shorties

Question 1

what does propensity evidence mean

Answer 1

Propensity evidence is evidence about a persons propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.

Question 2

list 4 categories of privilege

Answer 2

• privilege against self incrimination
• marital privilege
• professional confidences
• public policy
• police informants

Question 3

what is the definition of a hearsay statement

Answer 3

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 it’s contents

Question 4

the fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with the prosecution. what are the two exceptions to this rule

Answer 4

sometimes the burden of proof reverses and falls on the defendant when:

• there exists specific statutory exceptions
• section 67(8) of the summary proceedings act 1957 applies

Question 5

the fundamental condition for admissibility of evidence is that it must be relevant. what is the two prong test for relevance

Answer 5

Materiality and Probativeness:

Materiality asks whether the evidence is offered on a matter of fact at issues in the case (of consequence to the determination of the proceeding s7(3))

Probativeness asks whether the evidence has a logical tendency to prove or disprove the material proposition on which it is offered s7(3)

Question 6

s37 of the evidence act 2006 relates to the veracity rules of evidence. when a judge considers whether evidence is substantially helpful he/she should take a number of matters into account. List 4 of these

Answer 6

• lack of veracity on the part of the person when under a legal obligation to tell the truth
• that the person has been convicted of 1 or more offences 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 7

Define cicrumstantial evidence

Answer 7

circumstantial evidence is a fact that by inference can prove another fact in issue

Question 8

define statement

Answer 8

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

Question 9

what are presumptions of law

Answer 9

a presumption of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable

eg a child under 10 cannot be convicted

Question 10

what are presumptions of fact

Answer 10

presumptions of fact are those that the mind naturally and logically draw from the facts given, they are always rebuttable.

eg. receiving stolen property that they have in their possession

Question 11

section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. According to section 16(1) of the evidence act 2006 circumstances relating to a statement by a person who is not a witness include

Answer 11

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) the 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 12

what is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by section 24 and 25 of the evidence act 2006

Answer 12

WTA:

• Where a witness offers a bare opinion it holds little probative weight
• There is danger that a witness offering opinion evidence will usurp the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. it may be that the evidence would confuse the tribunal of fact and prolong proceedings
• A witness’s evidence of opinion may be based on other evidence which if stated expressly would be inadmissible - for example where an opinion is based largely on propensity evidence

Question 13

describe what privilege is in relation to the giving of evidence

Answer 13

a privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible

Question 14

What are two privileges outlined in the evidence act 2006

Answer 14

• privilege for preparatory materials for proceedings s56
• privilege for settlement negotiations or mediation s57
• privilege for communications with ministers of religion s58
• privilege for information obtained by medical practitioners and clinical psychologists s59
• privilege against self incrimination s60
• informer privilege s64

Question 15

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 15

TCT

• 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 the witness

Question 16

List 4 functions of a judge during a trial by jury

Answer 16

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

Question 17

in relation to the reliability of hearsay statements briefly outline the four reasons why hearsay is generally excluded

Answer 17

Hearsay lacks reliability because WCT

• 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 and so on.
• The rule addresses the Concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question
• There is danger that witnesses will make mistakes about the meaning or content of statements made by other people
• The reason for the rule’s existence is therefore the danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be a reasonable assurance of reliability, which means that the evidence must be reliable enough for the fact finder to consider it, and draw its own conclusions as to weight

Question 18

what is a leading question

Answer 18

a leading question suggests the desired answer or assumes that disputed facts exist

Question 19

what are two exceptions to the general rule concerning leading questions

Answer 19

• introductory or disputed facts
• identification
• assisting memory
• contradiction
• hostile witnesses

Question 20

define direct evidence

Answer 20

any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced

Question 21

define admissible evidence

Answer 21

evidence is admissible if it is legally able to be received by a court

Question 22

what is meant by an unavailable witness under s16(2) of EA 2006

Answer 22

a person is unavailable as a witness if the person:

IIICI

a) is dead; or
b) is outside NZ and 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 23

s92(1) of EA 2006 outlines the duty to cross examine a witness, what must a party cross examine a witness on, and when does this duty arise

Answer 23

party must cross examine witness on:

• significant matters relevant in the proceeding
• the matters must be relevant and in issue in the proceeding
• the matters must contradict the evidence of the witness

The duty to cross examine arises when

• the witness may reasonably be expected to be in a position to give admissible evidence on those matters

Question 24

what are the two exceptions to the general prohibition on previous consistent statement (s35 of EA 2006)

Answer 24

A previous statement of a witness that is consistent with the witness’s 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 intervention on the part of the witness

Question 25

there are two 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 of law. What are two offences

Answer 25

the two offences are:

• perjury and related offences (s108, 110 and s111 of Crimes Act 1961)
• treason (s73 Crimes Act 1961)

Question 26

in relation to non expert opinion, in order to be admissible under s24 the statement of opinion must fulfil two basic criteria, what are they

Answer 26

to be admissible under s24 non expert opinion evidence must:

• be necessary to enable the witness to communicate or the fact finder to understanding what the witness saw, heard or otherwise perceived
  1) opinion must be the only way in which to effectively communicate the information to the finder of fact
  2) the witness must be starting an opinion (be it conclusion, inference etc) from something personally perceived

Question 27

the veracity and propensity rule do not apply to bail or sentencing hearings except when …

Answer 27

• the evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant
• the evidence relates directly or indirectly to his or her reputation in sexual matters

Question 28

what are two types of questions that can be asked once a witness has been declared hostile

Answer 28

1) challenged with regard to how they know the facts about which they are testifying
2) tested on such matters as to the accuracy of memory and perception