The COURSE of EVIDENCE

Question 1

What three responsibilities does a judge have when presiding over a trial by jury:

Answer 1

(1) Decide all QUESTIONS regarding admissibility
(2) EXPLAIN and enforce the GENERAL PRINCIPLES OF LAW applying to the point at issue
(3) INSTURCT the jury on the RULES OF LAW by which the evidence is to be weighed once it has been submitted.

Question 2

Adversarial proceedings:
How do FACTS and the EVIDENCE supporting those facts emerge during proceedings?

Answer 2

By QUESTIONS put by the prosecution or defence TO THE WITNESSES called by them.

Question 3

Adversarial Proceedings:
Is it up to each party to decide what witness to call and the order they are called, or is this determined some other way?

Answer 3

Yes, it is up to each party.

Question 4

Adversarial Proceedings:
Does each party have the right to cross-examine witnesses called by the opposing party?

Answer 4

Yes

Question 5

Adversarial Proceedings:
Whose responsibility is it to ensure that evidence is produced according to the established rules, and if necessary ruling on its admissibility?

Answer 5

The Judge.

Question 6

Adversarial Proceedings:
Can the judge or jury go beyond the evidence already given and call other witnesses or pursue their own lines of enquiry.

Answer 6

No. However, in exceptional cases, and in the interest of justice, the judge may require the prosecution to call a witness who has not been called. Note, this is very rare.

Question 7

Adversarial Proceedings:
Judges are not supposed to “descend into the arena” by asking questions to the witness. When might a judge intervene and ask a question:

Answer 7

When he believes justice requires it for the purpose of CLARIFICATION or the elimination of IRRELEVANCY.

Question 8

Adversarial Proceedings:
If a juror has a question or wants to ask a question of a witness, how must they go about it?

Answer 8

The question is submitted to the judge who will determine whether and how it will be put to the witness.

Question 9

Adversarial Proceedings:
What does it mean when a fact has been JUDICIOUSLY NOTICED?

Answer 9

The fact is accepted and cannot be reasonably questioned.

This also goes for facts that can be readily determined by reference to sources whose accuracy cannot be reasonably questioned.

Question 10

Adversarial Proceedings:
Do JUDICIALLY NOTICED facts still need to be proved?

Answer 10

No, this is why they are judicially noticed.

Question 11

Adversarial Proceedings:
Can a judge admit published documents as reliable sources of information in matters of public history, literature, science or art?

Answer 11

Yes

Question 12

At what age must a witness take an OATH or AFFIRMATION before giving evidence?

Answer 12

12 and over

Question 13

Instead of an oath or affirmation, a witness under 12 years must:

Answer 13

(1) Be INFORMED by a judge of the importance of telling the truth and not telling lies
(2) PROMISE to tell the truth before giving evidence

Question 14

Can a witness give evidence without one of the three declarations to tell the truth (Oath, Affirmation, or Promise)?
If so, what are the conditions and reasons?
And can the evidence still be treated as if it had been given after an Oath, Afdirmation or Promise?

Answer 14

Yes, in exceptional circumstances a witness can give evidence.

The exceptional circumstances would be an adult who is intellectually incapable or a child who can’t make a promise to tell the truth.

The condition is that the judge still explains the importance of telling the truth.

Then the evidence can be taken as if it were under oath, affirmation, or promise.

Question 15

Can the court give leave for the defendant to make the OPENING STATEMENT?

Answer 15

Yes

Question 16

Can the defence call a witness immediately after a prosecution witness? Why?

Answer 16

Yes, because this may assist the jury in building a STORY about what happened and how the evidence fits together.

Question 17

Evidence act 2006:
After the witness gives their evidence in chief, what happens next:

Answer 17

(1) Parties, other than the one who called the witness, may CROSS-EXAMINE the witness
(2) The witness may be RE-EXAMINED

Question 18

If a witness gives evidence in an affidavit or by reading a statement, will it be treated as EVIDENCE IN CHIEF?

Answer 18

Yes

Question 19

What is the sequence of jury trials:

Answer 19

(1) The jury is empaneled, a foreperson selected, and then the Judge commences the trial with opening instructions to the jury.

(2) Crown makes opening address summarizing the charges, the case, and the proposed evidence.

