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sgt cpk COPY > Chapter 8 Evidence > Flashcards

Chapter 8 Evidence Flashcards

1
Q

The rules of evidence fall into what 3 main categories.

A

● how evidence may be given
● who may give evidence
● what type of evidence may be given

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2
Q

What is the definition of admissible evidence

A

Evidence that is legally able to be received by the court

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3
Q

What is the definition of relevance

A

the tendency to prove or disprove anything that is of consequence

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4
Q

What is the definition of facts in issue

A

those that prosecution must prove to establish elements of offence, or those defence must prove to succeed

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5
Q

What is the definition of weight of evidence

A

degree of probative value that can be accorded

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6
Q

Define probative value

A

how strongly evidence assists in proving or disproving a matter

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7
Q

Define prejudicial

A

evidence which is adverse to a party’s case

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8
Q

Define child complainant

A

under 18 years of age at time proceedings commenced

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9
Q

Define child witness

A

witness who is a child when proceedings commence & a child complainant but not a defendant who is a child

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10
Q

What is a hearsay statement

A

a statement made by a person, other than a witness that is offered in evidence.

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11
Q

Define veracity

A

the likelihood of a person not to lie

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12
Q

Define propensity

A

a persons tendency to act and think a certain way

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13
Q

What is the purpose and what are the 6 objectives of the Act as defined in S.6

A

P - help secure the just determination of proceedings
● provide for facts to be established by logical rules
● provide rules in line with NZBORA
● promote fairness
● protect confidentially & public interest
● avoid unjustified expense
● enhance access to law of evidence

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14
Q

What is the fundamental principle for the admissibility of evidence

A

● evidence that is not relevant will not be admissible
● if Judge decides that evidence is relevant (subject to any other rules) a party will be entitled to present evidence about it.

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15
Q

Describe the S.8 test which balances the probative value of evidence against a risk that it might have an unfair effect

A

● evidence will be admitted if its probative value outweighs any risk of any unfairly prejudicial effect on the proceeding - or is strong enough to support prolonging of the proceeding.
● S.8 allows exclusion of evidence which would be unfair by distracting the judge from the real issues of the trial
● any assessment must also take into account the defendants right to offer effective evidence &right of fair trial

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16
Q

Outline S.9 - Admission by agreement

A

allows for admission of evidence where both parties agree. Useful for expert evidence when not in dispute

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17
Q

Describe the Woolmington principle - Burden of Proof

A

Burden of proof lies with the prosecution

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18
Q

What is the evidential burden on the defence

A

● evidence that suggests a reasonable doubt about the conclusions one would otherwise draw from prosecution case.
● evidence that suggests an explanation - e.g self defence

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19
Q

What are some exceptions to the Woolmington Principle

A

● defence of insanity

● person involved in suicide pact

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20
Q

What is the standard of proof for the prosecution

A

beyond reasonable doubt

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21
Q

In R v Wanhalla - what did the Court of Appeal say about reasonable doubt to assist jurors

A

beyond reasonable doubt is a high standard of proof which is only met if you are sure accused is guilty.
It is more than a persuasion that a person is probable guilty or very likely guilty

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22
Q

What is the burden of proof for the defence

A

on the balance of probabilities

must be more probable than not

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23
Q

Outline S.121 Corroboration

A

It is not necessary for evidence (depends of relevance & reliability) to be corroborated except for perjury, false oath/statements or treason

24
Q

What is the general rule for witness oath/affirmation

A

● over 12 yrs say oath or affirmation
● under 12 yrs must be informed to tell truth and not lie
● S.77 allows evidence without if judge agrees e.g person with intellectual disability

25
Q

What is the general sequence for jury trials

A 
● opening remarks from judge
● crown opening address
● crown case presented
● defence opens case
● defence calls evidence
● crown closing address
● defence closing address
● Judge sums up
● Jury retires for verdict
26
Q

What are the conditions that must be satisfied before a witness can refresh memory in court

