Evidence

Question 1

Define evidence

Answer 1

The whole body of material which a court or tribunal may take into account in reaching their decision. Evidence may be oral, written, or visual form.

Question 2

Define admissible evidence

Answer 2

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

Question 3

Define ‘relevance’

Answer 3

Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”

Question 4

Define ‘facts in issue’

Answer 4

Facts in issue are those which:

• the prosecution must prove to establish the elements of the offence, or
• the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof

Question 5

Define ‘exclusionary rules’

Answer 5

These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial, or otherwise unfair to admit it)

Question 6

Define ‘weight of evidence’

Answer 6

It is the value in relation to the facts in issue. The value will depend on a wide range of factors, such as:

• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• the extent to which it is supported contradicted by other evidence produced
• the veracity of the witness

Its the ‘probative force’ that can be given to evidence.

Question 7

When does a witness ‘offer evidence’?

Answer 7

When a witness accepts the proposition. It includes eliciting evidence by cross-examination of a witness called by another party. (Evidence Act S96(1)).

Question 8

What are three ways to give evidence?

Answer 8

1. in the ordinary way (orally or in an affidavit field in court or by reading a written statement in a court room)
2. in an alternative way (in a court room but unable to see the defendant, outside the courtroom, video recording, AVL
3. in any other way (provided by the evidence act)

Question 9

Define ‘incriminate’.

Answer 9

To provide information that is reasonably likely to lead to, or increase the likelihood of the prosecution of a person for a criminal offence.

Question 10

Define ‘hearsay statement’

Answer 10

A statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents.

Question 11

Define ‘veracity’

Answer 11

The deposition of a person to refrain from lying, other generally or in a proceeding.

Question 12

Define ‘propensity’

Answer 12

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

Question 13

Define ‘direct evidece’

Answer 13

Evidence given by a witness as to a fact in issue that he or she has seen, heard, or otherwise experienced (eg an eye witness who states she saw the defendant stab the complainant).

Question 14

What is ‘circumstantial evidence’?

Answer 14

Is evidence of circumstances that do not directly prove any fact in issue, but allow inferences about the existence of the facts to be drawn (eg. the defendant was seen in the vicinity of the scene of the crime).

Question 15

Other than the NZ Police what are three other enforcement agencies?

Answer 15

NZ Customs, Ministry of Fisheries, and Inland Revenue Department.

Any body or organisation that has statutory responsibility for the enforcement of an enactment.

Question 16

What is the Woolmington Principal?

Answer 16

It is the presumption of innocence. The burden of proof lies clearly with the prosecution in relation tool the elements of the offence. The prosecution bears the ultimate burden of proving the case beyond reasonable doubt.

In some cases, the defence will have practical obligation, evidential burden, the burden of proof may be reversed.

Question 17

What is the ‘principal obligation’ on defence?

Answer 17

If the Prosecution proves that the defendant committed the act with the requisite mental element, then the defendant has to produce some story or evidence if he or she wants to suggest the conclusion is wrong.

This isn’t a burden of proof, the defendant doesn’t have to prove anything, but if they do not wish to put up a particular defence to the charge, it is simply practical obligation to point to some evidence.

Question 18

What is the ‘evidential burden’ on defence?

Answer 18

Having evidential burden means that a defence cannot be left to the jury or judge unless it has been made a ‘live issue’ by the defence. It is not a burden of proof, and once it is made a ‘live issue’ then the prosecution must destroy the defence.

Eg. Self defence. It is not a ‘principal obligation’, rather an ‘evidential burden on the defendant.

Question 19

What are the exceptions to the Woolmington Principal?

Answer 19

Where the legal burden of proof is placed on the defendant. Eg. the defence of insanity (CA1961 S23(1)).

Some offence provisions shift the burden of proof of specific defences to the defendant. Eg. Possession of an Offensive Weapon.. ‘in circumstances that prima facie show an intention to commit an offence involving bodily injury’. The defendant can prove the absence of any intent

Question 20

To what level of proof must the prosecution and defence prove?

Answer 20

Prosecution - Beyond reasonable double

Defence - Balance of probabilities

Question 21

What does ‘beyond reasonable doubt’ mean?

Answer 21

An honest and reasonable uncertainty eft in your mind abut the guilt of the defendant after you have given careful and impartial consideration all of the evidence.

The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

Question 22

What does ‘balance of probabilities’ mean?

Answer 22

That it is more probable than not, if the probabilities are equal, the burden is not discharged.