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cpk.30/8/22 > C8 - Evidence > Flashcards

C8 - Evidence Flashcards

1
Q

What is relevance?

OWV

A
  1. Whole body of evidence given orally,written, and visual.
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2
Q

Rules of evidence?

How, who, type

A

How evidence is given. Who may give evidence. What type of material is given as evidence.

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3
Q

Most evidence of law can be found in what act?

A

Evidence act 2006.

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4
Q

What is relevance?

T, P/D, A,C,D,P

A

Tendency to prove/disprove anything that is of the consequence to the determination of proceedings

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5
Q

What is probative value?

H,S&C,E,A, P/D,I, C

A

How strongly evidence points to inference (conclusion) it supports

How important evidence is to the issues in the trial determines level of PV piece of evidence holds.

It’s how strongly and centrally the evidence assists proving / disproving issues and case

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6
Q

What is unfair prejudicial? 4.

J G M W Des
SI or SE
ME
UE I R

A

-The judge gives more weight than deserves.
-Speculates inappropriately of meaning or significance of evidence.
-Mislead by evidence.
-Use evidence for illegitimate reasons

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7
Q

Title; giving evidence

What’s the meaning of giving evidence and in an ordinary way / alternative way?

A
  1. Ordinary way: orally in court, affidavit filed in court, persecution/defense consent - happy.
  2. -In court can’t see defendant, outside Court
    - video made before court, audio/visual
    -applications for evidence 2002 act
    -any other way and where evidence is used overseas and in criminal cases.
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8
Q

Definition of hearsay?

A

Statement made in person other than the witness, offered as evidence to prove the truth of its contents. It’s division; 1.adequate statement and not excluded by his side because maker is available for cross-examining

  1. A statement offered for some purpose then to prove the truth merely to show a statement made, is not hearesay statement.
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9
Q

What is the meaning of veracity?

A

Disposition of a person to refrain from lying

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10
Q

Meaning of propensity?

A

Persons tendency to act in a particular way or particular State of mind.

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11
Q

Sub Title: Purpose of evidence Law

What’s the aim of S6 Evidence Act 2006?

H S, JD, P T O S in S6.

A

1.It’s it’s aim is to “help secure the just determination of proceedings” through the objectives set out in S6.

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12
Q

S6 - What are these six objectives?

LR,BOR,F,PC-PI,A.U.E.D,EALE,

A
  1. Facts to be established by logical rules.
  2. The importance of the Bill of Rights
    3.Promote fairness to parties and witnesses
  3. Protect confidentiality, and other important public interests.
  4. Avoid unjust expense in delay.
  5. Enhance access to the law of evidence
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13
Q

Sub title: principles governing the rules of evidence.

What is the fundamental condition for the admissibility of evidence in relation to relevance?

A

It must be relevant. Evidence that is not relevant, will not be admissible

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14
Q

S7 - what are the three fundamental principles that make evidence admissible?

All E Ad, Ex E -
I, E,
NR,NA
E,I,R- H,T,PD,A,C,D,P

A

All evidence is admissible in a proceeding except evidence that is:
(a) inadmissible under this act or any other Act
(b) excluded under this act or any other Act

  1. Evidence that is not relevant it not admissible In a proceeding
  2. Evidence is relevant if it has tendency to prove or disprove anything that is of consequence to the determination of proceedings
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15
Q

S7 - what are the two types of relavant evidence? What does it exclude?

D, C, Ex M

A

Direct evidence & circumstantial evidence. It excludes any extra matter that do not relate to the issue determined by the court.

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16
Q

What can a judge decide to do if they believe evidence is relevant.

A

Subject to any other legal rules of inadmissibility or exclusion, party will be untitled to present the evidence in the proceedings.

Relevance is a necessary but not a sufficient condition of admissibility

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17
Q

Sub title: fairness, and the general exclusion under section 8 evidence act 2006.

What are the two ways exclusion arises?

U P
O C M A A D U
OB-U & I M
**CON

A
  1. Unfair prejudice
  2. Obtained in circumstances that make admission against defendant unfair.

Most obvious example obtained by unfair and improper methods. “Confession” itself may be impeccable evidence But the way in which it was obtained may lead to exclusion under fairness discretion.

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18
Q

Sub title: S8 general exclusion

How does legislation define this?

