Chapter 8: Law of Evidence

Question 1

1. What is the Woolmington Principal in relation to the presumption of innocence?
2. To what standard do they have to prove the case?
3. Extra notes : what do the defence have to do, in simple terms?

Answer 1

1. Burden of proof lies with the Prosecution in relation to all the elements of the offence.
2. Beyond Reasonable Doubt
3. Defence do not have to prove anything, but have the practical obligation to point to some evidence which suggests reasonable doubt exists about the conclusions drawn from prosecution evidence.

Question 2

1. What is a situation where the Defence offers something other than “i didn’t do it, i wasn’t there… etc? What is this called?
2. Do the prosecution have to negate all various possible defences available ?
3. What happens to the Evidential Burden then?
4. Can the Judge/jury consider this “self defence” or other defence? And what must happen for this to be considered?
5. What do the Jury ALWAYS have to conclude?

(scroll)

Answer 2

1. Situation may arise where Defence wishes to “put up a defence” rather than stating they just “didn’t do it, wasn’t there, didn’t intend that.” If the accused relies on ‘statutory defence’ (i.e. self defence), HE carries an ‘evidential burden’ in respect of indictable offences.
2. Prosecution doesn’t have to negate all possible defences within the prosecution case.
3. The evidential Burden then passes to the Defence (come up with evidence to prove facts).
4. For this defence to be considered, it has to be made a ‘live issue’ by the Defence. Once it’s live - Prosecution can then destroy the proffered defence, as they STILL retain the Burden of Proof.
5. Have the prosecution proved it’s case?

Question 3

Exceptions to the Woolmington Principal - burden of proof? x3

Answer 3

1. Defence of Insanity - burden lies with defence.
2. Particular issues where the burden lies with the defence - i.e. ID evidence (proving it was unreliable) etc.
3. Regulation of everyday conduct tending to endanger public - ie. maritime or aviation safety. Here, there is a no-fault defence where burden lies with defendant. (ie. they have to prove they are NOT at fault - i.e. guilty until proved innocent)

Question 4

Standard of proof required for Prosecution… and for Defence?

Answer 4

Pros: Beyond Reasonable Doubt.

Def: any element where the defence bears the burden of proving need only be proved “on the balance of probabilities.” (dammit)

Question 5

Case Law, beyond reasonable doubt - R v Wanhalla

ie. what does BRD mean really… what would a judge say to the jury about BRD?

What is the definition of a ‘reasonable doubt’…?

Answer 5

High standard of proof. if, at the end of the case, you are sure the accused is guilty. Not probably, or very likely… Don’t have to prove to an absolute certainty …you have to be sure.

A ‘reasonable doubt’ is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all the evidence.

Question 6

What does Balance of Probabilities mean?

Answer 6

More probable than not.

Question 7

What is definition of Corroboration?

What is the general rule about ‘corroboration’ for what you need to prove a case?
one paragraph broken into 5 parts

Answer 7

Corroboration = independent evidence which implicates the defendant in the crime…
(ie. text data, stolen property found at house… etc.)

• One witnesses testimony,
• without corroboration,
• where satisfied reliable and accurate, and
• proves ingredients to required standard.
• will suffice to prove case.

Question 8

What types of offence is corroboration a MUST? x2

Can unsupported evidence of one witness suffice?

Answer 8

1. Perjury and related offences (false oaths, false statement or declaration…)
2. Treason.

in these cases unsupported evidence of one witness is insufficient to support conviction.

Question 9

What is the situation re. warnings from judges re. corroboration?

Note Sn122 (when judges may warn juries)
Note Sn125 (re. child evidence)

(scroll)

Answer 9

NOT required …
Neither a general warning about dangers of relying on uncorroborated evidence, NOR a direction relating to the ‘absence of corroboration’ is required.

Sn 122 states that judge MAY warn jury about unreliable evidence (for perjury or treason). Judge may warn jury of the need for caution.

Sn125 prohibits ‘you need corroboration’ warning with child complainants where the warning wouldn’t have been given had the complainant been an adult.

Question 10

Identification Evidence - Definition of Identification Evidence? x2

Answer 10

• Assertion by person based on what they saw to the effect that a defendant was present/near where an act constituting direct/circumstantial evidence of the commission of an offence was done, at/about the time, or
• an account (oral or written) of the above

Question 11

Identification Evidence
What 2 other things are covered in the ‘broad scope’ of identification evidence?

