Short Answers

Question 1

1. Definition of Relevance and Facts in Issue? Pg 7

Answer 1

Evidence is relevant “If it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (S7(3) of the Evidence Act 2006).

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 he or she carries the burden of proof

Question 2

Giving evidence may be given in what ways? Pg 8

Answer 2

• In the ordinary way - either orally in a courtroom in the presence of a judge, jury, parties to the proceeding, counsel, and members of the public allowed by the judge.
• In an alternative way - in the courtroom but unable to see the defendant or other person outside the courtroom or by video recording made before the hearing.
• In any other way - provided for by the Evidence Act 2006 or any other relevant enactment.

Question 3

Definition of Hearsay statement, Veracity, Propensity, Direct Evidence and Circumstantial Evidence? Pg 9

Answer 3

Hearsay statement - This is a statement that was made by a person other than the a witness and is offered in evidence int he proceeding to prove the truth of its contents.

Veracity - This is the disposition of a person to refrain from lying, whether generally or in a proceeding.

Propensity - 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.

Direct Evidence - This is any evidence given by a witness as to a fact in issue that he or she has seen heard or otherwise experienced.

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

Question 4

Woolmington Principle: Presumption of innocence? Pg 10

Answer 4

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.

Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence. It is not a burden of proof.

Question 5

The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. What are the exceptions to this rule?

Pg 12

Answer 5

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 the defence of insanity is claimed
• Where the offence is a public welfare regulatory offence

Question 6

Beyond Reasonable Doubt? Pg 13

Answer 6

The courts have traditionally been reluctant to provide any detailed or precise meaning of ‘Beyond Reasonable Doubt’ the stance of the Court of Appeal being that ‘reasonable doubt’ means what it says’.

Question 7

Miller v Minister of pensions - Balance of Probabilities Pg 14

Answer 7

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.

Question 8

Purpose of Evidence Law? Pg 17

Answer 8

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 recognize the importance of the rights affirmed by the New Zealand Bill of Rights Act 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 9

Judicial Notice? Pg 19

Answer 9

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.

Question 10

5. What are presumptions of Law?

What are presumptions of fact? Pg 20

Answer 10

(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 11

Court Refers to four principles Pg 21

Answer 11

• Relevance
• Reliability
• Unfairness
• Public Interest

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. Pg 22

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

Fairness and the general - General exclusion provision Pg 23

Answer 13

• 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 accused unfair.

The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods.

Question 14

Voir Dire Pg 24

Answer 14

Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Such a hearing is called a Voir Dire particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as preliminary facts.

Question 15

Introduction Pg 29

Answer 15

Most of the laws of evidence concern the things that cannot be given in evidence. By and large, they are based on common sense. 
The exclusive rules of evidence deal with: 
•  Veracity 
• Propensity 
• Hearsay
• Opinion 
• Identification 
• Improperly obtained evidence

Question 16

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. Pg 30

Answer 16

• 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 17

In deciding whether to give permission for the Defendant’s veracity Pg 32

Answer 17

The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if

a. The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue;and
b. the Judge permits the prosecution to do so.

Question 18

Propensity Pg 33

Answer 18

In this section and sections 41 to 43, propensity evidence -
a. means evidence that tends to show a persons 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 n act or omission that is -
• 1 of the elements of the offence for which the person is being tried or
• the cause of action in the proceeding in question.

Question 19

Hearsay Pg 38

Answer 19

Under the Act a hearsay statement is defined as S4:
a statement that:
• was made by a person other than a witness and
• is offered in evidence at the proceeding to prove the truth of its contents.

Statement means S4
• a spoken or written assertion by a person of any matter, or
• non verbal conduct of a person that is intended by that person as an assertion of any matter.

Question 20

Evidence Act defines circumstances as? Pg 40

Answer 20

Section 16 (1) 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 21

Unavailable as a witness Section 16 (2) Pg 41

Answer 21

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 22

Rule against opinion evidence Pg 44

Answer 22

• Where a witness offers a bare opinion it holds little probative weight
• 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 facts and prolong proceedings
• A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissable (for example, where an opinion is based largely on propensity evidence).

Question 23

General admissibility of opinions pg 45

Answer 23

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact finder to understand, what the witness saw, heard or otherwise perceived.

Question 24

Expert Opinion Evidence Pg 46

Answer 24

If the evidence is opinion evidence, then in order to comply with S25 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 25

Qualification as an expert Pg 47

Answer 25

An expert is person who has specialized knowledge or skill based on training, study or experience.
The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed expert in the field in question; the expert may be qualified through formal study and training, from experience or both. Evidence offered by an expert should be withing his or her area of expertise.

Question 26

All people are eligible and compellable Pg 54

Answer 26

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.

