Short Answers Flashcards
Define the following terms: Facts in Issue and Witness
Facts in issue are the facts which in law need to be proved to succeed with the case. In criminal cases, the facts in issue are usually those alleged by the charging document and denied by a plea of not guilty.
- 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 is a person who gives evidence and is able to be cross-examined in a proceeding.
What did the case Woolmington V DPP establish in relation to the presumption of innocence?
It was held that the prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and any statutory exception. The burden of proof lies clearly with the prosecution in relation to all elements of the offence.
Explain reasonable doubt/balance of probabilities.
The crown must prove that the accused is guilty beyond reasonable doubt which is a very high standard of proof.
- Reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after careful consideration of all evidence.
- Balance of probabilities is the standard of proof required for the prosecution to prove its case, meaning jurors must be satisfied of guilt before convicting.
Define hostile witness.
A hostile witness is defined in section 4 of the Evidence Act 2006 as a witness who:
- Exhibits a lack of veracity when giving evidence unfavourable to the party who called them
- Gives evidence inconsistent to a previous statement
- Refuses to answer questions and deliberately withholds evidence.
Define leading question and what is the general rule in relation to leading questions?
A leading question is defined by the Evidence Act 2006 as one that directly or indirectly suggests a particular answer to a question like - ‘yes or no’.
The general rule is that leading questions may not be asked during evidence in chief or re-examination.
When are leading questions permitted?
Leading questions may be permitted in examination in chief or re-examination if they relate to introductory or undisputed matters, are consented to by all parties, or allowed by the judge’s discretion.
Explain a voir dire.
A voir dire is governed by section 15 of the Evidence Act 2006, where evidence is given by a witness to prove facts necessary for deciding whether other evidence is admissible. It is often held with the Jury excluded from the court room.
Describe privilege and list four categories of privilege.
Privilege is the right to refuse or disclose evidence that would otherwise be admissible.
Categories include:
- Communications with legal advisers
- Solicitors trust accounts
- Preparatory materials for proceedings
- Communications with ministers of religion
- Information recieved from Medical practiotioner or Clinical psychologists.
Judges role in trial by jury.
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.
Can a witness refresh their memory in court - explain.
A witness may consult a document while giving evidence if they obtain the judge’s leave, show the document to all parties, and the document was made while their memory was fresh.
What is ‘Presumption of fact’ and give an example.
Presumption of fact are those that the mind naturally and logically draws from given facts. For example, one presumes a person has guilty knowledge if they possess recently stolen property.
Purpose of evidence law - give four examples.
The purpose of evidence law includes securing just determinations by providing logical rules, recognizing rights affirmed by the New Zealand Bill of Rights Act, promoting fairness, and protecting confidentiality.
Define hearsay statement.
A hearsay statement is one made by a person other than a witness, and is offered in evidence at the proceeding to prove the truth of its contents.
Define expert witness.
An expert witness is defined as a person with specialised knowledge or skill based on training, study, or experience, and the judge must determine their qualifications to testify.
What are the two exceptions to the general prohibition on previous consistent statements?
A previous statement of a witness that is consistent with their evidence is admissible if necessary to respond to a challenge to the witness’s veracity or accuracy.
Section 40 (1) propensity - What does propensity evidence mean?
Propensity evidence
(a) means evidence that shows a person’s tendency to act in a particular way or 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
Explain the Section 8 test.
The section 8 test balances the probative value of evidence against the risk it will
Have an unfairly prejudicial effect on the proceeding
or needlessly prolong the proceeding.
Explain section 125 (1) Does a judge have to give a warning?
Section 125 states that evidence given by children should be treated like that of adults, prohibiting warnings about corroboration that wouldn’t be given for adult complainants.
List examples of unacceptable questions.
The judge may disallow questions that are improper, unfair, misleading, needlessly repetitive, or too complicated for the witness to understand.
What is the purpose of Cross Examination?
The purposes of cross-examination are to elicit information supporting the case of the cross-examining party and to challenge the accuracy of the testimony given in evidence-in-chief.
Section 122 (2) types of evidence that may be unreliable list four.
The judge must consider giving a warning for hearsay evidence, statements by the defendant that are the only evidence implicating them, evidence from a witness with a motive to lie, and statements made by the defendant to another person whilst they’re detained.
Define Statement.
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.
List and describe two alternative ways of giving evidence.
Ordinary Way - Evidence may be given orally in the courtroom or in another where they’re unable to see the defendant
Alternative Way - Video link or via video recording made before the hearing.
Two cases where evidence is excluded about prejudicial and relevant evidence.
All relevant evidence is admissible except that which is inadmissible under this Act or any other Act or excluded under this Act or any other Act
What are two exceptions to the burden of proof being on prosecution?
Exceptions include when the accused relies on the defence of insanity or specific statutory exceptions.
Explain the two prongs of relevance (materiality and probativeness).
Materiality asks if the evidence is offered on a matter or a fact at issue
Probativeness asks if the evidence logically tends to prove or disprove the material proposition.
Describe two matters which the judge may consider in determining whether veracity evidence is substantially helpful.