J Ex E PV OW R E W:
UP
NPP - JMLT- 20W
VE OW R E UPE
D O A D

A
  1. The judge excludes evidence if it’s PV is outweighed by the risk of the evidence will:

(a) have an unfair prejudicial effect on the proceeding
(b) needlessly prolonged the proceedings. Help judge manage the length of trial ensure fairness of proceedings. Eg; defendant wishes to cool 20 witnesses to give evidence. Judge can use this to limit the evidence to feel witnesses

  1. Whether the value of evidence is outweighed by the risk that the evidence will have
    an unfair prejudicial effect, judge must take into account the right for the defendant to offer affective defense
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19
Q

Sub title: S9 - Evidence Act 2006… Admission by agreement.

What does this Act allow?

A
  1. It allows admission or events even if it’s not admissible but the parties agree.
  2. However the judge May decline to admit the evidence.
  3. Or may not agree to admit it in the form agreed with by the parties. (R v Hannigan)
  4. Eg: breaching S8.
  5. This enables both parties to admit so they don’t have to be proved, example - expert evidence is not in dispute
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20
Q

Title
Burden and standard of proof, corroboration and warnings.

What is the Woolmington principle?

A

It is the fundamental principle in criminal law -“ the presumption of innocence, innocent till proven guilty” the burden of proof lies clearly with the prosecution in all elements of the offences.

Persecution bears the ultimate burden of proving the case beyond reasonable doubt

This means that defense does not need to forward any sort of case at all.

The burden of proof remains where the case puts it with the prosecution

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21
Q

What is - evidential burden?

A

This is the term used when the defence wants to give an explanation for the charges against him or her. Eg defendant acted in self defense.

Self-defense cannot be left to the jury or the judge unless made as a live issue by defense.

However once it’s made as a live issue, this opens up the prosecution s to destroy the defenses they retain the burden of proof.

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22
Q

What’s the exception to “Woolmington principle?”

A
  1. The legal burden is placed on the defendant for example where the defendant wishes to rely on the defense of insanity.
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23
Q

What offences doesn’t the WP not apply too?

A

Public welfare regulatory offenses

Example - offenses relating to Maritime and aviation safety. Courts have developed a no-fault defense, with the burden of proof on the defendant

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24
Q

Sub title: Standard of proof

  1. What prosecution burden of proof?
  2. What is the defensive burden of proof?
A
  1. Legal burden must be discharged “beyond reasonable doubt”
  2. The defense bears the legal burden of proving on the “balance of a probabilities”
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25
Q

Sub title: Beyond reasonable doubt.

In relation to the Court of appeal in R v Wanhallal (2007) what assistance was advised to juries after reviewing overseas research and models?

High standard?

A

Beyond reasonable doubt is a very high standard of proof which the crown will have met only if, at the end of the case, the Jury is sure that the defendant is guilty

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26
Q

Sub title: balance of probabilities.

What must the defense simply show in relation to proving a particular element such as insanity, on the balance of probabilities.

A

It must simply show that it is more capable than not to carry out the offence.

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27
Q

Sub title: Corroboration S121 Evidence Act 2006

What does it govern?

A

The general approach and exceptions to corroboration.

In general a witnesses unsupported testimony is enough to prove a case with a court satisfied that it’s reliable and accurate and provide the proof to the required standard.

However it may not act upon the evidence of just one witness.

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28
Q

What are the two offenses in which unsupported evidence for a witness is insufficient to support a conviction?

A

1.Perjury and related offenses
2.Treason

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29
Q

S121(2) What does this provide in relation to corroborating evidence

A

No requirement for either general warning or direction to absence of corroboration.

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30
Q

S122 corroborating evidence; if judges opinion uncorborated evidence is unreliable, what may he direct parties to do?

A

Warn the jury for the need to Caution

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31
Q

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

True or false

A

True

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32
Q

S8 “ Unfair Prejudice” will typically refer to….

A
  1. Trier of fact will give evidence more weight than it deserves.
  2. Be misled by evidence
  3. Speculate and inappropriately about the or significance of evidence
  4. Use evidence for an illegitimate purpose
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33
Q

Title:
The trial process I - Questioning witnesses and presenting the case

Sub title: the adversarial system

What are the essential features of this system?

