of a 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
The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. What are the two exceptions to this rule?
The burden of proof lies with the prosecution except where:
- the defence is insanity is claimed
- specific stat exceptions exist, such as possession of an offensive weapon
- the offence is a public welfare regulatory offence
Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. Name four of these matters?
- Lack of veracity on the part of the person when under a legal obligation to tell the truth.
- That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity.
- Any previous inconsistence statements made by the person
- Bias on the part of the person
- A motive on the part of the person to be untruthful
Define the following terms:
- Statement
(Statement) is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter
What are the presumptions of Law?
Presumptions of Law are inferences that have been expressly drawn by law from particular facts.
They may either be conclusive or rebuttable.
The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
According to section 16(1) of the evidence act, 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
A - Describe what privilege is in relation to the giving of evidence
B – Name two privileges outlined in the Evidence Act 2006
- A 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.
- Any two of the following:
- Privilege for communications with legal advisors – s54
- Privilege and solicitors trust accounts – s55
- Privilege for preparatory materials for proceedings – s56
- Privilege for settlement negotiations or mediation – s57
- Privilege for communications with ministers of religion – s58
- Privilege for information obtained by medical practitioners and clinical psychologists – s59
- Privilege against self-incrimination – s60
- Informer privilege – s64
The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination. What are the three reasons why leading questions are not generally permitted?
- 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.
List four of the functions of the judge’s role in a trial by jury:
- To decide all questions concerning the admissibility of evidence
- To determine if there is any evidence fit to be submitted to the jury for consideration
- To explain and enforce the general principles of law
- To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?
The rule against hearsay statements lies in the lack of reliability of hearsay evidence, because:
* Where the maker of a statement is not called as a witness, they are unable to be cross-examined regarding its contents, etc * 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
Give two exceptions to the general rule concerning leading questions
- Any two of the following:
- Introductory or disputed facts
- Identification
- Assisting memory
- Contradiction
- Hostile witnesses
- Define the following terms:
- Direct evidence
- Admissible evidence
- Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.
- Admissible evidence: evidence is admissible if it is legally able to be received by a court
- When is a witness deemed to be unavailable as a witness according to Section 16(2) of the Evidence Act 2006?
Section 16(2) defines what is meant by ‘unavailable as a witness”
For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person –
* Is dead, or
* Is outside New Zealand and 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 compellable to give evidence
- Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?
The duty to cross-examine will arise when four conditions are present:
* Cross-examination must deal with ‘significant matters’ in the proceeding * The matters must be ‘relevant’ and ‘in issue’ * The matters must ‘contradict the evidence of the witness’ and * The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters’.
- There are two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law. Name these two types of offences:
there are two types of offence – perjury and related offences (s108, 110 and 111 Crimes Act 1961) and treason (s73 Crimes Act 1961)
- Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.
The veracity and propensity rule do not apply to bail or sentencing hearings except when:
* The evidence relates directly or indirectly to the sexual experience of the complainant with any person other that the defendant
* Or his or her reputation in sexual matters.
- What are two types of questions that can be asked once a witness has been declared hostile?
When a witness has been declared hostile, the prosecutor may conduct the examination-in-chief like a cross examination. The witness may be (any two of):
Asked leading questions
* Challenged with regard to how they know the facts about that which they are testifying
* Tested on such matters as to their accuracy of memory and perception.
Define Presumption of fact and example
Presumptions of facts are those that the mind naturally and logically draw from the facts given.
For example assuming a person has guilty knowledge if they are in possession of stolen goods.
They are always rebuttable.
Define facts in issue
(Facts in issue) are those which:
- the prosecution must prove in order to establish the elements of the offence or
- the defendant must prove in order to succeed with a defence, in respect of which he or she carries the burden of proof.
