SHORT ANSWERS

Question 1

Once the judge has granted an application to treat witness as hostile, the witness may be? (L AMP PIS)

Answer 1

• Asked leading questions.
• Tested on such matters as the accuracy of his or her memory or perception.
• Questioned as to prior inconsistent statements

Question 2

What to address the judge as?

Answer 2

Your Honour or Sir/Ma’am

Question 3

List 4 of the functions of the judge’s role in a trial by jury? (DIED)

Answer 3

Decide - to decide all questions concerning the admissibility of evidence Instruct - to instruct the jury on the rules of law by which evidence is to be weighed once it has been submitted. Explain and Enforce - to explain and enforce the general principles of law that are applicable to the point in issue. Determine - to determine whether there is any evidence that is fit to be submitted to the jury for its consideration.

Question 4

When can a judge allow evidence about jury deliberations?

Answer 4

When the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. The judge must weigh up: - The public interest in protecting the confidentiality of jury deliberations generally and; - The public interest in ensuring that justice is done in those proceedings.

Question 5

A witness is eligible to give evidence if?

Answer 5

They are lawfully able to give evidence on behalf of both prosecution and defence.

Question 6

Define hostile witnesses pursuant to section 4 of the Evidence Act 2006.

Answer 6

Means a witness who - - 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 any questions or deliberately withholds evidence.

Question 7

A witness is deemed to be hostile when?

Answer 7

Refuses to answer questions or deliberately withholds information, 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 reasonable 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 8

When a witness has been declared hostile, the prosecutor may conduct the examination-in-chief like a cross examination. What are the 3 types of questions that can be asked once a witness has been declared hostile?

Answer 8

• 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.

Question 9

MC. Before giving evidence in court a witness may refresh their memory from?

Answer 9

Their original statement and their deposition.

Question 10

MC. Eligibility and compellability of a witness in a proceeding is any person who?

Answer 10

Is eligible to give evidence is compellable.

Question 11

MC. A person is unavailable as a witness when?

Answer 11

The person is overseas and can’t be contacted.

Question 12

Section 16 (2) of the Evidence Act 2006 defines what is meant by ‘unavailable as a witness’ according to this section, when is a witness deemed to be unavailable as a witness?

Answer 12

16(2) a. Is dead, or b. Is outside NZ 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 13

S92 (1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. Under what four conditions will the duty to cross-examine a witness arise?

Answer 13

• 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 14

MC. There are 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 or law. Name these offences.

Answer 14

1. Perjury S108 CA61 2. False Oaths S110 CA61 3. False Statements S111 CA61 4. Treason S73 CA61

Question 15

MC. Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offences?

Answer 15

1. Perjury S108 CA61 2. False Oaths S110 CA61 3. False Statements S111 CA61 4. Treason S73 CA61

Question 16

Section 35 (2) - Previous consistent statement rule. (RCWVA & CORI POW)

Answer 16

S32 (2) A previous inconsistent statement of a witness that is consistent with the witnesses evidence is admissible to the extent that the statement is necessary - to respond to a challenge to the witnesses 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 17

MC. In addition to evidence in rebuttal, when can a judge recall a witness who has given evidence, for re-examination?

Answer 17

A judge may recall a witness how has given evidence, where he or she considers that it is in the interests of justice.

Question 18

What is the general rule in relation to leading questions?

Answer 18

Leading questions may not be asked during examination-in-chief or re-examination.

Question 19

When are leading questions allowed in evidence in chief?

Answer 19

When - a) The questions relate to the introductory or undisputed matters; or b) The questions is put with the consent of all other parties; or c) The judge, in exercise of the judge’s discretion, allows the question.

Question 20

Why would the judge exercise his discretion to allow leading questions?

Answer 20

• To direct the witnesses attention to the subject of identification - In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue. - To assist in eliciting the evidence in chief or very young people -Where the witness is hostile.

Question 21

What is the general rule of evidence? And what are the two main exceptions?

Answer 21

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence. Exceptions: - Judicial notice is taken - The facts are formally admitted.

Question 22

There are two main exceptions to the general rule where no evidence is needed to be given of facts, what are these exception?

Answer 22

Judicial notice is taken The facts are formally admitted.

Question 23

The general purpose of the examination-in-chief is to?

Answer 23

Elicit testimony that supports the case of the party calling that witness.

Question 24

MC. When can judicial notice not be taken?

Answer 24

The date of birth of the complainant under 16

Question 25

MC. An oath or affirmation may be taken by a witness over the age of 12 years old involved in a proceeding. For a person under 12 years what advice should be given to them? And once this advice is given, before the person gives evidence, are they required to take an oath/affirmation or make a promise?

Answer 25

A person under 12 years must be informed by the Judge of the importance of telling the truth and not telling lies. After being given that information, the person under 12 must make a promise to tell the truth, before giving evidence.

Question 26

MC. Where an expert is called to give specialised evidence what must he demonstrate to the court?

Answer 26

That he/he has the qualifications to be deemed an expert.

Question 27

MC. What is the definition of a person who is qualified as an expert?

Answer 27

A person who has specialised knowledge or skill based on training, study or experience.

Question 28

What are 4 points in regards to the conduct of an expert witness?

Answer 28

• Must state their qualifications when giving evidence. - Must not give opinion evidence outside their area of expertise - If expert believes that their evidence might be incomplete or inaccurate without some qualification, that qualification must be stated. - Must state explicitly the facts, matters and assumptions on which opinions are expressed.