A
  1. Facts and evidence emerge by means of questions put my prosecution or defence to witnesses called by them.
  2. It’s up to each party to decide what witness to call, the order, what question should be asked.
  3. Each party has the right to test the testimony through cross-examination
  4. The judges function is to ensure that the evidence is produced according to the rules
    of admissibility
  5. The defendant does not have to do anything to assist the prosecution with evidence, they may be silent and demand the prosecution prove its case beyond reasonable doubt.
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34
Q

Sub title: Oaths and Affirmations

What must a 12-year-old be informed of before being questioned in a trial? 2

A
  1. The informed by the judge the importance of telling the truth and not telling lies
  2. Must, after given the information, make a promise to tell the truth before giving evidence
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35
Q

Sub title: the conduct of trials

The criminal procedure Act 2011 governs the conduct of all trials.

  1. Pros open the case and calls witness, followed by defense opening calling of witnesses
  2. Court mat give defendant leave to make an opening statement before the prosecution cause
  3. The defense may call witnesses immediately after a prosecution witness (previously only applied witnesses)
  4. This is designed to assist the jury in building up a story about what happened and how evidence fits together.

True or False?

A

True
1. Prosecution open, calls witnesses
2. Court give defendant leave make opening statement
3. Defense calls witness immediately
4. Designed to build story and how it fits together.

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36
Q

Sub title: S84 of the evidence act 2006 further provides: Examination of witnesses

What does this section of the act provide? 2

A
  1. The judge directs in any proceedings:
    (a) witness fish gives evidence in Chief
    (b) after that, the cross examined by all parties
    (c) after the cross-examination, witness may be re-examined.
  2. If it witness gives evidence in an affidavit or written statement in court, it’s treated for the purpose of the ACT as evidence given in Chief.
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37
Q

How are Jury trials generally run - 8 steps?

Note: becoming increasingly common for defense council to jump in between 2 and 3 and provide a brief statement. This is to make the jury aware of what the case is about before it is any evidence.

A
  1. Judge gives brief opening instructions, role of the jury, mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof
  2. Crown opens, prosecutor provides an explanation of the charges, reiterates the burden and standard of proof.
  3. Each prosecution witness is called and questioned by the prosecutor (evidence in chief) defence has opportunity to question and challenge testimony (cross examination) prosecution may question to clarify and qualify. (Re-examined)
  4. If defense intends to call evidence, It will do so at the end of the crown case. Just simply consists of giving statements about the role and task of the jury and the burden of proof. It may go further and provide an outline of the evidence to be called.
  5. The defense then presents its case by calling It’s witnesses who are subject to the process of evidence in Chief, cross-examined and re-examined it set up above.
  6. The crown concludes when making a closing address to the jury. Intended to summarize the case for prosecutions. No new information to be introduced or new issue raised during this closing address.
  7. After that, defence makes a closing address to jury. This is for the purpose of summarising the defence case.
  8. Finally the judge sums up the jury before it retires to consider it’s verdict
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38
Q

Sub title: refreshing memory

(a) refreshment of memory in court.

What are the 4 conditions designed to ensure the accuracy of the document must be satisfied in refreshing memory in court?

A
  1. Leave of the judge must be obtained
  2. Document shown to every other party in the proceedings

3.
-Made or adopted by a witness at the time when his or her memory was fresh
-wether the document was made for the memory was first depends on circumstances of the individual case

Non exhaustive set of factors that can be considered are:
- significance of the events to the witness
-time lapse between the events in the making of the document
-evidence from witness about the freshness of the memory
-detail and lucidity of the recollection recorded in the document

The Court upheld a decision that a statement made 6 weeks after the event it could still be a document made or adopted at the time when the witnesses memory was fresh

  1. Document must have been made by the witness or another person acting on the witness behalf in his whole presence and assented by the witness
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39
Q

S90(7) what does this section provide in relation to previous consistent statements of a witness?

A

It provides that previous consistent statements of a witness are admissible with circumstances relating to statements that provide reasonable assurance that it’s reliable and provide the court with information that the witness is unable to recall.

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40
Q

S90 what does this section govern in relation to refreshing memory while giving evidence?

A

It opens the process of a witness refreshing memory, as opposed to the admissibility of the document used.

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41
Q

I witness who wishes to refresh memory in court cannot consult a document excluded under section
28 unreliable statement
29 statements influenced by oppression
30 and probably obtained evidence

True or false

A

True

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42
Q

Sub title: (b) refreshment of memory out of court

What’s the requirement in relation to refreshing one’s memory out of court?

A

The requirement is simply that the document relates to matters which are within the witness and knowledge

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43
Q

Because the testimony in court is regarded as based wholy on the witness’s own memory the document used cannot be admitted as evidence and cannot be subject of cross examination.

True or false

A

True

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44
Q

What have the courts made clear in relation to prosecution witnesses refreshing the memory prior to trial from a written statement?

