Short answer

Question 1

What are the exceptions to the burden of proof being on the prosecution?

Answer 1

• Where the defence of insanity is claimed
• Specific statutory exceptions exist eg. Possession of offensive weapon
- the offence is a public welfare regulatory offence

Question 2

Describe 4 matters which the judge may consider in determining whether veracity evidence is substantially helpful?

Answer 2

(a) 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 one or more offence that indicate a propensity for dishonesty or a 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 3

Define circumstantial evidence and statement

Answer 3

Circumstantial evidence - is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn.

Statements – This 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.

Question 4

Define “Presumptions of Law” and “Presumption of Fact”?

Answer 4

Presumptions of Law – Are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable.

Presumptions of Fact – Are those that the mind naturally and logically draws from the given facts. They are always rebuttable.

Question 5

Define “Circumstances”relating to whether a statement is reliable. s16(1), E.A 2006’

Answer 5

Circumstances, in relation to a statement by a person who is not a witness includes –
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person
This is a non-exhaustive definition. It provides a list of matters the Court should consider when determining whether the circumstances relating to the statement provide reasonable assurance that the statement is reliable.

Question 6

Why is opinion evidence unreliable (3 Bullet Points)?

Answer 6

(1) Where a witness offers a bare opinion, it holds little probative use
(2) 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.
(3) A witness’s evidence of opinion may be based on other evidence, which if stated expressly would be inadmissible.

Question 7

Describe ‘Privilege’ and give two examples?

Answer 7

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. Privileged evidence can arise from the contents of the evidence, the class of evidence or because of the nature of a particular relationship.
• s54 – communications with legal advisors
• s55 – Solicitors trust accounts
• s56 – preparatory materials for proceedings
• s57 – Settlement negotiations or mediation

Question 8

Explain the s8 test?

Answer 8

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)). It is intended to help a Judge manage the length of a trial and or ensure the fairness of the proceeding.

Question 9

s25 – Expert OPINION evidence. The opinion must:

Answer 9

• 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 10

Three (3) reasons why s85, EA 06 ‘Leading Q’s’ are not permitted.

Answer 10

The general rule is that leading questions may not be during evidence in chief or re-examination because:

(1) 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.
(2) 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.
(3) There is a danger that leading Q’s will result in the manipulation or counsel a construction of the evidence through collusion conscious or otherwise, between counsel and the witness.

Question 11

What are the four (4) reasons that evidence in rebuttal can be recalled?

Answer 11

Rebuttal evidence may only be admitted with the leave of the Court. Such leave may be given to the prosecution if the further evidence:

(1) Relates to a purely formal matter.
(2) Relates to a matter arising out of the conduct of the defence the relevance of which could not reasonably have been foreseen.
(3) Was not available or admissible before the prosecution’s case was closed.
(4) Is required to be admitted in the interests of justice for any other reason.

Question 12

What are five (5) types of “Unacceptable” questions?

Answer 12

(1) Unfair,
(2) Improper,
(3) Misleading,
(4) Needlessly repetitive,
(5) Expressed in a language that is too complicated for the witness to understand.

Question 13

Define corroboration & list two (2) offences which corroboration is required by the prosecution?

Answer 13

Corroboration is not defined in the Act. 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.

(a) Perjury (Section 108 CA 1961)
(b) False oaths (Section 110 CA 1961)
(c) False statements or declarations (Section 111 CA 1961)
(d) Treason (Section 73 CA 1961)

Question 14

Explain to an 11 year olds parents what the judge will expect of the 11 year old in relation to Oath & Affirmation. (Promise to tell the truth)

Answer 14

Witnesses under the age of 12 must –

(1) Be informed by the judge of the importance of telling the truth and not telling lies, and
(2) After being given that information, make a promise to tell the truth, before giving evidence.

Question 15

Explain two (2) ways of GIVING EVIDENCE

Answer 15

ORDINARY WAY – either orally in a courtroom in the presence of a judge (or judge & jury) parties to the proceeding, counsel and members of the public allowed by the judge, or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution & defence consent, the statement is admissible, and it is the personal statement of the deponent or maker.
ALTERNATIVE WAY – In a courtroom but unable to see the defendant or other person, outside the courtroom, or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio visual link AVL) where some or all of them are not physically present at the place of hearing for all or part of the proceedings.

