Short Answers Two DONE

Question 1

1. DEFINE the following terms: ‘Facts in Issue’ and ‘Witness’?

Answer 1

Facts in issue are the facts which in law need to be proven to succeed with the case. In criminal cases the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.
Facts in issue are those which –
• The prosecution must prove to establish the elements of the offence
• The defendant must prove to succeed with a 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

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 specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 3

4. DEFINE ‘Hostile Witness’ s4, EA 2006?

Answer 3

A hostile witness means the witness (s4, EA 2006)
• 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 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.
Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding.

Question 4

5. DEFINE ‘leading question’ and what the general rule in relation to leading questions?

Answer 4

• One that directly or indirectly suggests a particular answer to the question (s4) Eg: answer yes or no.
• The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89)

Question 5

6. When are leading questions permitted?

Answer 5

S89(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

Question 6

7. Explain a ‘voir dire’?

Answer 6

A hearing where evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Facts determined at a voir dire are sometimes referred to as ‘preliminary facts’.

Question 7

8. Explain privilege & list four (4) categories of privilege.

Answer 7

Is 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

Question 8

9. What is the judge’s role in a trial by jury?

Answer 8

• Decide all questions concerning the admissibility of evidence
• Instruct the Jury on the rules of law by which the evidence is to be weighed once it has been submitted.
• Explain and enforce the general principles of law applying to the point at issue.

Question 9

10. Can a witness refresh their memory before court? Explain –

Answer 9

S90(5), E.A 2006 –
For the purposes of refreshing his or her memory while giving evidence, a witness may with the prior leave of the Judge, consult a document made or adopted at the time when his or her memory was fresh.
The following conditions must be satisfied:
• The leave of the judge must be obtained
• The document must be shown to every other party in the proceeding
• The document must have been made or adopted by a witness at the time when his or her memory was fresh

Question 10

11. What is presumption of fact and give an example?

Answer 10

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

Eg: one presumes that a person has guilty knowledge if they have possession of recently stolen goods

Question 11

12. What is the purpose of evidence law & give four (4) examples?

Answer 11

S6 – 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 rule
(b) providing rules of evidence that recognize the importance of the rights affirmed by the NZBORA 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 12

13. Define Hearsay statement?

Answer 12

s4, E.A 2006 – ‘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 content

Question 13

14. Define expert witness?

Answer 13

S4, E.A 2006 – “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 14

15. What are the two (2) exceptions to the general prohibition on previous consistent statement (section 35 of the evidence act 2006)

Answer 14

S35(2) – A previous 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 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.

(3) A previous statement of a witness that is consistent with the witnesses evidence is admissible if –

​(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
​(b) the statement provides the court with information that the witness is unable to recall

Question 15

16. s40(1) Propensity – what does ‘propensity evidence’ mean? And what does exclude – s40(1)(b)?

Answer 15

S40 Propensity evidence –
(1)(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) one of the elements of the offence for which the person is being charged
​(ii) the cause of action in the proceeding in question

Question 16

17. Explain the s.8 test?

Answer 16

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))

• It is intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding.

Evidence will be admitted under section 8 if it’s probation 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 17

18. s125(1) – Does a judge have to give a warning re: directions about evidence given by children?

Answer 17

(1) In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the Jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of warning had the complainant been an adult.

Question 18

19. s85 – List examples of unacceptable questions

Answer 18

(1) In any proceeding, the judge may disallow, or direct that a witness is not obliged to answer any question/s that the Judge considers –
• Improper
• Unfair
• Misleading
• Needlessly repetitive
• Expressed in a language that is too complicated for the witness to understand

Question 19

20. What is the purpose of cross examination?

Answer 19

• 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 20

23. List & describe two ‘alternative way’ of giving evidence?

Answer 20

• In the Court room but unable to see the Defendant or other person
• Outside the courtroom
• By video recording made before the hearing

Question 21

22. Define statement?

Answer 21

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 22

24. Relevant evidence may be excluded if it’s unfair (prejudicial):

Answer 22

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.

Question 23

21. s122(2)

Answer 23

21. s122(2) in a criminal proceeding tried by a jury the judge MUST consider giving 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 where both the defendant and the other person were detained in prison, a Police Station or another place of detention.

Question 24

3. Explain reasonable doubt / balance of probabilities – include the part in the module where it say ‘it means…

Answer 24

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.

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.

Balance of probabilities is 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 required in a criminal case.