A

The defense should be advised, if requested statement should be made available.

The court has extended this requirement to police officers refreshing memory from their notes prior to testify.

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45
Q

Sub title:S4 Hostile witnesses

A hostile witness is one who -

A
  1. Exhibits or appears to exhibit lack of veracity when giving evidence unfavorably to the party which the witness supposed to have knowledge of.
  2. Gives evidence that is inconsistent with the statement made by the witness in the manner intended to be unhelpful to the party who called the witness
  3. Refuses to answer questions or deliberately withhold dividends.
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46
Q

Hostility is not demonstrated by the mere fact that the witness has given evidence that is inconsistent with another statement he or she has made previously.

An actual or parent intention to be unhelpful to the party calling the witness must be also present

True or False

A

True

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47
Q

The supreme court noted in Hannigan v R that inconsistency / even a stark one / does not in end of itself haha necessarily demonstrate hostility.

True or False

A

True

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48
Q

There’s no restrictions to a party from calling a witness who is known to be hostile to the party

True or false?

A

True

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49
Q

Sub title: Pre-trial disclosure

Criminal disclosure act 2008 codafies and reforms disclosure in the proceedings (which include charges before the youth court and appeals but does not include matters ancillary to proceeding, such as applications for bail or name suppression.)

True or false

A

True

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50
Q

Sub title: disclosure by the prosecution

Initial disclosure

**Note: occures no later then 15 working days after commencement of proceedings

What are the six documents needed for initial disclosure?

A
  1. Caption summary
  2. Charging document
    3 summary of Rights for the defendant to apply for the information before entering plea
  3. the maximum or minimum penalty for an offense
  4. Previous convictions
  5. Previous convictions when the defendant was a youth
51
Q

The defendant may apply for further information after commencement of proceedings which must be disclosed as soon as practicable.

What are the eight documents that may need to be further disclosed?

A
  1. Names of witnesses attended to be called by the prosecution
  2. List of exhibits to be produced
  3. Copy of all records of interviews with the defendant
  4. Copy of record of interviews of prosecution witnesses by police that contain relevant
  5. Copy of job sheets and other notes of evidence completed or taken by the war enforcement officer. Example evidence of a testing device that contains relevant information.
  6. Copy of diagrams in photographs made or taken by the law enforcement officer which will be introduced as evidence
  7. Copy of a statement made by or record of an interview with the co-defendant and in any case.
  8. A list of above information did the prosecutor refuses to disclose to the defendant, together with the reason for the refusal, and the ground and support of that reason, unless the grounds would itself is prejudice.
52
Q

Sub title: Full disclosure

Under section 13 criminal disclosure act 2008, when must a full disclosure be given to defense council? 2

A
  1. Pleaded not guilty
  2. When the defendant if he or she is a child or young person makes a first appearance in the Youth Court
53
Q

What is the meaning of relevant in S8 criminal disclosure act 2008?

A

Relevant, means information or an exhibit, as the case may be, ends to support or rebut, or has material bearing on, the case against the defendant

54
Q

The police instructions on criminal disclosure advise 2 valid points about where the information or an exhibit support to robust the case against the defendant.

What are those two points?

A
  1. Will the information or exhibit help or hinder the defendant’s ability to defend the charges?
  2. Would or might detract from the prosecution case or assisted defense or incriminate another person
55
Q

Why would the defense want to inspect exhibits which the prosecutors must allow when requested? 2

A
  1. Ensuring the security and integrity of the exhibit or otherwise maintaining its evidence value
  2. In case of an exhibit needed for use on an ongoing basis for law enforcement purposes and ensuring that the exhibit can continue to be used as such.
56
Q

What are the 3 pieces of information the prosecutor must supply in relation to Any Time a person has been charged within an offence?

A
  1. The name of the witness and of each identification witness, whether or not the prosecutor intends to call them.
  2. A statement of any description of the offender given by each witness to the prosecutor or police.
  3. A copy of any identical picture or other drawing.
57
Q

Evidence must be disclosed to the defense unless the information is not relevant under section 15, 16, 17 or 18 or the request seems frivolous or vexatious? True or false

A

True

58
Q

15 reasons why information will be withheld under sections 15 to 18 of the criminal disclosure act 2008?