Give an e.g. (maeva)

Answer 11

• Covers ID of people there other than suspect,
• Covers evidence asserting that suspect was there at the time…

ie. Op Maeva - Wayne’s car - saw his form running to car… “F-You Wayne!”

Question 12

What does Sn4 re. Identification Evidence cover (x2)
…not cover? (x1)

R___ evidence

O____ evidence

not R____ evidence (R v Turaki)

Answer 12

RECOGNITION: Does cover recognition evidence. (eg. I recognised him from school)

OBSERVATION: Does cover observation evidence - where defendant doesn’t deny being there, but denies doing what is alleged.

NOT RESEMBLANCE: Doesn’t cover resemblance evidence. (R v Turaki - person shares features of another )

Question 13

Visual ID Evidence - Sn45.
1. Formal Procedure followed… is evidence admissible?
What does Defence have to prove?

2. Formal Procedure not followed… is evidence admissible?
   What does prosecution have to prove?

Answer 13

1. If a Formal Procedure was followed, or
   - Good reason not to … = admissible
   * Defence has to prove on the B.O.P the evidence is unreliable.
2. Formal Procedure not followed, and
   - No good reason why not… = inadmissible
   * Prosecution has to prove B.R.D the ID is reliable.

Question 14

What are the effects of Sn45 re. Visual Identification Evidence?

• Obtained by formal procedure, admissible or not?
• No formal procedure, admissible or not?
• To whom does this V.ID Ev apply to?
• What is this Sn designed to prevent?
• What is the focus on in this Sn?

(scroll)

Answer 14

• V.ID.Ev, obtained by formal procedure by enforcement officers is admissible unless Def. proves unreliable.
• If no formal procedure followed, any V.ID.Ev resulting from informal procedure will be inadmissable unless good reason for not following formal procedure or pros can prove circumstances would have still produced reliable Identification.
• This provision only applies to V.ID.Ev of Defendant, not ID’s of other people.
• This is to prevent ‘Dock Identification’.
• Focus is on whether or not a formal procedure was undertaken.

Question 15

re. Visual ID Evidence - Sn45 introduces a burden of proof on the defendant… when?

What is the Defendant’s standard of proof?

Answer 15

Should the defendant wish to challenge the reliability of Visual ID Evidence gained from formal procedure.

BOP… balance of probabilities.

Question 16

What is the prosecution’s ‘standard of proof’ when an informal procedure is introduced and its reliability tested?

It is inadmissible unless the prosecution can prove, what?

Answer 16

BRD - beyond reasonable doubt.

Inadmissible unless prosecution proves BRD that the circumstances in which the ID was made HAVE produced a reliable ID.

Question 17

What will courts take into account when assessing reliability of ID evidence? x3

Answer 17

1. Witness (eyesight etc)
2. Offence factors (lighting, traffic…)
3. Conduct of procedure.

Question 18

Formal ID Procedure Requirements? x 8

Answer 18

• Procedure should take place during investigation or soon after arrest.
• ID Parade conducted by Sgt+.
• Parade or Montage must ‘avoid any material risk of predisposing witness to ID the defendant’
• 8 people - similar age, race, appearance etc.
• Suspect entitled to refuse to take part and have solicitor present.
• Witnesses told person they saw may or may not be present.
• All id’s must be recorded…
• written or pictorial record made of procedure.

Question 19

What are ‘good reasons’ for not following a formal procedure? (x6)?

Answer 19

a) Refusal to participate - right to refuse to permit photo. - where one already exists, we should use that.
b) Singular in appearance - where a person’s ‘singular appearance’ is so marked they can not be disguised… court will need evidence of this (ie. big afro)
c) Change of appearance - only relevant where delay between offending and arrest (where photo taken)

d) No anticipation that ID would be an issue - no officer could reasonably anticipate that ID would be issue at trial.
Recognition evidence - just cos they recognise them doesn’t mean automatically dispense with formal ID.

e) ID’s made shortly after the offence - ie. witness points out offender to police arriving at the scene. (op tempo). Must be made in the course of initial investigation…
f) Chance meetings - ie. bumps into their rapist at supermarket. Then, not required to do formal ID (can’t be orchestrated chance meeting tho).

