Evidence

Question 1

Rules of Evidence

Answer 1

1. How evidence may be given
2. Who may give evidence and
3. What type of material may be given in evidence.

Question 2

Evidence Terms : Admissible Evidence

Answer 2

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

Question 3

Evidence Terms: Fact finder

Answer 3

A judge or Jury

Question 4

Evidence Terms: Relevance

Answer 4

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

Question 5

Evidence Terms: Facts in Issue

Answer 5

Facts the prosecution must prove in order to establish the elements of offence. OR facts in which the defendant must prove in order to succeed with a defence in which he or she carries the burden of proof.

Question 6

Evidence Terms: Weight of evidence

Answer 6

Value of the evidence in relation to the facts.

Question 7

Evidence Terms: Probative value

Answer 7

How strongly evidence points to the inference it is said to support, and how important the evidence is to the issues in the trial.

Question 8

Evidence Terms: Prejudicial

Answer 8

Evidence adverse to a partys case, the drawing of an inference against a party. A bias or a preconceived opinion, idea, or belief about something

Question 9

Evidence Terms: Offer evidence

Answer 9

A party offers evidence, Includes calling a witness who “gives evidence” a party who testifies both gives and offers evidence. Includes eliciting (extracting out) evidence by cross examining a witness called by another party.

Question 10

Evidence Terms: Give Evidence

Answer 10

A person recounting facts or opinions in a proceeding “gives evidence” In a proceeding evidence may be given:

• In the ordinary way (orally in a court room in the presence of a Judge/jury/lawyers etc) or in an affidavit filed in court, or by reading a written statement in a court room.
• In an alternative way (in the court room but unable to see the defendant or other person, outside the courtroom, or by video record made before the hearing. AVL.
• In any other way provided for under the 2006 act or any other enactment.
• for evidence in overseas trials includes answering any question and producing any document (s195(3) Evidence act 2006

Question 11

Evidence Terms: Witness

Answer 11

A witness is a person who gives evidence and is able to be cross examined in a proceeding

Question 12

Evidence Terms: Child Complainant

Answer 12

A child who is under 18 when the charge is filed NOT at the beginning of the trial.

Question 13

Evidence Terms: Child Witness

Answer 13

A witness who is a child when the proceedings commences and includes a child complainant but does not include a defendant who is a child.

Question 14

Evidence Terms: Incriminate

Answer 14

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

Question 15

Evidence Terms: Statement

Answer 15

Is a spoken or written assertion by a person or no verbal conduct of a person intended by that person as an account of fact of any matter.

Question 16

Evidence Terms: Hearsay Statement

Answer 16

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 17

Evidence Terms: Veracity

Answer 17

Is the disposition of a person to refrain from lying

Question 18

Evidence Terms: Direct evidence

Answer 18

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

Question 19

Evidence Terms: Circumstantial evidence

Answer 19

Evidence of circumstances that do not directly prove any fact in issue (eg the defendant was seen in the vicinity of the scene of the crime.)

Question 20

Evidence Terms: Enforcement agency

Answer 20

NZ Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, (eg NZ customs, Fisheries IRD etc)

Question 21

Hearsay

Answer 21

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

“Statement” means:
- A spoken or written assertion by a person of any matter or
- non verbal conduct of a person that is intended by that person as an assertion of any matter.

Question 22

Section 18 evidence act - General admissibility of hearsay evidence

Answer 22

A hearsay statement is admissible in any proceeding if-
a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable AND
b)either
- The maker of the statement is unavailable as a witness or
- The judge considers undue delay or expense if the maker of the statement was required to be a witness

Question 23

Propensity Evidence

Answer 23

Propensity - tendency to act in a particular way given as evidence. it does not include evidence of an act or omission that is one of the elements of the offence for which a person is being tried.
Defendant may offer propensity evidence about him or her self for tactical reasons.

