Short Answers

Question 1

Define the following terms :

Facts in Issue and Witness

Answer 1

The facts in issue are the facts which in law need to be proved to succeed with the case. In criminal case the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.

Facts and issue are those which:

• The prosecution must prove to establish the elements of the offence or
• The Defendant must prove to succeed with defence, in respect of which he or she carries the burden of proof.

Witness:
This is a person who gives evidence and is able to be cross - examined in a proceeding.

Question 2

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

Answer 2

It was held that the prosecution has a duty to prove the prisoners guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with prosecution in relation to all the elements of the offence

Question 3

Explain reasonable doubt/balance of probabilities -

Answer 3

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.

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 the evidence.

Balance of probabilities is the standard of proof required for the prosecution to prove its case, it means that jurors must be satisfied of guilt before they can convict.

Question 4

Define hostile witness

Answer 4

Hostile witness is defined in section 4 of the evidence act 2006, 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 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 5

Define leading question and what is the general rule in relation to leading questions?

Answer 5

The evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4)

The general rule is that a leading question may not be asked during evidence in chief or re examination (s89)

There is no comprehensive test for whether a question is leading, but examples include questions that seek a “yes or no” answer.

Question 6

When are leading questions permitted?

Answer 6

89 leading Questions in examination in chief and re examination

(1) 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.

(2) Subsection (1) does not prevent a judge if permitted by rules of court from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.

Question 7

Explain a voir dire?

Answer 7

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 commonly refereed to as 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 refereed to as preliminary facts.

Question 8

Describe privilege and list four categories of privilege?

Answer 8

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.

Communications with legal advisers Section 54
Solicitors trust accounts section 55
Preparatory Materials for proceedings section 56
Settlement negotiations or meditations section 57
Communications with ministers of religion section 58
information obtained by medical practitioners and clinical psychologists section 59

Question 9

Judges role in trial by jury

Answer 9

When a judge is presiding over a trail by jury, he or she must:

Decide all questions concerning the admissibility of the 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 10

Can a witness refresh their memory in court - explain

Answer 10

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

Section 90 (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 11

What is ‘Presumption of fact’ and give an example

Answer 11

Presumption of fact are those that the mind naturally and logically draws from the given facts. For example one presumes that a person has guilty knowledge if they have possession of recently stolen property.

Question 12

Purpose of evidence law - give four examples

Answer 12

Section 6 Evidence Act 2006 Purpose
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 recognise 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 13

Define hearsay statement -

Answer 13

A statement that -

(a) was made by a person other than a witness and
(b) is offered in evidence at the proceedings to prove the truth of its contents

Question 14

Define expert witness

Answer 14

Section 4 of the Act defines an “expert” as a “person who has specialized knowledge or skill based on training, study or experience”. The judge must determine whether the expert witness is properly qualified to testify.

Question 15

What are the two exceptions to the general prohibition n previous consistent statement (section 35 of the evidence Act 2006)

Answer 15

(2) 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 16

Section 40 (1) propensity - What does propensity evidence mean? and what does it exclude 40 (1) (b)

Answer 16

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence -
(a) means evidence that tends to show a person’s 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 an act or omission that is –
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question

Question 17

Explain the Section 8 test

Answer 17

The section 8 test involves balancing the probative value of evidence against the risk it will:

have an unfairly prejudicial effect on the proceeding (SB (a) (a) or
needlessly prolong the proceeding (s8 (1) (b)

Evidence will be admitted under section 8 if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding or if it is strong enough to justify a prolonging of the proceeding.

Question 18

Explain section 125 (1) Does a judge have to give a warning

Answer 18

Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults. Thus it prohibits:
• the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
• any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.

Question 19

List examples of unacceptable questions

Answer 19

85 Unacceptable questions
(1) In any proceeding, the Judge may disallow, or direct that a 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 20

What is the purpose of Cross Examination

Answer 20

There are two purposes of cross-examination:
• 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 (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).

Question 21

Section 122 (2) types of evidence that may be unreliable list four

Answer 21

(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

Question 22

Define Statement

Answer 22

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 23

List and describe two alternative ways of giving evidence

Answer 23

In the court room but unable to see the defendant or other person
Or by video recording made before the hearing
Evidence may be given in the following ways
- the ordinary way
the alternative way such as by video link.

Question 24

Two cases where evidence is excluded about prejudicial and relevant evidence

Answer 24

7 Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.

Question 25

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

Answer 25

There are some exceptions to the general principle of burden of proof, which means that in some cases it reverses and falls on the defendant including where,

The accused wishes to rely on the defence of insanity

Specific statutory exceptions exist

Question 26

Explain the two prongs of relevance (materiality and probativeness)

Answer 26

Two prongs of relevance can be broken down into two prongs:

Materiality asks whether the evidence in the case is offered on a matter or a a fact at issue (of consequence to the determination of the proceeding section 7 (3)

probativeness asks whether the evidence has a logical “tendency to prove or disapprove” the material proposition on which it is offered section 7 (3)

Question 27

Describe two matters which the judge may consider in determining whether veracity evidence is substantially helpful.

Answer 27

(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.

Question 28

Define Circumstantial evidence

Answer 28

This is 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 (e.g the defendant was seen in the vicinity of the scene of the crime)

Question 29

Define presumption of law

Answer 29

Presumptions of law are inferences that have been expressly drawn by law from particular facts.
Presumptions of law may be either conclusive or rebuttable.
For example, a conclusive and irrebuttable presumption would be that a child under ten years of age is unable to be convicted (Crimes Act 1961, section 21(1)). These are, in effect, rules of substantive law as they refer to the substance of the law rather than the procedure contained in the law. A rebuttable presumption would be that all defendants are innocent until proven guilty.

Question 30

Define Circumstances - Section 16 (1)

Answer 30

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 31

Why is opinion evidence unreliable

Answer 31

The justifications for the rule include that:
• 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 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 32

In order for opinion evidence to comply with section 25, the opinion must

Answer 32

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 33

Explain 3 reasons why leading questions are not permitted

Answer 33

• 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 34

What are four reasons that evidence in rebuttal can be recalled.

Answer 34

• 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 35

If a witness has memory loss citing legislation can the witness be called hostile

Answer 35

Witnesses who simply fail to come up to brief may be unfavourable to the party calling them, but they are not necessarily hostile.
This indicates that the simple fact that a witness gives evidence adverse to a party, suffers a loss of memory, or provides evidence inconsistent with another statement does not, by itself, justify finding the witness is hostile.

Question 36

Explain to an 11 year olds parents what the judge will expect of them in terms of oath and affirmation

Answer 36

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s 77). 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 37

Define corroboration and list two offense which corroboration is required by the prosecution

Answer 37

121 Corroboration

(1) 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 (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).

“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 defendant in the crime charged.

Question 38

What are four principles of admissibility

Answer 38

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the Evidence Act 2006:
• relevance
• reliability
• unfairness
Public interest

Question 39

What was found in R V WANHALLA

Answer 39

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the Evidence Act 2006:
• relevance
• reliability
• unfairness

Question 40

Explain the term “Facts that prove the charge”

Answer 40

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 41

List four exclusive rules of evidence

Answer 41

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

Question 42

Are all people eligible and compelleable to give evidence

Answer 42

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 43

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

Answer 43

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 44

Probative value what is the test for admissibility

Answer 44

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 45

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

Answer 45

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.