(3) The crown presents their case, calls their witnesses and the witnesses to give evidence in chief followed by cross-examination and re-examination.

(4) The defence opens its case with an opening address.

(5) The defence presents its case, and calls its witnesses to give evidence in chief followed by cross-examination and re-examination.

(6) The Crown makes their closing address by summarizing the case. No new evidence is allowed.

(7) The defence makes their closing address in similar fashion.

(8) The judge sums up prior to the jury retiring to consider its verdict.

Question 20

Must the defence present their case or offer evidence in a trial?

Answer 20

No, they can forgo this. They may also elect to address the court to make clear what facts are at issue.

Question 21

What are the 4 catagories of offences and how they are tried?

Answer 21

(1) Judge Alone Trial - for category 1 and 2 offences (no imprisonment and under 2 years)

(2) JAT with option for trial by Jury - Catagory 3 offences (2+ years)

(3) High Court - Catagory 4 offences

Question 22

What is a “VIEW” when used in a trial?

Who attends?
How is the evidence regarded?

Answer 22

A VIEW is when an inspection is carried out of a place outside of the court. E.g. a crimes scene.

All parties and their lawyers are entitled to attend.

Any information gathered may be used as though it had been given in evidence.

Question 23

No party may comment on the defendant choice whether to give evidence or not, except the judge.

What is the responsibility of the judge if he does make comment about the defendant’s choice?

Answer 23

The judge must not leave the jury with the impression that if the defendant were innocent they would have given evidence. The judge must also remind the jury that the burden of proof rests with the Crown.

Question 24

Can EVIDENCE IN CHIEF be given orally?

Answer 24

Yes, but both parties must agree.

Question 25

May LEADING QUESTIONS be asked during evidence in chief?

Answer 25

No.

Question 26

What 3 reasons underpin the belief that leading questions will lead to unreliable evidence?

Answer 26

(1) A natural tendancy to answer “yes” to suggestions put to them.
(2) Elicited answers and reduced spontaneity and genuineness
(3) Collusion (conscious or otherwise) between Counsel and Wittness

Question 27

What is the goal of EVIDENCE IN CHIEF?

Answer 27

For the witness to give a FREE RECALL in their own words.
For the Trier to judge the QUALITY of the testimony

Question 28

s89
In what 3 situations may a LEADING QUESTION be permitted:

Answer 28

(1) The question relates to INTRODUCTORY or UNDISPUTED matters
(2) The question is put with CONSENT of all parties
(3) Judges DISCRESTION

Question 29

89(1)(c)
Give 2 examples where a Judge may allow a Leading Question even though the fact at issues is not undisputed nor is there agreement by both parties for the question?

Answer 29

(1) To direct a witnesses attention
(2) To JOG THE WITNESSES MEMORY, provided the answer to the issue is not suggested.
(3) Where the witness has been DECLAIRED HOSTILE

Question 30

s90(5)
What 3 things must be done before a witness is permitted to refer to a document for refreshing their memory:

Answer 30

(1) LEAVE must be obtained
(2) The document must be SHOWN to EVERY PARTY
(3) The document must have been MADE while the witnesses MEMORY WAS FRESH

Question 31

In R v Rongonui, what elapse of time did the court still deem a memory to be FREAH when the statement was made?

Answer 31

6 weeks.

Question 32

s35
Can previous CONSISTENT STATEMENTS normally be admitted?
Why?

Answer 32

No, because the repetition may cause the jury to give the statement more weight than it is due.

Question 33

s35(2)
Give one example where a PREVIOUS CONSISTENT STATEMENT may be admitted?

Answer 33

(1) When the witnesses VERACITY is called into question.
(2) INTEGRAL to the matters before the court
(3) To prove the statement was made

Question 34

A party is not normally allowed to cross-examine their own witness. Give one example where a Judge may allow this?

Answer 34

When the witness has been declared HOSTILE.

Question 35

Can a party call a witness whom they know will be HOSTILE?

Answer 35

Yes. There is no rule against this.