A
  1. Prosecutions does not hold the information and recorded form or are not in position or control.
  2. Disclosures likely to prejudice the maintenance of the law
  3. Disclosure is likely to endanger the safety of any person
  4. It’s material prepared to assist in the conduct of the trial / prosecution
  5. Communication dealing with the matters relating to the conduct of the prosecution and is between the prosecutor and another person employed by the same person.
  6. Analytical or evaluative material in connection with the defendant being charged.
  7. Material subject to non-disclosure under the another enactment or disclosure would be contrary to the provisions of India connectment.
  8. Disclosures likely to prejudice the security of defense of New Zealand or international relations. All prejudice and trusting of information to the government of New Zealand on a basis of confidence by the government over any other country.
  9. Disclosures likely to facilitate the commission offence
  10. Disclosure will constitute contempt of court all of the House of Representatives
  11. Information is publicly available, has previously been made available to the defendant for example under the official information Act of 1982 or privacy Act 1993 or does not exist.
  12. The information will fix on The credibility of a witness he will not be called by the prosecution but maybe called by the defense and is not for any reason relevant.
  13. Information that identifies all may lead to the identification of a witness or informative address
  14. Definition with disclose a trade secret or prejudice that commercial position of a supplier of the information
  15. If the prosecutor does withhold information reason must be given.
59
Q

What are the two main information Acts?

A

Information Act 1982 and privacy Act 1993

60
Q

Title: The trial process II - Protecting and supporting

Sub title - Support person’s

The Evidence Act S79 provides for an entitlement for complainants in child witnesses and criminal cases to have a support person present? True or false

A

True

61
Q

This entitlement will apply regardless of the way in which the complainant gives evidence.

Please note it would not apply should the complainant give evidence via closed circuit television? True or false

A

False - a complainant can still apply should they give evidence via closed circuit television

62
Q

S79 legislation defines a support person as:

  1. A complaint giving evidence is entitled to have one person and may with the permission of the judge have more than one person near him or her to give support

1A. A child witnesses entitled to have one person with the same as above

  1. Any other witness and giving evidence made with the permission of the judge of one or more support persons

2A. This applies to witnesses or complainants that give evidence in an alternative way or ordinary way

  1. May not give a support person for example to veto a public figure from acting as a person which may affect the jury’s assessment of the witnesses veracity
  2. Complainant or child witness or other witnesses, unless the judge orders otherwise, must disclose all parties the name of each person who is to provide the support
  3. The judge may give directions relating the conduct of a person providing overseeing support under the section.

True or False

A

True

63
Q

Sub title: communication assistance

This enables or facilitates communication with persons who do not have sufficient proficiency in the English language to give evidence or have a communication disability.

True or false?

A

True

64
Q

What kind of assistance does this include?

A

Provision of an interpreter and in the other mechanism or technology aid that can help witness and defendant give or understand evidence

65
Q

S24(g) of the New Zealand Bill of Rights Act, what does this provide everyone?

A

It provides everyone who is charged with an offense she’ll have the right to have free assistance of an interpreter.

Note: a judge will not provide a defendant that can understand the proceedings and answer all questions without the aid of communication assistance

66
Q

Sub title: alternative ways of giving evidence

Does the alternative way affect the provisions of the Courts ( remote participation) Act 2010 which governs the use of all your visual links for appearances? Yes or No

A

No

67
Q

Under S103 (3) evidence Act 2006 a direction maybe made under the following grounds: x10

A
  1. Age or maturity of witness
  2. Physical, intellectual, psychological, psychiatric impairment of witness
  3. Trauma suffered by witness
  4. Witness fear of intimidation
  5. Linguistic or cultural background or religious beliefs of the witness
  6. Nature of the proceeding
  7. Nature of evidence witness is expected to give
  8. Relationship of the witness to any part of the proceeding
  9. Absence or likely absence of witness from New Zealand
  10. Any other ground to promote the purpose of the ACT
68
Q

Under S103(4) Evidence Act 2006 the judge must have regard to the following: x 5

A
  1. The need to ensure the fairness of the proceeding that there is a fair trial
  2. Views of witness
  3. The need to minimize the stress of the witness
  4. Need to promote recovery of a complainant from elleged defence
  5. Any other factor that is relevant to the just determination of the proceeding.
69
Q

If the judge is satisfied the witness should be able to give evidence in an alternative way, what 3 methods will the judge advise?

A
  1. In the courtroom but unable to see the defendant or some other specified person. (Screens)
  2. From an appropriate place outside the courtroom, either in New Zealand, or elsewhere
  3. By a video record made before the hearing of the proceeding
70
Q

Sub title: special provision for child witnesses

S107 Evidence Act 2006 provides a child witness to be entitled to give evidence in one or more alternative ways.