Question 27

Privileges explained Pg 57

Answer 27

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.
A number of privileges are outlined in the Evidence Act 2006 including privilege for
• Communications with legal advisors
• Solicitors trust accoungts
• Preparatory materials for proceedings
• Settlement negotiations or mediation
• Communications with ministers of religion
• Information obtained by medical practitioners and clinical psychologists
• Privilege against self incrimination
• Informer privilege

Question 28

Information obtained Pg 62

Answer 28

??

Question 29

Corroboration (a-d) Pg 70

Answer 29

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 and
b. false oaths
c. false statements or declarations and
d. treason

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 accused in the crime charged.

Question 30

Judges role in trial by jury Pg 75

Answer 30

When a Judge is presiding over a trial by jury, he or she must:
• 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

Oaths and affirmations Pg 77

Answer 31

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence S77. 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 32

The prohibition on leading questions Pg 81

Answer 32

The Evidence Act 2006 defines a leading question as one that directly or indirectly suggest a particular answer to the question.
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:
• There is 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 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 witness.

Question 33

When leading questions are permitted Pg 82

Answer 33

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 34

Refreshing memory in court Pg 83

Answer 34

If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document must be satisfied:
• the leave of the judge must be obtained
• the document must be shown to every other party in the proceeding
• S90(5) requires the document to have been made or adopted by a witness at a time when his or her memory was fresh. Whether a document was made while the memory was fresh depends on the circumstances of the individual case.

Question 35

Previous consistent statements rule Pg 85

Answer 35

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 36

Hostile witnesses Pg 86

Answer 36

This may include:
• Asking leading questions
• Asking questions designed to probe the accuracy of memory and perception
• Asking questions as to prior inconsistency statements and
• Other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is substantially helpful in assessing the witness’s veracity).

Question 37

Hostile witness is defined as Pg 87

Answer 37

In relation to a witness, means the witness:
• 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 or
• refuses to answer questions or deliberately withholds evidence (This does not include a complete refusal to give evidence as such a person would not be a witness).

Question 38

Purposes of Cross Examination Pg 88

Answer 38

There are two purposes of cross examination

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 ( for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).

Question 39

Unacceptable Questions Pg 89

Answer 39

In any proceeding, the Judge may disallow, or direct that witness is not obliged to answer any question that the Judge considers improper, unfair, misleading, needlessly, repetitive or expressed in language that is too complicated for the witness to understand.

Question 40

Evidence in Rebuttal Pg 92

Answer 40

Evidence called by either party after the completion of their own case in order to rebut something arising during the trial can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence;
• relates to a purely formal matter
• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
• was not available or admissible before the prosecution’s case was closed or
• is required to be admitted in the interests of justice for any other reason.

Question 41

Judicial Warnings Pg 93

Answer 41

• judicial warning that evidence may be unreliable
• judicial directions about certain ways of giving evidence
• judicial warnings about lies
• judicial directions about children’s evidence
• judicial warnings about identification evidence
• delayed complaints or failure to complain in sexual cases
Judges warnings for children Section 125

Question 42

s125 Judicial directions about children’s evidence

Answer 42

(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 a warning had the complainant been an adult.

(2) In a proceeding tried with a jury in which a witness is a child, the Judge must not, unless expert evidence is given in that proceeding supporting the giving of the following direction or the making of the following comment:
(a) instruct the jury that there is a need to scrutinise the evidence of children generally with special care; or
(b) suggest to the jury that children generally have tendencies to invent or distort.

(3)This section does not affect any other power of the Judge to warn or inform the jury about children’s evidence exercised in accordance with the requirements of regulations made under section 201.

Question 43

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

Answer 43

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 44

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

Answer 44

• 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 45

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

Answer 45

• Relevance
• Reliability
• Unfairness
• Public Interest

Question 46

(a) What is a leading question?

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

Answer 46

(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 47

Briefly explain what a “voir dire” is

Answer 47

• 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 48

Define the following terms:

(a) Witness

(b) facts in issue

Answer 48

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

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 49

Explain what is meant by “burden of proof”

Burden of proof means:

Answer 49

• 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 50

What does “propensity evidence” mean?

Answer 50

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 51

List four categories of privilege

Answer 51

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

Question 52

What is the definition of a hearsay statement?

Answer 52

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 53

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

Answer 53

(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 54

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 54

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 55

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 55

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 56

A - Describe what privilege is in relation to the giving of evidence
B – Name two privileges outlined in the Evidence Act 2006

Answer 56

(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 57

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 57

• 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 58

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

Answer 58

• 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 59

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

Answer 59

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 60

What is a leading question?

Give two exceptions to the general rule concerning leading questions

Answer 60

(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 61

Define the following terms:

a. Direct evidence

b. Admissible evidence

Answer 61

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 62

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

Answer 62

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 63

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 63

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 64

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

Answer 64

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 65

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 65

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

Question 66

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 66

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 67

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

Answer 67

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 68

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

Answer 68

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.