Short Answers

Question 1

What did the case Woolmington v DDP 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

Briefly explain what a “voir dire”is

Answer 2

A voir dire is :
A hearing where evidence is given by 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 3

Define the following:
witness

Answer 3

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

Question 4

Define the following:
Facts in issue

Answer 4

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 a burden of proof.

Question 5

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

Answer 5

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 6

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

Answer 6

Relevance
Reliability
Unfairness
Public interest

Question 7

(a) What is a leading question?

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

Answer 7

(a) - a leading question is 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 8

Explain what is meant by “burden of proof”

Answer 8

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 than the accused person prove their innocence. All the 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 reasonable doubt

Question 9

What does propensity evidence mean?

Answer 9

Is evidence about a persons 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 10

List four categories of privilege

Answer 10

Privilege against self-incrimination

Marital privilege

Professional confidences

Public policy

Police informants

Question 11

What is the definition of a hearsay statement?

Answer 11

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 12

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

Answer 12

There are exceptions to the general principle, which means that in some cases the burden of proof reverses and falls on the defendants:

Where there exists specific statutory exceptions

Where section 67(8) of the Summary Proceedings Act 1957 applies

Question 13

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

Answer 13

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 14

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 matters:

Answer 14

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 inconsistent statements made by the person

Bias on the part of the person

A motive on the part of the person to be untruthful

Question 15

Define circumstantial evidence

Answer 15

Circumstantial evidence is a fact that by inference can prove another fact in issue

Question 16

Define statement

Answer 16

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 17

What are presumptions of law?

Answer 17

Presumptions of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable.

Question 18

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 18

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

The nature of the statement, and

The contents of the statement, and

The circumstances that relate to the making of the statement, and

Any circumstances that relate to the veracity of the person, and

Any circumstances that relate to the accuracy of the observation of the person

Question 19

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 19

Justification 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’ evidence of opinion may be based on the other evidence which, if stated expressly, would be inadmissible - for example where an opinion is based largely on propensity evidence.

Question 20

Describe what privilege is in relation to giving evidence:

Answer 20

Is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.

Question 21

Name two privileges outlined in Evidence Act 2006:

Answer 21

Any of the following two -

Privilege for communications with legal advisors - s54

Privilege for 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 22

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 22

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 23

List four of the functions of the judges role in a trial by jury:

Answer 23

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 24

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

Answer 24

The rationale of the rule against hearsay lies in the lack of reliability f 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 25

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

Answer 25

A leading question suggests the desired answer or assumes that disputed facts exist

Any of the two following:
Introductory or disputed facts
Identification
Assisting memory
Contradiction
Hostile witnesses

Question 26

Define the following terms:
Direct evidence

Admissible evidence

Answer 26

Direct evidence - any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.

Admissible evidence - evidence is admissible if it is legally able to be received by a court

Question 27

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

Answer 27

A person is unavailable is the person is -

Dead, or

Outside of New Zealand and is not reasonably practicable for him or her to be a witness, or

Is unfit to be a witness because of age or physical or mental condition, or

Cannot with reasonable diligence be identified or found, or

Is not compellable to give evidence

Question 28

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 28

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 29

What are the two exceptions to the general prohibition on previous consistent statement (s35 of Evidence Act 2006)

Answer 29

A previous statement of a witness that is consistent with the witness’ evidence, is admissible to the extent that the statement is necessary:

To respond to a challenge to the witness’ veracity or accuracy, based on a previous inconsistent statement of the witness, or

On a claim of a recent invention on the part of the witness

Question 30

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 30

Perjury and related offences (s108,110 and 111 of CA1961), and treason (s73 CA1961)

Question 31

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 31

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 32

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

Answer 32

The evidence relates directly or indirectly to the sexual experience of the complainant with any other person other than the defendant

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

Question 33

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

Answer 33

Asked leading questions

Challenge 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 34

In a proceeding, evidence may be given in the following ways?

Answer 34

The ordinary way

The alternative way such as by video link

Any other ear provided for by the Evidence Act 2006 or any other enactment

Question 35

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

Answer 35

Defence of insanity

Possess an offensive weapon in circumstances that prima facie show an intention to use it.

Question 36

Define both Presumption of law and Presumption of fact?

Answer 36

Presumptions of law are inferences that have been expressly drawn by law from particular facts.

Presumptions of fact are those that the mind naturally and logically draws from given facts.

Question 37

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

Answer 37

Is dead; or

Is outside of New Zealand and it is not reasonably practicable for him or her to be a witness, or

Is unfit to be a witness because of age or physical or mental condition, or

Cannot with reasonable diligence be identified or found, or

Is not compellable to give evidence

Question 38

What are four types of questions that a judge can stage are unacceptable?

Answer 38

Improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.

Question 39

Define corroboration and list two offences which corroboration is required by the prosecution?

Answer 39

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

Perjury, false oaths, false statements or declarations and treason.

Question 40

What are two ways of giving evidence in Court?

Answer 40

Ordinary way - orally in court or written affidavit for court

Alternative way - behind screen, video link or video previously made

Question 41

What is the purpose of cross examination?

Answer 41

To elicit information supporting the case of the party conducting the cross examination

To challenge the accuracy of the testimony given in evidence-in-chief

Question 42

The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons -

Answer 42

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 43

What is judicial notice?

Answer 43

When the court takes notice of a fact, it declares that it will find the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

Question 44

Who is not compellable to give evidence?

Answer 44

Under s74, judges, in respect of their conduct as a judge, the Sovereign, Governor-general, and Sovereign or Head of state of a foreign country, are not compellable to give evidence.

Question 45

What are two ways in which unfairness usually arises and may result in the exclusion of evidence?

Answer 45

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 defendants 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 46

What is Miller v Minister of pensions - Balance of probabilities

Answer 46

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 47

General admissibility of opinions in evidence?

Answer 47

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 a witness saw, heard or otherwise perceived.

Question 48

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?

Answer 48

The leave of 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 49

The prosecution in a criminal proceeding may only offer evidence about a defendant’s veracity, IF?

Answer 49

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

The Judge permits the prosecution to do so.

Question 50

Explain what “all people are eligible and compellable” means

Answer 50

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 compellable obligations to answer all questions put to them.

Question 51

S16 of Evidence Act defines “circumstances” in relation to a statement by a person who is not a witness, includes?

Answer 51

The nature of the statement

The contents of the statement

The circumstances that relate to the making of the statement

Any circumstances that relate to the veracity of the person

Any circumstances that relate to the accuracy of the observations of the person

Question 52

When giving evidence, Witnesses who are under 12 years old must?

Answer 52

Be informed by the judge of the importance of telling the truth and not telling lies

After being given the information, make a promise to tell the truth before giving evidence.