Question 24

Purpose of Evidence law

Answer 24

a) Providing for facts to be established by the application of logical rules, and
b) providing rules of evidence that recognise the importance of the BOR 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 assess to the law of evidence

Question 25

Relevance of Evidence

Answer 25

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

Question 26

Relevant evidence admissible

Answer 26

1. All relevant evidence is admissible in a proceeding except evidence that is -
   a) inadmissible under this or any other act
   b) excluded under this or any other act.
2. Evidence that is not relevant is not admissible in a proceeding
3. Evidence is relevant if it has the tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 27

Fairness and general exclusion (under sect 8 evidence act 2008)

Answer 27

Even tho evidence is relevant it may be excluded if it would result in some unfairness to the party against whom it is admitted.

The sec 8 test involves balancing the probative value of evidence against the unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.

Evidence will be admitted if its probative value outweighs the risks.

Question 28

Section 9 Evidence act- Admission by agreement

Answer 28

This section allows for otherwise not admissible evidence to be used where all parties agree.
Also allows for both parties to admit facts so they dont need to be proved, eg expert evidence that is not in dispute.

Question 29

Burden of Proof

Answer 29

Presumption of innocence known as “Woolmington principle” Where the burden of proof lies clearly with the prosecution in relation to all the elements of the offence.

Exemptions - Where the defence wishes to rely on the defence of insanity. this would place the burden of proof on a particular issue to one party eg the defence.

In public welfare regulatory offences such as those against maritime and aviation safety. In these cases the courts have developed a no fault defence with the burden of proof on the defendant.

Question 30

Standard of proof

Answer 30

In general where the legal burden is on the Prosecution it must be discharged “beyond reasonable doubt” This is a very high standard of proof which the crown will have met only if at the end of a case the jury is sure that the defendant is guilty.

In contrast any element which the defence bears the burden of proving only need be proved on the “balance of probabilities” Where the defence is required to prove an element such as insanity on the balance of probabilities it must simply show that it is more probable than not.

Question 31

Corroboration Sect 121 of Evidence act

Answer 31

In general one witness’s testimony unsupported by other evidence is suffiencent to prove a case where the court finds that witness reliable and accurate and provides proof to the standard required.

However 2 types of offences, perjury and related offences (ss108, 110 and 111 crimes act) and treason (273 Crimes Act) in which unsupported evidence of one witness is insufficient to support a conviction. in these instances Corroboration is a requirement.

Question 32

Oaths and affirmations

Answer 32

Witnesses who are 12yo or older must take an oath or affirmation before giving evidence. Those under the age of 12 must:

• be informed by the judge of the importance of telling the truth and not to lie (nil requirement by judge to prove the child understands the difference)
• after being given that information make a promise to tell the truth before giving evidence.
• with the Judges permission a witness of any age may give evidence without making an oath or affirmation or promising to tell the truth. Judge must give warning about telling the truth and not to lie before witness gives evidence which is then treated as if they had given the oath/affermation. Judge may give permission for the likes of an adult witness who is intellectually disabled.

Question 33

Hostile witness

Answer 33

• Exhibits a lack of accuracy when giving evidence unfavourable to the party who called the witness
• gives evidence which is inconsistent with a statement made by that witness in a manner that exhibits an intention to be unhelpful to the party who called the witness
• refuses to answer questions or withholds evidence

Question 34

Support person

Answer 34

s79 evidence act allows child witnesses or any compliant of any criminal case to have a support person.
Witnesses who are not complainants or child witnesses may apply to the judge for permission to have a support person.

Question 35

Alternative ways of witness or complainant can give evidence

Answer 35

Where a judge is satisfied that a witness should be able to give evidence in an alternative way he or she may direct that the witness gives evidence -

1. While in a courtroom but unable to see the defendant or other specified person, screens, one way mirrors etc)
2. From an appropriate place outside the court room, either in NZ or elsewhere
3. by a video record made before the hearing of the proceeding

Question 36

Propensity evidence can be given about anyone BUT rules apply if its about the Defendant or Victim
covered by sections 41 to 44

Answer 36

41 - defendant can give evidence about himself eg to say I’m a burglar not a rapist, or a go to the gym every Tuesday at 7pm

