Short Answers Two DONE Flashcards
- DEFINE the following terms: ‘Facts in Issue’ and ‘Witness’?
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.
- 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 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.
- DEFINE ‘Hostile Witness’ s4, EA 2006?
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.
- DEFINE ‘leading question’ and what the general rule in relation to leading questions?
- 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)
- When are leading questions permitted?
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
- Explain a ‘voir dire’?
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’.
- Explain privilege & list four (4) categories of privilege.
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
- What is the judge’s role in a trial by jury?
- 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.
- Can a witness refresh their memory before court? Explain –
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
- What is presumption of fact and give an example?
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
- What is the purpose of evidence law & give four (4) examples?
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
- Define Hearsay statement?
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
- Define expert witness?
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.
- What are the two (2) exceptions to the general prohibition on previous consistent statement (section 35 of the evidence act 2006)
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
- s40(1) Propensity – what does ‘propensity evidence’ mean? And what does exclude – s40(1)(b)?
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