Short Answer Part 1 and 2

Question 1

Presumption of law

Answer 1

Inferences that have been expressly drawn by law from particular facts.

Presumptions of law may either be conclusive or rebuttable.

EG Achild under 10 cannot be convicted of an offence.

Question 2

Presumptions of Facts

Answer 2

Simply logical inferences and so are always rebbutable.

EG A person in possession of recently stolen goods is presumed to have the guilty knowledge.

Question 3

Judicial Notice

Answer 3

When a court takes a judicial notice of a fact it will find that the facts exist OR will direct the judge or jury to do so even though the evidence has not been established.

EG Christmas day the date is the 25th of December, judicial notice would be taken for the date.

Question 4

The two main exceptions to the general rule are when no evidence needs to be given of facts because:

Answer 4

Judicial notice is taken

The facts are formally admitted

Question 5

General rule of evidence

Answer 5

All facts in issue and facts relevant to the issue must be proved by evidence.

Question 6

Good evidence, facts that prove the charge

Answer 6

The facts must prove the elements of the charge, and the evidence should be made up of facts that prove the charge.

In each case the actual charge and elements of it should be borne in mind when decided what evidence is relevant and what evidence will prove the guilt of the person charged.

Question 7

Facts in issue

Answer 7

Are the facts which in law need to be proven to succeed with the case. (usually facts in the charging document).

Facts in issue are those which:

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 they carry the burden of proof.

Question 8

Circumstantial evidence

Answer 8

Evidence of circumstances that do not prove any fact or issue but allow inferences about the existence of those facts to be drawn.

Pieces of circumstantial evidence viewed as a whole are sufficient to prove guilt.

EG offender was seen in the vacinity of the scene of the crime.

Question 9

S6 Purpose

Answer 9

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 rules;and
(b) providing rules of evidence that recognise the importance of rights affirmed by the NZBORA 90;and
(c) promoting fairness to parties and witnesses;and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding undue expense and delay; and
(f) enhance access to the law of evidence.

Question 10

Discharging burden of proof

Answer 10

In general where the legal burden is on the prosecution it must be discharged beyond reasonable doubt.

Any element which the defence bears need only be proved beyond the balance of probabilities.

Question 11

Evidence definition

Answer 11

Whole body of material which a court or tribunal may take into account when reaching their decision.

May be oral, written or visual form.

Question 12

Hearsay statement

Answer 12

This is a statement that was made by a person other than a witness.

Offered in evidence in the proceeding to prove the truth of its contents.

Maker of the statement can be cross-examined.

Not a hearsay statement if someother purpose than proving truth of its contents.

Question 13

Veracity

Answer 13

The disposition of a person to refrain from lying, whether generally or in a proceeding.

Question 14

Propensity

Answer 14

Evidence about a persons propensity to act in a certain way or have a particular state of mind.

Question 15

Direct evidence

Answer 15

Evidence given by a witness as to a fact in issue that they have seen, heard or otherwise experienced.

EG An eye witness

Question 16

Limited use of evidence and use for multiple purposes (Hart v R)

Answer 16

The statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or not admissible at all.

Question 17

Burden of proof

Answer 17

The fundamental principle in criminal law is the presumption of innocence known as Woolmington principle.

The principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all the elements of the offence.

Question 18

Exceptions to Woolmington Principle

Answer 18

• The defence of insanity is claimed
• Specific statutory exception exists EG possession of offensive weapon
• The offence is a public welfare offence (strict liability offence)

Question 19

Standard of proof and discharging burden of proof

Answer 19

Where the legal bourdon is on the prosecution it must be discharged beyond reasonable doubt.

Any element which the defence bears the burden of proving need only be proved on the balance of probabilities.

Question 20

Standard of proof and discharging burden of proof

Answer 20

Where the legal bourdon is on the prosecution it must be discharged beyond reasonable doubt.

Any element which the defence bears the burden of proving need only be proved on the balance of probabilities.

Question 21

Beyond reasonable doubt (R v Wanhalla)

Answer 21

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.

The starting point is the presumption of innocence. You must treat the accused as innocent until the crown has proven their guilt.

The presumption of innocence means that accused does not have to give or call evidence and does not have to establish their innocence.

Question 22

Ways to give evidence

Answer 22

1. In the ordinary way:
   Orally in the court room
   In an affidavit filed in court
   Reading a written statement
2. In an alternative way
   In the courtroom but unable to see the defendant. Outside the courtroom or by video recording made prior to the hearing.
3. In any other way
   Provided by the evidence act 2006
   Or any other relevant act

Question 23

Statement

Answer 23

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 24

Witness

Answer 24

Person who gives evidence and is able to be cross-examined in a proceeding.

Question 25

Determining admissibility

Answer 25

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law.

1. Relevance
2. Reliability
3. Unfairness
4. Public interest

Question 26

S7 Fundamental principle that relevant evidence admissible

Answer 26

(1) All relevant evidence is admissible in a proceeding except evidence that is-
(a) inadmissible under this act or any other act
(b) excluded under this act or any other act
(2) Evidence that is not relevant is not admissible in a proceeding
(3) Evidence is relevant in a proceeding of it has the tendancy to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 27

Inadmissibility or exclusion (in regards to relevant evidence) will usually be due to…

Answer 27

Lack of reliability
Fairness
Public interest
Or combination of those factors

Therefore relevance is necessary but not a sufficient condition

Question 28

Inadmissibility or exclusion (in regards to relevant evidence) will usually be due to…

Answer 28

Lack of reliability
Fairness
Public interest
Or combination of those factors

Therefore relevance is necessary but not a sufficient condition

Question 29

Fairness and general exclusion under S8

Unfairness can cover a variety of situations and is a manner of discretion for the trial judge. It usually arises in two ways:

Answer 29

Evidence may be excluded if it would result in some unfair rejudice in the proceeding.

Evidence obtained in circumstances that would make its admission against the defendant unfair. EG Statement obtained by unfair or improper methods.

Question 30

S8 general exclusion

Answer 30

(1) in any proceeding the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will-
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding

The judge must take into account the right of the defendant to offer an effective defence.

Question 31

S8 Test involves balancing the probative akue of evidence against the risk that it will:

Answer 31

Have an unfairly prejudicial effect on the proceeding s8(1)(a)

Or

Needlessly prolong the proceeding s8(1)(b)

Question 32

Explain what a Voir Dire is (s15 EA06)

Answer 32

A type of 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.

Jury is usually exuded.

Facts determined at a Voir Dire are sometimes referred to as preliminary facts.

Applies to a witnesses to determine admissibility of evidence.

Question 33

A general rule of evidence is that all…

Answer 33

Facts in issue and facts relevant to the issue must be proved by evidence.

Question 34

The general rule is subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such as:

Answer 34

S27 Which controls the use of pre-trial statements of defendants and Co-defendants

S31 Which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case

S32 Which forbids the fact finder from using a criminal defendants pre trial silence as evidence of guilt