Short Answers 1 Flashcards
What are the two exceptions to the burden of proof being on the prosecution?
- Where the defence of insanity is claimed
- Specific statutory exceptions exist
- The offence is a public welfare regulatory offence
- Describe 4 matters which the judge may consider in determining whether veracity evidence is substantially helpful?
(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.
- Define ‘Circumstantial Evidence’ and ‘Statement’?
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.
- Define “Presumptions of Law” and “Presumption of Fact”?
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.
- Define “Circumstances” s16(1), E.A 2006’ –
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
Explain fairness and the general exclusion under section 8 Evidence Act 2006 and explain two ways it usually arises
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
Probative value what is the test for admissibility
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.
Define what is meant by unavailable witness section 16 (2)
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.
Are all people eligible and compelleable to give evidence
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
List the four rules of evidence
The exclusive rules of evidence deal with: • veracity • propensity • hearsay • opinion • identification • improperly obtained evidence.
Explain the term “Facts that prove the charge
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.
- Why is opinion evidence unreliable (3 Bullet Points)?
(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.
- Describe ‘Privilege’ and give two examples?
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
- Explain the s8 test?
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.
- s25 – OPINION evidence. The opinion must:
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