SHORT ANSWERS - PART 3 Flashcards
When is a witness deemed to be unavailable as a witness according to section 16(2) of the evidence act 2006?
- Dead
- Outside NZ and is not reasonably practicable for him/her to be a witness
- Is unfit to be a witness because of age/physical/mental condition
- Cannot with reasonable diligence be identified/found
- Is not compellable to give evidence
***Section 8 of the Evidence Act 2006 provides that the Judge must exclude evidence if probative value is outweighed by the risk that the evidence will do one of two things.
Name both?
- Have an unfairly prejudicial effect on the proceedings.
- Needlessly prolong the proceeding.
***The aim of the Evidence Act 2006 is to “help secure the just determination of proceedings” through the 6 objectives set out in section 6
List 4 of these objectives:
(Purpose of Evidence Law)
a) Providing facts to be established by application of logical rules
b) Providing rules of evidence that recognise the importance of rights under BOR Act
c) Promoting fairness to parties and witnesses
d) Protecting rights of confidentiality and other important public interests
e) Avoiding unjustifiable delay and expense
f) Enhancing access to law of evidence
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?
- 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”
Previous consistent statements are generally inadmissible. The intention is to prevent parties from inundating the courts with repetitive material in order to shore up a witness’s consistency.
State 2 of the 3 exceptions to this rule outlined in the provisions of Section 35(2) of the Evidence Act 2006.
- When the statement forms in integral part of the events before the Courts
- When the statement consists of the mere fact that a compliant has been made in a criminal case.
The defendant does not need to give evidence at trial and is not obliged to call any other evidence on their behalf.
Detail the restrictions under Section 33 Evidence ACt 2006 on commenting on a defendants right of silence at trial?
No person other than the defendant or the defendants counsel or judge may comment on the fact that the defendant did not give evidence at his or her trial.
***There are 2 types of offences in which the unsupported evidence of one witness is insufficient to support a conviction.
a) Define Corroboration
b) In these instances, corroboration is required as a matter of law. Name these 2 types of offences?
A)
- Corroboration 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.
B)
- Perjury and related offences (S108, 110 and 111 of CA 1961)
- Treason (S73 CA1961)
***In relation to non-expert opinion, in order to be admissible under S24, the statement of opinion must fulfill to basic criteria. Name them?
- 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.
Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.
- The evidence relates directly/indirectly to the sexual experience of the complainant with any person other that the defendant
- The evidence relates directly/indirectly to his/her reputation in sexual matters.
In a criminal proceeding with a jury, the Judge must consider weather to give a warning whenever the following evidence is given? (list at least 4)
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 where in prison, police station, or other place of detention
e) Evidence about the conduct of the defendant if that conduct id alleged to have occurred more than 10 years previously
***A 10-year-old complainant for an indecent assault is the only witness giving evidence of the fact that the accused rubbed her bottom as she walked past him at her local dairy.
Under what circumstances, if any would a judge deliver a warning to the jury where the witness is a child and there is an absence of corroboration of the child’s evidence?
a) a warning should be given if the judge would have given the same kind of warning if the complainant was an adult.
b) a judge must not give any warning to the jury about the absence of corroboration of the evidence of a child complainant where a warning would not have been given in the case of an adult complainant.
***What is the purpose of Cross Examination?
Purpose of cross-examination:
1) 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.
***Following cross-examination by defence, the Crown solicitor may wish to re-examine the prosecution witness. What are the conditions and limits in relation to the re-examination of witnesses?
After cross-examination by the opposing counsel, the party who called the witness may re-examine that witness for the purpose 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.
***Detective Jones is giving evidence at a Trial in relation to drug dealing from a “tinny house” He wishes to refer to his notebook to confirm the timings around when various items were located throughout the address.
What conditions are placed on a witness who wishes to refresh their memory by consulting a document while giving evidence?
1) Leave of the judge must be granted.
2) Document must be shown to every other party in the proceeding
3) Document was ‘made or adopted’ by a witness ‘at a time when their memory was fresh’.
4) Document must have been made by the witness OR by another person acting on the witness’s behalf in his presence or presence and adopted by the witness.
How do you refer to your notebook in Court?
a) Ask the courts permission
b) Introduce the material properly (“I interviewed the defendant and wrote the answers in my notebook at the time”)
c) Defence and jury are entitled to view your notes so seal off other entries
d) Only can refresh memory. Cannot read entire entry unless you have permission.