Question 20

What are the 2 case laws about re. ‘recognition’ and formal procedures?
R v EDMONDS
R v HARNEY

Answer 20

EDMONDS (pikelet): Recognition of the suspect (stranger) by eyewitness with just a glance, is unlikely to satisfy the decision to NOT do formal ID. There are unlikely to be many instances where a ‘fleeting glance’ of stranger could satisfy reasons for NOT completing a formal procedure. ie. prosecution have to prove BRD that this ‘fleeting glance’ is reliable. (unlikely to be able to prove this)

HARNEY (tea): If defence thinks it’d be ‘useful’ to have ID parade to prove witness is unreliable, this does not constitute ‘good reason’ to NOT do a formal ID. Formal ID Procedure should take place during the investigation or soon after arrest.

Question 21

1. Definition of ‘voice identification evidence’ ?
   ie. give an example.
2. Burden of proof for Voice.ID.Ev.?
3. Admissibility of Voice ID. Ev?

Answer 21

1. Assertion by person to the effect that a voice, heard first hand or thru mechanical/electronic device (phone), is the voice of the defendant or other connected with an act constituting evidence of offence.
   ie. guys talking about drugs on the phone.
2. Prosecution only have to prove voice ID evidence is probably reliable. Lesser standard of proof.
3. Voice ID evidence is ‘inadmissible’ UNLESS prosecution proves on BOP that circumstances where ID was made have produced a (probably) reliable ID.

Question 22

Defendant’s statements and their admissibility :

• against co-defendant?
• when are they inadmissible against THE defendant? x3rules

Answer 22

Evidence offered by prosecution of a statement made by Defendant is not admissible against co-defendant.

Not admissable against DEFENDANT under 3 rules:

1. Reliability rule - Sn28
2. Oppression rule - Sn29
3. Improperly Obtained evidence rule - Sn30

Question 23

Reliability Rule re. Exclusion of Unreliable Statements, Sn 28 Evidence Act.

FIRST: When does this happen? x2
THEN: what must Judge do?

What are the circumstances that could adversely effect a statement’s reliability? x4?

(scroll)

Answer 23

Happens when prosecution offers Def’s statement, if:

• Def. raises issue of unreliability and informs the judge/prosecution, or
• Judge raises the issue of unreliability and informs prosecution of grounds

THEN : Judge must exclude statement unless satisfied on BOP that circs when statement was made were not likely to adversely effect its reliability.

Circs inlcude:

• phys, mental psych condition of def.
• mental, phys, intellectual disability of def.
• nature of qns - multiple, intellectual, over &over. etc…
• nature of threats, promises,etc…

Question 24

2 x exceptions to the Reliability Rule re. Defendant’s statements? (When will they NOT be excluded…)

Answer 24

no exclusion if:
1. Prosecution wants to use stmt as evidence of Def’s Physical, Mental, Psychological condition at time stmt made. (ie. he said he saw aliens in the interview room)

2. Prosecution offers stmt only “as evidence that statement was made…”

Question 25

Sn 29: Oppression rule
Exclusion of statements effected by oppression. What action does this follow if Def. or Judge raises the issue of whether the stmt was effected by oppression? 4 points.

What may the judge take into account in point 4? x4

Answer 25

1. If defendant or judge raises the issue of whether the statement was effected by oppression.
2. Judge must exclude statement unless satisfied B.R.Doubt that it wasn’t influenced by oppression
3. Irrelevant whether statement was true or not.
4. Judge may take into account
   - phys, ment, psych condition of defendant when stmt made
   - mental, intellectual, phys disability of def.
   - nature and manner of qns
   - nature of threat, promise, representation made

Question 26

What is the definition of OPPRESSION?
OVID, and
x1

How is this judged, from who’s perspective?

Answer 26

a) Oppressive, Violent, Inhuman or Degrading conduct towards def. or another, or
b) threat of conduct or treatment of that kind.

oppression is to be judged from the perspective of the defendant - subjective.

Question 27

Sn30 Improperly Obtained Evidence.

1. Who raises the issue?
2. What must judge conclude (what 2 tests)?
3. What does the court give regard to regarding whether to exclude or not? x8

(Scroll)

Answer 27

1. Evidence offered by prosecution, where the Defendant or Judge raises the issue of whether it was improperly obtained.
2. Judge must find on BOP whether ev. improperly obtained and if yes, whether exclusion of the ev. is proportionate to the impropriety… balancing the need for effective justice system.
3. court has regard to:
   - importance of right breached.
   - nature of impropriety, deliberate or reckless
   - nature and quality of ev. obtained
   - seriousness of offence
   - whether other investigative techniques available
   - whether there are other alternative remedies to exclusion
   - whether impropriety necessary to avoid physical danger to police etc.
   - whether urgency of obtaining ev.