A party intending to call a child witness must give notice to all about which alternative way of giving evidence.

When must the above information be given to other parties?

A

No later than when the case management or trial call over memorandum is filed.

71
Q

Title: eligibility, compatibility, privilege and confidentiality

All persons that are eligible are compalable to give the evidence, they can be required to testify against their will by both prosecution and defense?

True or False

A

True

72
Q

Under section 16 of The Evidence Act some witnesses lack the capacity to give rational incoherent testimonies, they are unfit to be a witness because of age or physical or mental condition.

However as such people are still compatible to give a testimony?

A

Yes

73
Q

S165 of the Criminal Procedure Act 2011. What can a person be excused of, in relation to testifying even though they are compalable?

A

They can be excused from answering certain questions because of a privilege.

74
Q

Sub title: S72 Evidence Act 2006 - judges, jurors, and counsel

Is a judge eligible to give evidence and a proceeding?

A

No, due to desire to avoid conflicts of interest and ensure fitness and neutral trial.

75
Q

What happens to a jury of permission to give evidence?

A

He or she will be discharged in the trial will proceed with only 11 remaining jurors

76
Q

A defendant who acts as his own council, will he or she need judicial permission to testify?

Yes or No

A

No

77
Q

S73 - Evidence Act 2006, compatibility of defendants and associate defendants in criminal proceedings.

A defendant facing a criminal trial is eligible but not compatible for the prosecution or defense, which means a defendant cannot give evidence. True or False

A

False - yes a defendant can give evidence but does not have to!

78
Q

Under S73 a co defendant vs associated defendant - what’s the difference in terms of compalability?

A
  1. Co defendant - non compelleble.
  2. Associated defendant - is compilable “tried separately”
79
Q

Sub title: other exceptions under S74 Evidence Act 2006

Along with a judge and also )sovereign, Governor general, and sovereign or head of state or foreign country) what do they all have in common?

A

They are not compalable to give evidence

80
Q

S75 Evidence Act 2006, no bank officer is compatible to produce “bank records” if the content can be proven under business records except hearsay role section 19 or to appear as a witness to prove the matters recorded in the bank records. True or False?

A

True

81
Q

Privilege and confidentiality
Sub title: privilege

Privilege in relation to giving evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. True or false?

A

True

82
Q

Privilege evidence can arise from the contents of the evidence, class of the evidence or because of the nature of a particular relationship, true or false?

A

True

83
Q

What are the eight privileges outlined in The Evidence Act 2006?

A
  1. Communication with legal advisors
  2. Privilege and solicitors trust accounts
  3. Privilegeful prep materials for proceedings
  4. Privilegeful settlement negotiations, mediation fleet discussions
  5. Communication with Ministers of religion
  6. Privilegeful information obtained by medical practitioners in clinical psychologists
  7. Privilege against self incrimination
  8. Informal privilege.
84
Q

Which privilege is no longer part of the outline?

A

Marital privilege. This will be a assessed under section 69 (overriding discretion is to confidential information)

85
Q

Title: Veracity and propensity

Sub title: the veracity and propensity rules

The rules do not apply if veracity is an element of the offense. Hannigan V R (2013) true or false?

A

True

86
Q

The Evidence Act 2006 does not apply to bail or sentencing hearings except when the evidence relates to directly or indirectly to…..

A

Sexual experience of the complainant with any person other than the defendant or his or her reputation and sexual matters

87
Q

Sub title: propensity

Section 40-43 control evidence of propensity

Sub title: general rule.

A party may offer propensity evidence about any person, however it’s subject to some restrictions. What are the two restrictions?

A
  1. Propensity evidence may only be offered in accordance with sections 41-43
  2. In sexual cases propensity evidence about a complaint and sexual experience may only be offered in accordance with section 44.
88
Q

Sub title: propensity evidence about defendants, section 41 Evidence Act 2006

Propensity / good character evidence

How does this section affect a defendant’s offer to give evidence of disreputable conduct of himself?

A

Defendant offers evidence of criminal history for burglary int an attempt to show that he had been on the property to commit very rather than rape.

89
Q

S41 in relation to “neutral propensity” what does this allow a defendant to offer in regards to evidence?

A

He or she attends an evening class without fail which displays a propensity that is neither good or bad.

90
Q

S41(2) if the defendant offers evidence of his or her propensity to act in good fashion, what does this open the door too?