42 - defendant can give propensity evidence about a co defendant if relevant and judge approves

43 - prosecutor can offer propensity evidence about defendant if probative value exceeds risks

In sexual cases propensity evidence about a complaint and sexual experience may only be offered in accordance with section 44

Question 37

What must the judge take into account when assessing the probative value of evidence in regards to propensity?
(5 offender related)

Answer 37

The frequency of the acts

How closely in time the acts are committed to the current offending

Do the acts share similar unusual features

Similarity between the previous acts and those currently alleged

The number of people making the allegations against the defendant

Question 38

Identification evidence

Answer 38

An assertion by a person based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act/offence took place at or about the time the act was done

Or

An account (whether oral or written) of an assertion of the kind described above

Question 39

Section 45 evidence act- admissibility of visual ID evidence

Answer 39

• if a formal procedure was followed by officers in obtaining visual ID evidence of a person alleged to have committed an offence or there was good reason for not following formal procedure that evidence is admissible unless the defendant proves on the balance of probability that the evidence is unreliable

Question 40

Section 45 (2) admissibility of visual ID

Answer 40

If formal procedure is not followed by officers in obtaining the visual ID of a person who has allegedly committed an offence and there is no good reason for not following procedure then that evidence is inadmissible, unless prosecution can prove it reliable ID

Question 41

At any time after a person has been charged with an offence, if they request information about an identification witness, what must the prosecutor supply?

Answer 41

The name of the witness and (if permitted under section 17, the address) of each identification witness whether or not the prosecutor intends to call them;

A statement of any description of the offender given by each witness to the prosecutor or police, and

A copy of any identikit picture or a drawing

Question 42

Section 45 (3) of evidence act 2006. Formal procedure process

Answer 42

A) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency and

B)suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect and:

C) in which no indication is given to the person making the ID and

D) person making ID is informed the subject may or may not be among the persons in the procedure and

E) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by officer who conducted procedure and provided copy to judge and defendant and

F) pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer and provided to judge and defendant and

G) that complied with any further requirements provided for in regs made under section 201.

Question 43

Good reasons for not following formal procedure

Answer 43

A) subject refusal to take part (including refusing photographs/video where there is not already a photo or video that shows true likeness.

B) subjects appearance (being of a nature that cannot be disguised that 7 other similar people cannot be found for comparison)

C) a substantial change of appearance from time of offence to the time it was practical to hold formal procedure

D) no one involved in the case could anticipate ID be an issue at trial.

E) if an ID of a person was made to an officer soon after offence and in course of investigation

F) If ID has been made of person who committed offence, has been made to an officer after a chance meeting between the person who made the ID and the person who alleged committed an offence

Question 44

What is voice identification evidence?

Answer 44

Evidence that a voice heard first-hand or through a mechanical or electronic transmission or recording, is the voice of the defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Question 45

Section 46 evidence act. Admissibility of voice identification evidence

Answer 45

Voice ID offered by a prosecution is inadmissible unless prosecution proves on balance of probabilities that the circumstances in which the aid was made have produced a reliable Id

Question 46

Alternative ways of giving evidence
What must the judge regard under s103(4) of the Evidence Act 2006? (5)

Answer 46

Alternative ways of giving evidence and the need to

ensure the fairness of the proceeding so there is a fair trial
– the views of the witness

– the need to minimize the stress on the witness

– the need to promote recovery of the complainant from alleged offense

– any other factor that is relevant to the determination of the proceeding

Question 47

Grounds under Sec 103 as to reasons why evidence can be given in an alternative way.

Answer 47

Answer:
- FEAR of intimidation
- TRAUMA suffered

The AGE or maturity of the witness
LINGUISTIC or cultural background or religious beliefs
The physical, intellectual, psychological or psychiatric IMPAIRMENT of the witness
ABSENCE or likely absence of the witness from NZ
NATURE of the evidence the witness will give
NATURE of the proceeding
The relationship of the witness to any other party in the proceeding.
Absence or likely absence of the witness from NZ.