Question 36

When cross-examining a HOSTILE WITNESS what may a Judge permit the party to do:

Answer 36

(1) Ask LEADING QUESTIONS
Ask questions designed to PROBE the accuracy of memory and perception
(3) ask questions as to PRIOR INCONSISTENT STATEMENTS
(2) Challenge VERACITY

Question 37

What 3 situations would a witness be regarded as a HOSTILE WITNESS:

Answer 37

(1) Lack VERACITY about something they should have knowledge
(2) INCONSISTENCIES that appear Intentionally unhelpful
(3) REFUSE to answer questions or WITHOLDING evidence

Question 38

What is the difference between a HOSTILE WITNESS and an UNFAVORABLE WITNESS?

Answer 38

A Hostile witness is intentionally unhelpful.
An UNFAVORABLE witness may just not come up to brief and not give the desired evidence due to lack of memory.

Question 39

What are the 2 purposes of CROSS-EXAMINATION:

Answer 39

(1) To ELICIT INFORMATION
(2) To CHALLENGE ACCURACY

Question 40

Can a DEFENDANT cross-examine the witnesses of CO-DEFENDANTS?

Answer 40

Yes

Question 41

Why might a judge limit the amount of LEADING QUESTIONS given during CROSS-EXAMINATION of a witness on the same side as the party examining them?

Answer 41

To avoid a sham interrogation

Question 42

If a party has contradictory material, why must they put this to the witness during cross-examination?

Answer 42

Because the material will be given little or no weight unless the witness has a chance to explain it.

Failure to do this may mean the witness is called back to give rebuttal evidence.

Question 43

The 4 criteria that qualify matter for cross-examination are matters that are:

Answer 43

(1) Significant Matters
(2) RELEVANT and IN ISSUE
(3) appearing to CONTRADICT the witness
(4) REASONABLY expected for the witness to give ADMISSIBLE EVIDENCE on.

Question 44

When is a judge most likely going to need to disallow UNACCEPTABLE QUESTIONS

Answer 44

During cross-examination

Question 45

What are three examples of UNACCEPTABLE QUESTIONS:

Answer 45

(1) Needlessly REPETITIVE
(2) COMPLICATED
(3) MISLEADING
(4) UNFAIR

Question 46

s96 cross-examination to prior statement:
A witness may be cross-examined on a previous statement whether it is:
(a) Written
(b) Oral (eg recorded on a police job sheet)
(c) both

Answer 46

C

Question 47

s96 cross-examination to prior statement:
A witness may be cross-examined on a prior:
(a) consistent statement
(b) inconsistent statement
(c) both

Answer 47

C

Question 48

s96 cross-examination to prior statement:
Can a witness be cross-examined on a previous statement if that statement is not first disclosed to them?
What conditions apply?

Answer 48

Yes. But the cross-examiner must adequately identify to the witness the time, place and other circumstances concerning the making of the statement.

Question 49

s96 cross-examination to prior statement:
If a party wishes to cross-examine a witness on a previous statement, but the witness does not admit to making the statement, what must be done if the party wants to prove the witness did make the statement?

Answer 49

(1) The party must show show or disclose the contents of the statement to the witness
(2) the witness must be given an opportunity to deny the statement or explain they inconsistency

Question 50

What is re-examination limited to?

Answer 50

It is limited to the issues raised in cross-examination

Question 51

Can a judge grant a party who is re-examining a witness to raise issues not raised during cross-examination?
What is the process in this situation?

Answer 51

Yes, in certain situations a judge may choose to allow this upon request.

However, the issues can then be cross-examined and re-examined.

Question 52

What is the most commonly granted reason for requesting permission to offer rebuttal evidence?

Answer 52

In relation to matters arising from the conduct of the defence.
Evidence the relevance of which could not reasonably have been foreseen.

Question 53

What is REBUTTAL EVIDENCE?

Answer 53

Evidence not disclosed or offered by the completion of the party’s case, but nevertheless required to rebut something arising during trial.

Question 54

When does the opportunity to seek leave to offer rebuttal evidence end?
(Answer for both JAT and Jury trials)

Answer 54

(1) For a JAT, the request must be made before the judge passes the verdict
(2) For a jury trial - the request must be made before the jury retires to deliberate.

Question 55

In addition to rebuttal evidence, what else may a judge call upon in the interests of justice?

Answer 55

The judge may RECALL a witness who has given evidence.

