Other

Question 1

Define Evidence

Answer 1

“Evidence” is the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.
Evidence may be in 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 and when is relevant evidence inadmissable?

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” (s7(3)of the Evidence Act 2006).

Relevance:
All relevant evidence is admissible in a proceeding except evidence that is:
a) Inadmissible under the Act or any other Act
b) Excluded under this Act or any other Act

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

The “weight” of evidence is its 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 or contradicted by other evidence produced
* the veracity of the witness.

The “weight” is the degree of probative force that can be accorded to the evidence.

Question 7

Define Offer Evidence

Answer 7

Evidence must be elicited before it is “offered”: Merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition – s96(1) of the Evidence Act 2006. Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross-examination of a witness called by another party.

Question 8

Define Give Evidence

Answer 8

“Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence.
In a proceeding, evidence may be given:

• in the ordinary way either orally in a courtroom in the presence of a judge (or judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge; or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible, and it is the personal statement of the deponent or maker;
• in an alternative way – in the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss103-106 of the Evidence Act 2006, which provides for applications and directions regarding alternative ways of giving evidence;
• in any other way provided for by the Evidence Act 2006 or any other relevant enactment.

Question 9

Define Incriminate

Answer 9

To incriminate is 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 Proceeding

Answer 10

This means a proceeding conducted by a court, and any application to a court connected with a proceeding.

Question 11

Define Statement

Answer 11

This 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 12

Define Witness

Answer 12

This is a person who gives evidence and is able to be cross-examined in a proceeding.

Question 13

Define Hearsay Statement

Answer 13

This is 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. This definition means that out-of-court statements made by a “witness” are not excluded by the hearsay rule because the maker is available to be cross-examined. Such statements may still be excluded by a different rule. A statement offered for some purpose other than proving the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement.

Question 14

Define Veracity and list the 5 things the judge may consider in regard to veracity

Answer 14

This is the disposition of a person to refrain from lying, whether generally or in a proceeding.

In deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the judge may consider among other matters, whether the proposed evidence tends to show 1 or more of the following:
a) Lack of veracity on the part of the person when under a legal obligation to tell the truth (e.g previous proceeding or signed declaration).
b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity.
c) Any inconsistent statements made by the person
d) bias on the part of the person
e) a motive on the part of the person to be untruthful

Question 15

Define Propensity

Answer 15

Propensity evidence is evidence about a person’s 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 16

Define Direct Evidence

Answer 16

This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife).

Question 17

Define Circumstantial evidence

Answer 17

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

Question 18

Define Enforcement Agency

Answer 18

This refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department.

Question 19

Define Woolmington Principal

Answer 19

Woolmington principal – Presumption of innocence:

This principal establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all elements of the offence.

Question 20

Define Beyond Reasonable Doubt

Answer 20

R v Wanhalla – Beyond reasonable doubt:

“An honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.” The crown must prove the accused is guilty beyond reasonable doubt.

Question 21

Define Balance of Porbablities

Answer 21

Balance of probabilities:
Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities it must simply show that it is more probable than not.

Question 22

What is the purpose of evidence law?
(6 things)

Answer 22

Purpose of evidence law:
Purpose of the Act is to help secure the determination of proceedings by:
a) Providing facts to be established by application of logical rules
b) Providing rules of evidence that recognise the importance of rights under BOR Act
c) Promoting fairness to parties and witnesses
d) Protecting rights of confidentiality and other important public interests
e) Avoiding unjustifiable delay and expense
f) Enhancing access to law of evidence

Question 23

What is the presumptions of law?

Answer 23

Presumptions of law:
Inferences that have been expressly drawn by law from particular facts. Can be either conclusive or rebuttable.

Question 24

What is the presumptions of fact?

Answer 24

Presumptions of fact:
Those that the mind naturally and logically draws from the given facts. Eg. one presumes a person has guilty knowledge if they are in possession of recently stolen goods.

Presumptions of fact are simply logical inferences and so are always rebuttable.

Question 25

What is the general exclusion provision?

Answer 25

General exclusion provision:
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will:
a) have an unfairly prejudicial effect on the proceeding
b) needlessly prolong the proceeding

Question 26

What is hearing in chambers?

Answer 26

Hearing in chambers:
S15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a ‘hearing in chambers’, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a hearing in chambers are sometimes referred to as ‘preliminary facts’ or ‘preliminary hearing’.