Question 29

What 4 fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible? (PURR)

Answer 29

Public interest Unfairness Relevance Reliability

Question 30

What is the general rule in relation to ‘establishing facts’?

Answer 30

All facts in issue and facts relevant to the issue must be proved by evidence.

Question 31

What are 2 purposes of cross examination? And examples.

Answer 31

• 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 32

It is not necessary in court to prove uncontroverted facts, these are admitted as?

Answer 32

Judicial notice.

Question 33

Legislation of uncontroverted facts

Answer 33

1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned (e.g a person being a person). 2) A judge may take notice of facts capable of accurate and ready determination by reference to sources who’s accuracy cannot reasonably be questioned and, if they proceedings involve a jury, may direct the jury in relation to this matter.

Question 34

MC. Section 25 of the Evidence Act 2006 governs the admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with Section 25, the opinion must?

Answer 34

S25 a) Be that of an expert b) Comprise expert evidence c) Offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding. **ALL OF THE ABOVE

Question 35

MC. It is not necessary in court to prove facts such as ‘the season of summer in NZ is over the period of December to February, these facts are admitted as?

Answer 35

Judicial notice

Question 36

What is the difference between the terms, ‘beyond reasonable doubt’ and ‘on the balance of probabilities’.

Answer 36

The standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; “we think it more probable than not”, the burden is discharged, if the probabilities are equal, the burden is not discharged.

Question 37

Specific restrictions aside, if evidence is admitted, for what purposes can it be used for?

Answer 37

Once evidence is admitted, is can generally be used for all purposes; the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.

Question 38

Unfairness.

Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in 2 ways.

Answer 38

1. Evidence may be excluded if it would result in some unfair prejudice in the proceeding
2. Evidence not prejudicial in itelf 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 e.g unfair confession.

Question 39

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

Answer 39

Materiality and probativeness. Materiality - asks whether the evidence is offered on a matter of fact at issue in the case (consequence to the determination of proceeding) Probativeness - asks whether the evidence has a logical ‘tendency to prove or disprove’ the material proposition on which it is offered.

Question 40

Section 37 of the Evidence Act 2006 relates to the veracity rules of evidence. When a Judge considers whether evidence is ‘substantially’ helpful they should take a number of matters in to account. What are 4 of these matters? (VCIBM)

Answer 40

• Lack of veracity on the party of the person when under a legal obligation to tell the truth. - That the person has been convicted of 1 or more offence 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 41

Section 38 (2) - In order to be able to offer evidence of a defendant’s veracity what are the conditions that must be met?

Answer 41

-The prosecution must show that veracity is relevant - The defendant has offered evidence about their veracity (by testifying or questioning witnesses) - The defendant has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue. - The proposed evidence must meet the substantial helpfulness test. - The prosecution must get permission from the judge to offer the evidence.

Question 42

38 (3) - In deciding to give permission for prosecution to question the defendant about his or her veracity, the judge may take in to account?

Answer 42

• The extent to which the veracity of the defendant or prosecution witness, has been put in issue in the defendant’s evidence. - The time that has elapsed since any conviction about which the prosecution seeks to give evidence. - Whether any evidence given by the defendant about veracity was elicited by the prosecution

Question 43

Section 18 (1) of the Evidence Act 2006 makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. Section 16 (1) of the Evidence Act 2006 defines these circumstances. According to section 16 (1) of the Evidence Act, circumstances in relation to a statement, by a person who is not a witness, include? (NCMVA)

Answer 43

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 44

In relation to the reliability of hearsay statements, briefly outline the three reasons why hearsay evidence is generally excluded? (CDM)

Answer 44

Cross-examine - 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, etc. Demeanor - addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement in question. Mistakes - there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people.

Question 45

The rule against hearsay lies in the lack of reliability of hearsay evidence, because?

Answer 45

The reason for the rules existence is therefore that danger of attributing undeserved weight to evidence that cannot be adequately or properly tested.

Question 46

A hearsay statement contained in a business record is admissible if?

Answer 46

a) the person who supplied the information used for the composition of the record is unavailable as a witness; or b) the judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonable be expected to recollect the matters dealt with in the information he or she supplied; or c) the judge considers undue expense or delay would be caused if that person were required to be a witness.

Question 47

In relation to non-expert opinion, in order to be admissible under Section 24 of the Evidence Act 2006, the statement of opinion must fulfill two basic criteria’s, what are these?

Answer 47

• 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 48

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 48

• 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 witness.

Question 49

According to Section 35 (2), a previous statement made by a witness that is consistent with the witnesses evidence is admissible to the extent that the statement is necessary to… what are these two exceptions to the general prohibition on previous consistent statements? (RCWVA & CORI POW)

Answer 49

• Respond to challenges to the witnesses 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 50

Limited use of evidence - what are the 3 provisions?

Answer 50

Section 27 - controls the use of a pre-trial statements of defendants and co-defendants Section 31 - Forbids the prosecution from relying on certain evidence offered by defendants in a criminal case Section 32 - Forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt

Question 51

Limits of re-examination

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for what purpose?

Answer 51

For the purposes of:

• clarifying or qualifying any issue raised during cross-examination
• but may not be questioned on any other matter, except with the permission of the judge.