A

With the permission of the judge it opens the door to everybody evidence from the prosecution or any other party. This prevents judge or jury from forming the wrong impression of the defenders character

91
Q

Sub title: S42 Evidence Act 2006 - propensity evidence about co defendants

Provides that a defendant only offer propensity evidence about a co defendant if the evidence is relevant to a defense raised or proposed to be raised by the defendant and the judge permits the defendant to do so. True or false?

A

True

92
Q

Sub title: propensity events offered by prosecution about defendants. Section 43 Evans act 2006.

Propensity evidence offered by pros will only be admissible with the evidence …..

A

Has a PV in relation to an issue in the presidings which outweighs the risk of the evidence may have an unfairly prejudicial effect on the defendant.

93
Q

What is the term when a defendant does not have to be convicted of an earlier wrongdoing in order to qualify as adversible propensity evidence?

A

“prior equital evidence”

94
Q

Sub title: assessing probative value?

What are the six issues a judge must take into account when assisting the probative value of the events?

A

1 frequency of the X demonstrating to finish propensity increases to probate a value
2 how closely connected in time are the propensity X to the current alleged offending
3. Similarity between the previous acts and those currently alleged
4. The number of people making allegations against the defendant
5. With the allegations maybe result of collusion or suggestibility
6 do the extra similar unusual features

95
Q

Sub title: evidence of sexual experience of complainants and sexual cases. Section 44 of The Evidence Act 2006

Subject to section 44A, it provides a party who proposed to offer evidence, ask questions about sexual experience of a complainant must make a written application setting names, subject matter and scope of evidence or questions. True or false

A

True

96
Q

S44 what must the judge be satisfied of before giving permission to give evidence in relation to sexual cases?

A

The judgment only gives permission when satisfied evidence is of such direct relevance to facts in issue or to be sentenced to exclude it, would be contrary to the interest of justice.

97
Q

S44 no evidence can be given or questions relating directly or indirectly to the reputation of a complainant sexual matters.

The sectional place to all cases of sexual nature. True or false

A

True

98
Q

Title: Hearsay

Sub: what is hearsay?

A

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

99
Q

In relation to hearsay, statements have 2 meanings:

A

1 a spoken or written assertion by a person of any matter or

2 non-verbal contact of a person that is intended by that person as an assertion of any matter

100
Q

Sub: out or court statements by a witness not included

The definition of a witness and hearsay statement means that an out of court statements made by a witness:
-are not excluded by the hear say rule
-on basis that the maker is available to be cross examined. True or false?

A

True

101
Q

Sub title: unintended assertions are not statements (and so I’m not hearsay statements)

The definition of statement does not include a statement or non-verbal conduct that is not intended to be in an assertion.

True or false?

A

True

102
Q

Sub title: purpose for which evidence is offered?

What is the focus of the hearsay rule?

A

Focus of the hearsay rule is on the purpose evidence offered, rather than just the fact the statement was made out of court.

103
Q

Sub title: section 18 main exception to hearsay rule.

Section 18 makes it clear that there are two criteria for admissibility. What are those two factors?

A
  1. Reliability
  2. Unavailability or undue expensive or delay
104
Q

Sub title: reliability

What are the 3 factors that rule against hearsay in relation to lack of reliability of hearsay evidence?

A

1Maker of the statement is not called as a witness, no opportunity to cross-examine them.
2 concerned the jury cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement
3. Danger that witness will make mistake about the meaning or content of statement made by other people, example the game of Chinese whispers.

105
Q

S18(1) In reference to “reasonable assurance” of reliability - it means that the evidence must be reliable enough for the fact finder to consider it, draw its own conclusion as to the weight be placed on the evidence. True or false?

A

True

106
Q

Sub title: section 18 (1) Evidence Act 2006 defines “circumstances” in relation to a person who’s not a witness will include (a-e)?

A

A. Nature of statement
B. Contents of statement
C. Circumstances that relate to the making of statement
D. Circumstances relating to veracity of a person
E. Circumstance that relate to the accuracy of the observation of the person

107
Q

Sub title: unavailability or unexpense and delay

16(2) unavailable as a witness means (A -B)?