The judge may consider a lack of veracity on the person when under legal obligation to tell the truth, or previous inconsistent statements made by the person.
The person also could have been convicted of 1 or more offences that indicate a propensity for dishonesty.
Define Circumstantial evidence.
Circumstantial evidence is evidence of circumstances that do not directly prove a fact in issue, but which allow inferences about the existence of facts to be drawn. (e.g the defendant was seen in the vicinity of the scene of the crime)
Define presumption of law.
Presumptions of law are inferences drawn by law from particular facts, which may be 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.
Define Circumstances - Section 16 (1).
Circumstances in relation to a statement by a person who is not a witness, include,
- the nature of the statement
- the contents of the statement
- the circumstances that relate to the making of the statement
- the veracity and accuracy of the observation.
Why is opinion evidence unreliable?
- A witness offering opinion evidence holds little probative weight
- There is danger that a witness offering opinion evidence will confuse the tribunal of facts,
- Witnesses opinion could be based on inadmissible evidence.
In order for opinion evidence to comply with section 25, the opinion must.
The opinion must be that of an expert, comprise expert evidence, and offer substantial help to the fact finder.
Explain 3 reasons why leading questions are not permitted.
- There is a natural tendency for people to agree with suggestions put to them by saying ‘yes’.
- Counsel can more easily elicit desired answers from their witness, reducing spontaneity and genuineness of testimony.
- There is a danger of manipulation or construction of evidence through collusion between counsel and the witness.
What are four reasons that evidence in rebuttal can be recalled?
- 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.
- Was not available or admissible before the prosecution’s case was closed.
- Is required to be admitted in the interests of justice for any other reason.
If a witness has memory loss, can the witness be called hostile?
Witnesses who fail to come up to brief may be unfavourable but are not necessarily hostile. Adverse evidence or loss of memory does not justify finding the witness is hostile.
What will the judge expect of an 11 year old’s parents in terms of oath and affirmation?
Witnesses 12 years or older must take an oath or affirmation. Witnesses under 12 must be informed by the judge of the importance of telling the truth and not telling lies. After being given that information they must make a promise to tell the truth before giving evidence.
Define corroboration and list two offenses for which it is required by the prosecution.
Corroboration is independent evidence that tends to confirm or support some fact implicating the defendant in the crime charged. It is required for the offences of perjury, treason and false oaths.
What are four principles of admissibility?
- Relevance.
- Reliability.
- Unfairness.
- Public interest.
What was found in R V WANHALLA?
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.
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.
List four exclusive rules of evidence.
The exclusive rules of evidence deal with:
- veracity
- propensity
- hearsay
- opinion
- identification
- improperly obtained evidence.
Are all people eligible and compellable to give evidence?
A witness is eligible if lawfully able to give evidence and compellable if required to give evidence. Once sworn, they must answer all questions put to them.
Define what is meant by unavailable witness section 16 (2).
A person is unavailable as a witness 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 be identified or found; or
(e) is not compellable to give evidence.
What is the test for admissibility regarding probative value?
The test under s 43 is whether the evidence has probative value that outweighs the risk of unfairly prejudicial effect on the defendant.
Explain fairness and the general exclusion under section 8 Evidence Act 2006.
Even relevant evidence may be excluded if it results in unfairness, which can arise from unfair prejudice in the proceeding or from improper methods of obtaining evidence.
What are the two exceptions to the burden of proof being on the prosecution?
Where the defence of insanity is claimed and 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 on 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.
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.
List 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.
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)).
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.
Three (3) reasons why s85, EA 06 ‘Leading Q’s’ are not permitted.
(1) There is a natural tendency for people to agree with suggestions put to them.
(2) Counsel asking leading questions can more easily elicit the answers which they wish to receive.
(3) There is a danger that leading Q’s will result in the manipulation or construction of the evidence by counsel and a witness
What are the four (4) reasons that evidence in rebuttal can be recalled?
(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.
(4) Relate to a purely formal matter.
What are five (5) types of “Unacceptable” questions?
Misleading, Improper, Needlessly repetitive, Unfair, Expressed in a language too complicated for the witness to understand.
Define corroboration & list two (2) offences which corroboration is required by the prosecution?
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.
Explain to an 11 year olds parents what the judge will expect of the 11 year old in relation to Oath & Affirmation.
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.
Explain two (2) ways of GIVING EVIDENCE
ORDINARY WAY – either orally in a courtroom in the presence of a judge or in an affidavit filed in court.
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.
What is the purpose 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.
What are the four (4) principles of admissibility?
Public interest, Unfairness, Relevance, Reliability.
What was found in R v WANHALLA in relation to reasonable doubt?
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.
If a witness has memory loss, citing legislation can they be called hostile?
A hostile witness means the witness (s4, EA 2006) refuses to answer questions or deliberately withholds evidence. The fact that a witness suffers from memory loss does not, by itself justify finding the witness hostile.
Before a person is served with a summons to appear in court, verification must be made as to:
- Whether they are allowed to give evidence
- Whether they are required to give evidence
- Whether they can refuse to give evidence, and
- What type of witness they will be