Question 27

What are the exclusive rules of evidence?
(HOVIIP)

Answer 27

Exclusive rules of evidence:
- Veracity
- Propensity
- Hearsay
- Opinion
- Identification
- Improperly obtained evidence

Question 28

Define Propensity?

Answer 28

A tendency to act in a particular way or have a particular state of mind

Question 29

When can evidence of the Defendants veracity be offered?

Answer 29

The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:
a) The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue.
b) The judge permits the prosecution to do so.

Question 30

What are examples of lack of reliability of hearsay evidence?
(3 things)

Answer 30

Lack of reliability hearsay evidence:
a) Where the maker of a statement is not called as a witness and is unable ot be cross examined
b) concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
c) Danger that witnesses will make mistakes about the meaning or content of statements made by other people. Game of ‘Chinese whispers’.

Question 31

What are examples of reliability circumstances under s16(1)?
(5 things)

Answer 31

a) Nature of the statement
b) Contents of the statement
c) Circumstances that relate to the making of the statement
d) Circumstances that relate to the veracity of the statement
e) circumstances that relate to the accuracy of the observation of the person

Question 32

When can a witness be unavailable?

Answer 32

a) Dead
b) Outside of NZ and not reasonably practicable for them to be a witness
c) Unfit due to age, physical or mental condition
d) Cannot be found
e) Is not compellable to give evidence

Question 33

What is the general exclusionary rule?
(3 things)

Answer 33

a) Where a witness offers a bare opinion it holds little probative weight
b) there is a danger that a witness offering opinion evidence will ‘usurp’ that function of the tribunal of fact, which is to draw the necessary inferences from the fats presented in evidence. Could confuse the tribunal and prolong proceedings.
c) A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (e.g. opinion is based largely on propensity evidence).

Question 34

When is non-expert opinion evidence admissible?

Answer 34

Must fulfil two criteria:
1) Opinion must be the only way in which to effectively communicate the information from the fact finder.
2) The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 35

What qualifies as an expert?

Answer 35

An expert is a person who ‘has specialised knowledge or skills based on training, study or experience’. The judge must determine whether the expert witness is properly qualified to testify.

Opinions given by non-experts on matters calling for expertise will be inadmissible.
The expert is required to demonstrate to the court that they have the requisite qualification to be deemed and expert in the field in question.

The expert mat be qualified through formal study and training, from experience, or both. Evidence offered by an expert should be within their area of expertise.

Question 36

What must be verified before a summons is served?

Answer 36

1) Whether they are allowed to give evidence
2) Whether they are required to give evidence
3) Weather they can refuse to give evidence
4) What type of witness they will be

Question 37

What is a associated Defendant?

Answer 37

Person whom a prosecution has been instituted for.
a) an offence arises in relation to the same events as did the offence for which the defendant is being prosecuted.
b) an offence that relates to, or is connected with, the offence for which the defendants is being prosecuted.

As ‘associated defendant’ is someone against 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, or ‘that relates to, or is connected with,’ the offence which the defendant is being tried.

Question 38

Who is not compellable to give evidence?

Answer 38

The Sovereign, Governor General, and Sovereign or Head of State of a foreign country, are not compellable to give evidence.

Question 39

What are types of privileged information?

Answer 39

1) Communication with legal advisors
2) Solicitors trust accounts
3) Preparatory materials for proceedings
4) Settlement negotiations or mediation
5) Communications with ministers of religion
6) Information obtained by medical practitioners and clinical psychologists

Question 40

What is an informer?

Answer 40

An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informers identity.

A person is an informer if:
- They have supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of a law enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that their identity will not be disclosed.
- Is not called as a witness by the prosecution to give evidence relating to that information.
- Informer may be a member of the police working undercover.

Question 41

What offences is corroboration requried?

Answer 41

Evidence must be corroborated with the following:
1) Perjury
2) False oaths
3) False statements
4) Treason

Corroboration - Child complaints:
S125(1) prohibits corroboration warning in cases involving child complaints where the warning would not have been given had the complainant been an adult.

Question 42

What is the judges role in a trial by jury?

Answer 42

1) Decide all questions concerning the admissibility of evidence
2) Explain and enforce the general principals of law applying to the point at issue
3) Instruct the jury on the rules of law by which the evidence is to be weighed once submitted

Question 43

How must a witness under 12 make an affirmation

Answer 43

• Be informed by the judge of the importance of telling the truth and not telling lies AND
• After being given that information, make a promise to tell the truth before giving evidence.