Question 28

What is the definition of Improperly Obtained Evidence?

Evidence obtained… x3

Answer 28

Evidence obtained:

1. In consequence of breach of enactment or rule of law by person to whom NZBOR applies
2. In consequence of a statement made by def. that would be inadmissible if it were offered in evidence by the prosecution (i.e. if a statement is pivotal, say, a knife is found BECAUSE of that statement, then if the statement is excluded then knife is excluded)
3. Unfairly - ie. if evidence relates to the way the evidence was obtained. (i.e. threatened to tell family they were sexo if they don’t cough)

Question 29

When can a Defendant apply for exclusion of Improperly Obtained Evidence? x2

Answer 29

• Can apply whenever improperly obtained evidence is offered against the defendant who asks for its exclusion.
• No requirement that Def can only apply for exclusion cos breach of his own right. STRONGER if he’s asking for a breach relating to HIMSELF tho.

Question 30

R v Te Kira - What is understood re. ‘causation’ re. obtaining evidence and determining if evidence is excluded or not?

Answer 30

What is both necessary and sufficient is that there be a real and substantial connection between the violation and the obtaining of evidence.

Question 31

Practice note on police questioning …
What can police do and not do re. questioning x 5?

(not the TYPE of qns, but the rules around questioning)

Answer 31

1. Police investigating offence may ask qn’s of any person they think might have useful info, whether suspect/not, not suggest its compulsory to answer.
2. Sufficient to charge person, or speaking to person in custody, cautioned before answering qn’s, “right to refrain from making stmt and to remain silent, consult and instruct lawyer …. anything said recorded and may be ….”
3. Qns not amount to X-examination.
4. Whenever questioned about stmts made by others or other ev., substance of stmts or nature of ev. must be explained.
5. Stmt recorded by DVD unless declines… then writing or audio, opportunity to review & add/correct errors, sign it.

Question 32

What was held in R v Chetty re. police questioning and the police practice note?
(x2points)

Answer 32

CHETTY - not just a CHAT

• Practice note does not create rights, but sets out ‘standards’ of how police conduct themselves
• Requires a record to be created. (i.e. written, dvd…etc)

Question 33

What happens if there is a breach of the practice note on police questioning?

Answer 33

• The breach must be taken into account by judge, but won’t necessarily result in inadmissibility.

Question 34

Why is there such a focus on reliability of eyewitness evidence? x2points

Answer 34

Because of the inherent potential for unreliability of both visual and voice identification. Memories are prone to incompleteness, distortion and forgetfulness…

Care must be taken to elicit the most reliable evidence by means of fair and transparent procedures.

Question 35

Who should conduct an identification parade?

Who shouldn’t?

Answer 35

Sergeant or Senior Sergeant.

OC Case can be present but must not take part in the proceedings.

Question 36

R v Ah SOON - re: formal ID procedures.

1. Re. considering means/resources.
2. What is the guiding principal in arranging a formal ID procedure? (x2really)

Answer 36

1. AH SOON: Formal procedures, consider means and resources, but a lack of resources cannot be taken too far.

• Whether it will avoid any material risk of predisposing the witness to identify the defendant.
• Whether the procedure will produce a reliable ID.

Question 37

What are some of the “good reasons” for not following a formal ID procedure - either formal parade/photoboard?
x6

(scroll)

Answer 37

a) Refusal to participate - where photo or video already exists of the person, and represents true likeness, refusal will not constitute a ‘good reason’ as the photo or vid can be used.
b) Singular in appearance - can’t comply with requirements they have to all look the same. Evidence needed by court before this reason accepted.
c) Change of appearance - only relevant where delay between offending and arrest/photo taken.
d) No anticipation that ID would be an issue - no officer could reasonably anticipate ID would be issue at trial.
e) Identifications made shortly after the offence - ie. witness points out offender to officer arriving at scene of street fight (TEMPO)
f) Chance meetings - can’t be orchestrated, must be chance - i.e. saw rapist at supermarket

Question 38

What was held re. R v Hawea with respect to Oppression Rule?

x2 points

Answer 38

• Held as most serious ground of objection to the admissibility of a defendant’s statement.
• Once foundation is found to suggest oppression, prosecution must satisfy the judge, B.R.Doubt, that the statement was NOT influenced by oppression.