A

A. Dead
B. Outside New Zealand
C. Unfit to be a witness, age or physical or mental condition
D. Can’t be identified or found
E. Not compalable to give evidence

108
Q

Sub title: section 19 admissibility of hearsay statements contained in business records

A. The person who supplied the information is unavailable as a witness
B. The judge considers no useful purpose will be served by requiring that person to be a witness if they can’t reasonably be expected to recollect the information he or she supplied
C. Undue expensive delay would be caused if the person was required to be a witness. True or false

A

True

109
Q

Sub title: section 22 of the Evidence Act 2006 - A notice of hearsay must be given in order to have a hearsay statement admitted.

Notice of hearsay in criminal proceedings

In a criminal proceeding, no his system may be offered an inference unless (5 parts)

A
  1. A party proposing to offer the statement has complied with the requirements, every other party has waived those requirements, or what the judge dispenses with those requirements.
  2. A party who proposes to offer his a statement must provide every other party with a written notice
  3. If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document which the statement is contained
  4. Notice must was insufficient time before the hearing to provide the opportunity to respond to statement
  5. The judgment dispense with the requirements of sub two and three and four if:
    -having regard to the nature and continue the statement, no party is substance substantially prejudice by the failure to comply with the requirements
    -compliance was not reasonably practical in the circumstances
    -the interest of justice so require
110
Q

Title: Identification evidence

Sub title: admissibility of visual identification evidence

Visual identification is defined in 2 parts in 2006 Act, what are they?

A
  1. An assertion based on what a person saw - to the effect a defendant was present or near where an act was direct or circumstantial evidence of an offence was done at,or about, the time act was done OR

2.an account (oral or in writing) of an assertion of the kind described above

111
Q

S45 only applies to identification of persons alleged offending, so other forms of visual identification evidence is governed by ss7 and 8.True or false?

A

True

112
Q

S45 Evidence Act 2006 governs the admissibility of visual identification evidence

What are the 6 effects of S45?

A
  1. VI evidence is admissible, unless the defendant proves on the BOP that it’s unreliable.
  2. S45(3) Are the requirements for formal procedure but are not comprehensible regarding conduct of identification. Further revised details are contained in Police Instructions
  3. Procedure not followed - inadmissible OR good reason to not follow OR Prosecution can prove BRD circumstances ID was made prduces reliable ID.
  4. Procedure must be conducted by “officers of an enforcement agency, includes some other then police

5.This section is only for VI evidence of a person who allegedly committed an offence

  1. Prevent dock Identification where witness identifies defendant in court for first time
113
Q

S45 focus is on whether or not the formal procedure was undertaken.

How the procedure is utilized is key, not whether one “method is better then the another. True or Fase?

A

True

114
Q

S46 introduces Burden of proof on defendant to challenge reliability VI procedure which is on the balance of probabilities.

The focus can be both procedural reasons for asserting unreliability AND connected with witness OR circumstances of offence, short shightedness, bad lighting, etc.true or false?

A

True

115
Q

S45(2) no formal procedure followed becomes inadmissible unless prosecution proves BRD that circumstances in which ID was made produced aa reliable identification. True or false?

A

True

116
Q

Sub title: Focus on reliability

Identification evidence is inherently unreliable, care must be taken. True or false

A

True

117
Q

Sub title: formal procedure requirements

When should the procedure take place?

A
  • during the investigation
    -soon after arrest
118
Q

S46 (3)

What rank should conduct procedure?

A

The police instructions state Level of Sarg OR Senior should conduct it. OC can be present

119
Q

How many people must be chosen and what are they advised about?

A

7 of a similar age, race, height, general appearance and ARE NOT police

Suspects should be advised they are entitled to refuse parade and have solicitor present

120
Q

If a witness indicates a person but can’t make positve identification or picks out someone other then suspect

What must OC parade ensure?

A

The OC parade must ensure its recorded.

A written and pic record should be made of procedure

121
Q

Sub title: “good reason” not following a formal procedure

What are they?

A

S45(4)
- refusal of the suspect to take part in procedure
-singular in appearance
Substantial change of appearance after offence
- Police have no issue identifying offender
-identified shortly after arrest
- chance meeting
- recognition of eyewitnesses makes formal procedure unnecessary

122
Q

Sub title: S4 Evidence Act 2006 -voice identification evidence

Assertion by person whether
- first hand
-mechanical
-electronic transmission
- recording

True or false

A

True

123
Q

Sub title S46 governs admissions of voice identification evidence

Burden of proof imposed on prosecution is: reliability on the Balance of probabilities.

Therefore prosecution only have to prove Voice identification evidence is probably reliable which is much lower standard then Visual identification - that’s weird. True or false

A

True

cpk.30/8/22 (11 decks)

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