Question 56

What are the six JUDICIAL DIRECTION and WARNINGS found in 122-127 of the Evidence Act 2006:

Answer 56

122 - Evidence may be UNRELIABLE
123 - Direction about certain WAYS of GIVING EVIDENCE
124 - Warning about LIES
125 - Direction about CHILDREN’S EVIDENCE
126 - IDENTIFICATION EVIDENCE
127 - DELAYED COMPLAINTS

Question 57

If a judge issues a judicial warning in relation to a DELAYED COMPLAINT, how long must the complainant tarry before it becomes a delayed complaint?

Answer 57

More than 10 years.

Question 58

Can a party request a judge to issue a judicial warning?

Answer 58

Yes, but the judge may decline the request if he believe it may unnecessarily emphasize the evidence. Or the judge has some other good reason to decline the request.

Question 59

Is it at the judges DISCRETION whether to consider issuing a judicial warning to the jury before they consider HEARSAY evidence, or is it MANDITORY for the judge to consider this?

Answer 59

s122(2) Hearsay is one of the CERTAIN TYPES of evidence where this is MANDATORY.

The reason is the statement maker is not present to promise to tell the truth or to be cross-examined

Question 60

MUST a judge consider issuing a judicial warning to a jury before they consider a CONFESSION if it is the only evidence against the defendant?

Answer 60

122(2)
Yes. (Because of the risk of false confessions)

Question 61

Must a judge consider issuing a judicial warning for a delayed complaint?
Why?

Answer 61

122(2)
Yes. Because memories can fade over time. This will affect the reliability of the evidence.

Question 62

When a judge decides to issue a judicial warning do they have to issue it at a particular time or using particular words?

Answer 62

No.

Question 63

Can a proven lie made by a defendant about a material matter be taken into account as Circumstantial evidence of guilt (or as affecting veracity)?

Answer 63

Yes

Question 64

Why might a judge issue a judicial warning about considering evidence suggesting a lie made by the defendant or during the proceeding?
What three warnings may a judge issue:

Answer 64

(1) The jury must be satisfied the defendant did lie before they consider the evidence
(2) People lie for various reasons
(3) Just because the defendant lies he is not necessarily guilty of the charge

Question 65

When a child witness is about to give evidence, is it up to the judges discretion to issue a judicial warning as to any absence of corroboration, or to exercise care as children generally have a tendancy to invent or distort?

Answer 65

s125

No. A judge is prohibited from the differential treatment of child complainants and witnesses. Their evidence must be treated in the same way as evidence given by adults.

Question 66

Are there any special regulations for evidence given by child witnesses?

Answer 66

Yes, s49. Special provision for child witnesses under 6 years.
This only pertains to how the evidence was obtained. The evidence itself will still be treated in the same way as evidence given by an adult.

Question 67

What are 4 things an O/C should advise a witness they a preparing for giving evidence:

Answer 67

(1) Advise them of the date, time, and location of the trial.
(2) Advise them of the proceedure.
(3) Advise them to tell the truth and to say, “I don’t know” rather than guess when they don’t know the answer.
(4) Advise them about witness expenses
(5) Advise them not to mix with the jurors.

Question 68

What are 4 things the O/C case must remember to do in a court proceeding:

Answer 68

(1) Look, Stand and speak correctly
(2) Identify the defendant
(3) Locate your witnesses and help them as required.
(4) Do not mix with jurors or defence.

Question 69

What 4 things must an O/C remember to do when giving evidence:

Answer 69

(1) Answer the actual question
(2) Say you don’t know rather than guess
(3) Don’t be flippant
(4) Advise the judge or the prosecutor as soon as possible if you make a mistake

Question 70

What must you do if you need to refer to you notebook:

Answer 70

(1) Ask the courts permission
(2) Introduce the material properly
(3) Seal off other entries so the notebook can be examined by the jury or defence
(4) You may refresh your memory, but you cannot read the whole entry.

Question 71

Must you give evidence that is favorable to the defence if you have it?
Why?

Answer 71

Yes. The reason is because the court need to get to the truth of a matter. Being forthright also shows you are unbiased and credible.

Question 72

What is another term for the ADVERSARIAL system?

Answer 72

The ACCUSATORIAL system.