Short Answers 1

Question 1

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

Answer 1

• Where the defence of insanity is claimed
• Specific statutory exceptions exist
• The offence is a public welfare regulatory offence

Question 2

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 or the part of the person
(e) A motive on the part of the person to be untruthful.

Question 3

3. Define ‘Circumstantial Evidence’ and ‘Statement’?

Answer 3

Circumstantial evidence -

This 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

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

5. Define “Circumstances” 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

Question 6

Explain fairness and the general exclusion under section 8 Evidence Act 2006 and explain two ways it usually arises

Answer 6

Even though evidence is relevant, it may be excluded if it would result in unfairness. Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:
• 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

Question 7

Probative value what is the test for admissibility

Answer 7

The test for admissibility under s 43 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 an unfairly prejudicial effect on the defendant.

Question 8

Define what is meant by unavailable witness section 16 (2)

Answer 8

Section 16(2) defines what is meant by “unavailable as a witness”:

(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 New Zealand and 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 9

Are all people eligible and compelleable to give evidence

Answer 9

A witness is eligible if they are lawfully able to give evidence on behalf of both 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 questions put to them. Section 71 provides that:
71 Eligibility and compellability generally
(1) In a civil or criminal proceeding, -
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.
(2) Subsection (1) is subject to sections 72 to 75

Question 10

List the four rules of evidence

Answer 10

The exclusive rules of evidence deal with:
• veracity
• propensity
• hearsay
• opinion
• identification
• improperly obtained evidence.

Question 11

Explain the term “Facts that prove the charge

Answer 11

Good evidence establishes what you are trying to prove. The facts must prove the elements of the charge. In each case 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 12

6. Why is opinion evidence unreliable (3 Bullet Points)?

Answer 12

(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 is stated expressly would be inadmissible.

Question 13

7. Describe ‘Privilege’ and give two examples?

Answer 13

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 14

8. Explain the s8 test?

Answer 14

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)).

Section 8 is meant to help the judge manage the length of the trial and the fairness of the proceedings.

Evidence will be admitted under section 8 if it’s probation value outweighs the risk of having an unfairly prejudicial effect on the proceedings or it is strong enough to justify a prolonging of the proceeding.

Question 15

9. s25 – OPINION evidence. The opinion must:

Answer 15

The opinion must:
• 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 16

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

Answer 16

(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 17

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

Answer 17

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

Question 18

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

Answer 18

Misleading
Improper
Needlessly repetitive
Unfair
Expressed in a language too complicated for the witness to understand

Question 19

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

Answer 19

Corroboration – Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.

(1) s108 – Perjury
(2) s73 – Treason

Question 20

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 20

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 21

15. Explain two (2) ways of GIVING EVIDENCE –

Answer 21

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 22

16. What is the purpose of cross examination?

Answer 22

(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 23

18. What are the four (4) principles of admissibility?

Answer 23

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

Question 24

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

Answer 24

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 25

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

Answer 25

A hostile witness means the witness (s4, EA 2006)

• Refuses to answer questions or deliberately withholds evidence or
• Exhibits or appears to exhibit a lack of veracity when giving evidence unfavorable 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;

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.