Question 16

What is the purpose of cross examination?

Answer 16

(1) To elicit information supporting the case of the party conducting the cross-examination.
(2) To challenge the accuracy of the testimony given in evidence in chief.

Question 17

If a witness has memory loss, citing legislation can they be called hostile?

Answer 17

A hostile witness means the witness (s4, EA 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.
Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding.
The fact that a witness suffers from memory loss does not, by itself justify finding the witness hostile.

Question 18

What are the four (4) principles of admissibility?

Answer 18

(1) Relevance
(2) Reliability
(3) Unfairness
(4) Public Interest

Question 19

What was found in R v WANHALLA in relation to reasonable doubt?

Answer 19

A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence

Question 20

Explain the term, “Facts that prove the charge”?

Answer 20

The facts must prove the elements of the charge and the evidence should be made up of facts that prove that charge. The actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 21

What are four (4) of the six (6) exclusive rules of evidence?

Answer 21

(1) Veracity
(2) Propensity
(3) Hearsay
(4) Opinion
(5) Identification
(6) Improperly obtained evidence

Question 22

DEFINE the following terms: ‘Facts in Issue’ and ‘Witness’?

Answer 22

Facts in issue are the facts which in law need to be proven to succeed with the case. In criminal cases the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.
Facts in issue are those which –
• The prosecution must prove to establish the elements of the offence
• The defendant must prove to succeed with a defence in respect of which he or she carries the burden of proof

Witness – This is a person who gives evidence and is able to be cross examined in a proceeding.

Question 23

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

Answer 23

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 24

Explain reasonable doubt / balance of probabilities – include the part in the module where it say ‘it means…’

Answer 24

The crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if at the end of the case, you are sure that the accused is guilty.

A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

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 required in a criminal case.

Question 25

DEFINE ‘Hostile Witness’ s4, EA 2006?

Answer 25

In relation to a witness means the witness
• 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

Question 26

DEFINE ‘leading question’ and what the general rule in relation to leading questions?

Answer 26

• One that directly or indirectly suggests a particular answer to the question (s4) Eg: answer yes or no.
• The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89)

Question 27

When are leading questions permitted?

Answer 27

S89(1), 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 Judges discretion, allows the question

Question 28

Explain a ‘voir dire’?

Answer 28

A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Facts determined at a voir dire are sometimes referred to as ‘preliminary facts’.

Question 29

Explain privilege and list four (4) categories of privilege.

Answer 29

Is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
s54 – Communications with legal advisors
s55 – Solicitors trust accounts
s56 – Preparatory materials for proceedings
s57 – Settlement negotiations or mediation

Question 30

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

Answer 30

• 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 31

Can a witness refresh their memory before court? Explain

Answer 31

Witnesses may, before they give evidence in Court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they have made some months before, or they may check their recollection of events with the officer who interviewed them.
The document used to refresh memory may have been made by either the witness or by someone else, the requirement is simply that the document relates to matters which are within the witnesses own knowledge.

Question 32

What is presumption of fact and give an example?

Answer 32

Presumptions of fact are those that the mind naturally and logically draws from the given facts.
Eg: one presumes that a person has guilty knowledge if they have possession of recently stolen goods

Question 33

What is the purpose of evidence law and give four (4) examples?

Answer 33

S6 – The purpose of this Act is to help secure the just determination of proceedings by –
(a) providing for facts to be established by the application of logical rule
(b) providing rules of evidence that recognize the importance of the rights affirmed by the NZBORA
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 34

Define Hearsay statement?

Answer 34

s4, E.A 2006 – ‘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 35

Define expert witness?

Answer 35

S4, E.A 2006 – “A person who has specialized knowledge or skill based on training, study or experience.” The judge must determine whether the expert witness is properly qualified to testify.

Question 36

What are the two (2) exceptions to the general prohibition on previous consistent statement (section 35 of the evidence act 2006)

Answer 36

S35(2) – A previous statement of a witness that is consistent with the witnesses evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

Question 37

s40(1) Propensity – what does ‘propensity evidence’ mean? And what does it exclude – s40(1)(b)?