Question 44

Who may comment on the Defendants right to silence?

Answer 44

In a criminal proceeding, no person other than the Defendant, Defendants counsel or the Judge may comment on the fact the Defendant did not give evidence at their trial.

Question 45

What is the issue with leading questions?

Answer 45

The probative on leading questions is that it will produce unreliable evidence for the following reasons.
1) There is a natural tendency for people to agree with suggestions put to them.
2) Counsel asking leading questions of their own witness can more easily elicit the answers which they wish to receive, reducing the spontaneity and genuineness of the testimony.
3) There is a danger that leading questions will result in manipulation or construction of the evidence through collusion, conscious, or otherwise between counsel and the witness.

Question 46

When are leading questions permitted?

Answer 46

a) Question relates to introductory or undisputed matters
b) question is put with the consent of all parties
c) Judge can exercise judges’ discretion and allow the question

Question 47

What happens if you want to refresh memory in court?

Answer 47

1) Leave of the judge must be granted.
2) Document must be shown to every other party in the proceeding
3) Document was ‘made or adopted’ by a witness ‘at a time when their memory was fresh’.

Question 48

What is the previous consistent statement rule?

Answer 48

A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement:
a) Responds to a challenge that will be or has been made to the witnesses veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of intervention of the witness.
b) Forms an integral part of the events before the court
c) consists of the mere fact that a complaint has been made in a criminal case

Question 49

How to question a hostile witness?

Answer 49

1) Asking leading questions
2) Asking questions designed to probe the accuracy of memory and perception
3) Asking questions as to prior or inconsistent statements
4) Other challenges to veracity, including evidence from other witnesses

Question 50

Define Hostile witness

Answer 50

1) Exhibits or appears to exhibit lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge
2) Gives evidence that is inconsistent with a statement made by that witness in a matter that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness
3) Refuses to answer questions or deliberately withholds evidence

Question 51

What is the purpose of cross examination?

Answer 51

1) Elicit information supporting the case of the party conducting the cross examination
2) To challenge the accuracy of the testimony given in evidence in chief.

Question 52

What factors does the judge consider when questions are unaccaeptable?
(5 things)

Answer 52

a) Age and maturity of the witness
b) Any physical, intellectual, psychological, or psychiatric impairment of the witness
c) The linguistic or cultural background or religious beliefs if the witness
d) Nature of the proceeding
e) In the case of a hypothetical question, if the hypothesis will be proved by other evidence during the proceeding

Question 53

What are the limits on re-examination?

Answer 53

After cross-examination by the opposing counsel, the party who called the witness may re-examine that witness for the purpose of clarifying or qualifying any issue raised during cross examination, but may not be questioned on any other matter, except with the permission of the Judge.

Question 54

When can evidence in rebuttal be admitted?

Answer 54

Evidence called by either party after the completion of their own case in order to rebut something arising during trial, can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence:
1) Relates to a purely formal matter
2) Relates to a matter arising out of the conduct of the defence, the relevance of which would not reasonably have been foreseen (most common ground for leave to be granted)
3) Was not available or admissible before the prosecutions case was closed
4) Is required to be admitted in the interests of justice

Question 55

When can the judge give warnings?

Answer 55

In a criminal proceeding with a jury, the judge must consider weather to give a warning whenever the following evidence is given:
a) Hearsay evidence
b) Evidence of a statement by the defendant if that evidence is the only evidence implicating the defendant
c) Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant
d) Evidence of a statement by the defendant to another person made while both the defendant and the other person where in prison, police station, or other place of detention
e) Evidence about the conduct of the defendant if that conduct id alleged to have occurred more than 10 years previously.

Question 56

What are some specifics about directions about evidence given by children

Answer 56

In general should be treated the same way as evidence given by adults. Thus prohibits:
a) the judge form giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant.
b) any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinize children’s evidence with special care, or that children generally tend to invent or distort.

Question 57

How do you address the judge?

Answer 57

Your Honour, Sir, Ma’am

Question 58

How can you refer to your notebook?

Answer 58

a) Ask the courts permission
b) Introduce the material properly (“I interviewed the defendant and wrote the answers in my notebook at the time”)
c) Defence and jury are entitled to view your notes so seal off other entries
d) Only can refresh memory. Cannot read entire entry unless you have permission.