Short Answer Qs

Question 1

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

Answer 1

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 the prosecution in relation to all of the elements of the offence

Question 2

Define a hostile witness pursuant to Section 4 of the Evidence Act 2006

Answer 2

• 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 3

What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?

Answer 3

• Relevance
• Reliability
• Unfairness
• Public Interest

Question 4

(a) What is a leading question?

(b) What is the general rule in relation to leading questions?

Answer 4

(a) a leading question as one that directly or indirectly suggests a particular answer to the question
(b) The general rule is that leading questions may not be asked during examination-in-chief or re-examination

Question 5

Briefly explain what a “voir dire” is

Answer 5

A voir dire is:
* 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.
* It is conducted without a jury being present.

Question 6

6. Define the following terms:
   (a) Witness
   (b) facts in issue

Answer 6

(a) Witness: This is a person who gives evidence and is able to be cross-examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence, and may also include a person who has previously given evidence in the proceeding. For a limited number of provisions in the Evidence Act 2006

(b) 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.

Question 7

Explain what is meant by “burden of proof”

Answer 7

Burden of proof means:
* Whoever asserts something must prove it
* In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt.
* In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.

Question 8

What does “propensity evidence” mean?

Answer 8

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 is alleged to have been involved.

Question 9

List four categories of privilege

Answer 9

• Privilege against self-incrimination
• Marital privilege
• Professional confidences
• Public policy
• Police informants

Question 10

What is the definition of a hearsay statement?

Answer 10

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 11

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?

Answer 11

There are exception to the general principle, which means that in some cases the burden of proof reverses and falls on the defendants:
* Where there exist specific statutory exceptions
* Where section 67(8) of the Summary Proceedings Act 1957 applies

Question 12

The fundamental condition for the admissibility of evidence is that it must be relevant. What is the two prong test of relevance? Describe each prong.

Answer 12

Materiality and probativeness
* Materiality asks whether the evidence is offered on a matter of fact at issue in the case (of consequence to the determination of the proceeding – s7(3))
* Probativeness asks whether the evidence has a logical “tendency to prove or disprove” the material proposition on which it is offered (s7(3))

Question 13

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.

Answer 13

• 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

Question 14

Define the following terms:
(a) Circumstantial evidence
(b) Statement

Answer 14

(a) Circumstantial evidence is a fact that by inference can prove another fact in issue.
(b) A 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

Question 15

What are presumptions of Law?
What are presumptions of fact

Answer 15

(a) Presumptions of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable
(b) Presumptions of fact are those that the mind naturally and logically draw from the facts given

Question 16

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 2006, circumstances in relation to a statement by a person who is not a witness, include…

Answer 16

Section 16(1) Evidence Act 2006 defines “circumstances”. Circumstances in relation to a statement by a person who is not a witness, include –
(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

Question 17

What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by sections 24 & 25 of the Evidence Act 2006?

Answer 17

Justifications for the rule derive from this rationale:
* Where a witness offers a bare opinion it hold little probative weight
* There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be that the evidence would confuse the tribunal of fact and prolong proceedings
* A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible – for example where an opinion is based largely on propensity evidence.

Question 18

A - Describe what privilege is in relation to the giving of evidence

B – Name two privileges outlined in the Evidence Act 2006

Answer 18

(a) A privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.
(b) 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

Question 19

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?

Answer 19

• 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.

Question 20

List four of the functions of the judge’s role in a trial by jury:

Answer 20

• To decide all questions concerning the admissibility of evidence
• To determine whether there is any evidence that is fit to be submitted to the jury for its consideration
• To explain and enforce the general principles of law that are applicable to the point at issue
• To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Question 21

In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?

Answer 21

The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, because:
* Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
* The rule addresses 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
* The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be a ‘reasonable assurance’ of reliability, which means that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to weight.

Question 22

What is a leading question?
Give two exceptions to the general rule concerning leading questions

Answer 22

(a) A leading question suggests the desired answer or assumes that disputed facts exist
(b) Any two of the following:
* Introductory or disputed facts
* Identification
* Assisting memory
* Contradiction
* Hostile witnesses

Question 23

Define the following terms:
a. Direct evidence
b. Admissible evidence

Answer 23

a. Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.
b. Admissible evidence: evidence is admissible if it is legally able to be received by a court

Question 24

When is a witness deemed to be unavailable as a witness according to Section 16(2) of the Evidence Act 2006?

Answer 24

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 –
a. Is dead, or
b. Is outside New Zealand and 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 25

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?

Answer 25

The duty to cross-examine will therefore arise under the act when four conditions are present:
* The topic of cross-examination must deal with ‘significant matters’ in the proceeding
* The matters must be ‘relevant’ and ‘in issue’ in the proceeding
* 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’.

Question 26

What are the two exceptions to the general prohibition on previous consistent statement (Section 35 of the Evidence Act 2006)?

Answer 26

A previous statement of a witness that is consistent with the witness’s 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 27

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:

Answer 27

there are two types of offence – perjury and related offences (s108, 110 and 111 Crimes Act 1961) and treason (s73 Crimes Act 1961)

Question 28

In relation to non-expert opinion, in order to be admissible under s24, the statement of opinion must fulfil to basic criteria. Name them:

Answer 28

In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
* Opinion must be the only way in which to effectively communicate the information to the finder of fact
* The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 29

Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.

Answer 29

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
* The evidence relates directly or indirectly to his or her reputation in sexual matters.

Question 30

What are two types of questions that can be asked once a witness has been declared hostile?

Answer 30

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.

Question 31

What was held in R v Wanhalla?

Answer 31

The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to stablish his or her innocence.
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.