Answer 37

S40 Propensity evidence –

(1) (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) one of the elements of the offence for which the person is being charged
(ii) the cause of action in the proceeding in question

Question 38

Explain the s.8 test?

Answer 38

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))
• It is intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding.

Question 39

s125(1) – Does a judge have to give a warning re: directions about evidence given by children?

Answer 39

(1) In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the Jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of warning had the complainant been an adult.

Question 40

s85 – List examples of unacceptable questions:

Answer 40

(1) In any proceeding, the judge may disallow, or direct that a witness is not obliged to answer any question/s that the Judge considers –
• Improper
• Unfair
• Misleading
• Needlessly repetitive
• Expressed in a language that is too complicated for the witness to understand

Question 41

What is the purpose of cross examination?

Answer 41

• To elicit information supporting the case of the party conducting the cross-examination
• To challenge the accuracy of the testimony given in evidence in chief

Question 42

s122(2) Judge MUST consider giving a warning whenever the following evidence is given: (evidence that may be unreliable)

Answer 42

(a) Hearsay evidence
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the Defendant
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a Defendant
(d) evidence of a statement by the defendant to another person made where both the defendant and the other person were detained in prison, a Police Station or another place of detention.

Question 43

Define statement?

Answer 43

This 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.

Question 44

List and describe two ‘alternative way’ of giving evidence?

Answer 44

• In the Court room but unable to see the Defendant or other person
• Outside the courtroom via CCTV
• By video recording made before the hearing

Question 45

Relevant evidence may be excluded if it’s unfair (prejudicial):

Answer 45

• 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.
Eg: An improper confession.

Question 46

Are all people eligible and compellable to give evidence?

Answer 46

A witness is eligible if they are lawfully able to give evidence on behalf of both the prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn they are under a compellable obligation to answer all the questions put to them.
As a general proposition all people are eligible and compellable to give evidence

Question 47

Define what is meant by unavailable witness s16(2)?

Answer 47

S16(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person-

(a) is dead, or
(b) is outside NZ & it is not reasonably practicable for him or her to be a witness, or
(c) is unfit to be a witness because of age or physical or mental condition, or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence

Question 48

What is the test for admissibility under s43, EA 06?

Answer 48

Is whether the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have unfairly prejudicial effect on the defendant.

Question 49

Fairness and General exclusion s8, EA 2006?

Answer 49

Even though evidence is relevant, it may be excluded if it would result in unfairness. Eg:

(1) Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
(2) 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.

Question 50

Explain the case law in relation to Balance of probabilities.

Answer 50

Miller v Minister of Pensions – Where the defence is required to prove a particular element, such as insanity, 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 51

Judicial notice – s128 and s129, EA 2006.

Answer 51

When a Court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.
Eg: Rather than calling an expert witness to swear Christmas is on 25 December, judicial notice would be taken of the date
S128 – is concerned only with facts that are facts in issue or relevant to a fact in issue.
S129 – Codifies the common law exception to the hearsay rule that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature

Question 52

In deciding whether to give permission for the prosecution to question the defendant about their veracity, the Judge may take into account

Answer 52

S38(3)(a) 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.

(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence.
(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 53

Under s16(1), a business record means a document that is made:

Answer 53

(1) To comply with a duty or in the course of a business, and as a record or part of a record of that business.
(2) from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the Court to have had, personal knowledge of matters dealt with in the information he or she supplied.

Question 54

Section 59 deals with privilege in relation to information obtained by medical practitioners. Who does this section not apply to:

Answer 54

S59(1)(b) – This section does not apply in the case of a person who has been required by an order of a judge or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination test or for any other purpose.

Question 55

Corroboration S121, EA 2006’

Answer 55

(1) 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 –
(a) perjury (s108, C.A 1961)
(b) false oaths (s110, C.A 1961)
(c) false statements or declarations (s111, C.A 1961)
(d) Treason (s73, C.A 1961)

Question 56

Oaths and Affirmations

Answer 56

(1) Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s77)
(2) 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 57

s35(3), EA 2006’ – Previous Consistent Statements rule.

Answer 57

S35(3) – A previous statement of a witness that is consistent with the witness’s evidence is admissible if:

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable, and
(b) the statement provides the Court with information that the witness is unable to recall