Question 48

Under s13 of Criminal Disclosure Act 2008 full disclosure by the prosecution must be made as soon as reasonably practical after the defendant has what?

Answer 48

Answer:
- pleaded not guilty
– when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court

Question 49

Q
Timeframe for delivering initial
Disclosure after the commencement of proceedings?

Answer 49

Answer:
Generally not later than 15 working days

Question 50

What would be deemed to be ‘unavailable as a witness’ or ‘undue expense and delay’?
(5)

Answer 50

If the witness is dead

If the witness is outside NZ and it is not reasonably practicable for him or her to be a witness.

If the witness is unfit due to age or physical/mental condition.

If the witness cannot be found or

If the witness is not compellable to give evidence

Question 51

What is an associated defendant?

Answer 51

A person whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried.

The provisions are intended to encompass not only actual co-defendants, but also persons linked to the offending.

A person charged with burglary, both an accomplice who committed the burglary and the person who received the stolen goods would be an associated defendant under Sec 73.

Question 52

What is the sec8 Criminal Disclosure Act 2008 definition of the meaning of “relevant”?

Answer 52

information or an exhibit, that tends to support or rebut, or has a material bearing on, the case against the defendant.

Question 53

Section 41 of the evidence act 2006 incorporates ability to offer evidence of a good propensity. What does this allow the defendant to do?

Answer 53

Allows defendants to offer evidence about themselves perhaps for tactical reasons

Defendant offers propensity evidence that he has a criminal history as a burglar and was on the property to steal rather than a rape.

Defendant offers evidence of a neutral propensity e.g. evidence that the defendant does something regularly that may offer an alibi

Question 54

What is eligibility and compellability in terms of witnesses?

Answer 54

As a general rule, all persons are eligible to give evidence whether for the prosecution or defence. And all persons who are eligible are compellable to give evidence (they can be required to testify against their will).

Question 55

Q
Sec 73 - Compellability of defendants and co-defendants
Sec 73 provides that….

Answer 55

1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.

2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless -

a) The defendant is being tried separately or

b) The proceeding against the associated defendant has been determined

A proceeding has been determined if:
- The charge is withdrawn or dismissed
- The defendant was acquitted
- The defendant either pleaded guilty or was found guilty and had been sentenced or otherwise dealt with

Question 56

What conditions are there for a witness and refreshing memory in court?

Answer 56

Answer:
- Leave of the judge must be obtained
- The document must be shown to every other party in proceeding
- The documents have been made or adopted by a witness at the time when his or her memory was fresh
- The document must’ve been made by the witness or by another person in his or her presence and is assented to by the witness

Question 57

When a witness needs to refresh their memory during questioning, from a statement they have made, what must the prosecutor do?

Answer 57

Seek the leave of the judge to grant the request

Document must be shown to every party in the proceeding

Question 58

When does full disclosure occur?

Answer 58

Full disclosure occurs as soon as practicable after defendant pleads not guilty

Question 59

What is the basic rule in regards to the non-compellability of a defendant?

Answer 59

A defendant is an eligible but not compellable witness for either the prosecution or defence.

e.g he or she can give evidence but doesn’t have to.

Question 60

Sections 15 to 18 of Criminal Disclosure Act 2008 allow for withholding of information at all stages (initial, full and additional disclosure), if:

Answer 60

Prosecutor does not hold information and recorded form what is not a position of control of it (s15)

Likely to prejudice the maintenance of law (s16(1)(a))

Likely to endanger the safety of any person (s16(1)(b))

it is material prepared to assist in the contact of the trial prosecution (s16(1)(c)(i))

Communication between prosecutor and another person (email) (s16(1)(c)(ii))

Analytical or evaluate of material prepared (s16(1)(c)(iii))

Material subject to non-disclosure due to another enactment (s16(1)(d-f))

Disclosure likely to facilitate the commission of an offense (s16(1)(h))

The information that identifies all my lead to the identification of a witness or informant”s address (s17)