A

● obtain leave of judge
● all parties shown document
● document must have been made or adopted by witness
● made when memory fresh
● document must have been made by witness or person on witness behalf

27
Q

What does Cameron v R say about when memory was fresh

A

● significance of event
● time that’s lapsed
● detail/lucidity of recollection

28
Q

Under S.90(7) Evidence Act 2006 when is a witness previous statement admissible

A

● when consistent with witness evidence
● circumstances relative to statement provides assurance that statement is reliable
● statement provides court with info witness is unable to recall

29
Q

What is the general understanding of refreshment of memory out of court

A

● when a prosecution witness has refreshed memory prior to trial from a written statement, the defence should be advised and if requested a copy made available.
● In R v Jennings this was extended to include Police refreshing from notebook

30
Q

What is the principle of refreshing memory under R v Foreman

A

● witness free to use any means to refresh memory
● the means used can affect the weight given to evidence
● defence able to question the means that were undertaken
● obligation on witness to produce document to opposing counsel

31
Q

What is the definition of hostile witness

A

● exhibits lack of veracity when giving evidence which is unfavourable to the party that called the witness on a matter witness should know about.
● gives evidence that is inconsistent with a statement made by that witness
● refuses to answer or withholds information
● actual or apparent intention to be unhelpful must exist

32
Q

What are the 4 steps of disclosure

A

● initial
● full
● defence
● third party

33
Q

What is the documents required for initial disclosure

A

● SOF
● charging doc
● QHA
● summary of def right to apply for more info

34
Q

Under S.13 Criminal Disclosure Act when must full disclosure be made

A

● not guilty plea

● first appearance in YC

35
Q

What do Police instructions advise Prosecutors to consider when deciding whether something supports or rebuts a case

A

● would info hinder or help defendant to defend

● would info detract from Prosecution case or incriminate another person

36
Q

Outline S.14A ID witness

A

when someone has been charged with an offence prosecution must supply (if asked) name of witness, statement given by witness and a copy of any identikit picture

37
Q

What are some instances that info can be withheld

A 
● police don't hold that info
● prejudice maintenance of law
● endanger any person
● material to assist in conduct of trial
● publicly available
38
Q

Under S.79 Evidence Act when can complainants/witnesses have support people

A 
● complainant entitled to 1 person
● child witness when giving evidence
● other witness
● doesn't matter if evidence given in ordinary or alternative way.
● judge can decline suport
● can be interpreter  or sign language
39
Q

What are the ways of giving evidence in the alternative way

A

● audio visual link
● behind screen
● video made prior

40
Q

What is the general principle about people being eligible and compellable

A

all persons are eligible to give evidence for prosecution or defence. All persons who are eligible are compellable - can be required to testify against their will

41
Q

Outline S.73 Compellability of defendants

A

● defendant not compellable for pros or defence

● associate not compellable unless being tried separately or case against associate has finished

42
Q

What is the definition of privilege

A 
● is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
● privilege evidence can arise from contents of evidence, class of evidence or nature of relationship
● Judge has discretion to protect confidentiality by weighing competing public interest
43
Q

what are the rules of veracity

A

● does not apply to a person if veracity was an element of the offence, e.g perjury
● does not apply to bail or sentencing matters except if it relates to sexual experience or reputation

44
Q

What is the general rule of propensity

A

a party may offer propensity evidence about any person, except evidence of an act or omission that is one of the elements of the offence for which a person is on trial

45
Q

What are the rules about propensity evidence

A

● a def may offer P.E about themselves, if so prosecution may also offer P.E about the defendant
● def can offer neutral P.E
● def may only offer P.E about a co-defended if relevant to defence raised
● Prosecution may offer P.E about def only if evidence has probative value which outweighs risk that evidence may be unfairly prejudicial
● Judge must weigh relevance of PE against competing position of parties & warn jury about any illegitimate reasoning
● def doesn’t have to have been convicted for an incident to be cited as P.E

46
Q

How does a judge assess the probative value of evidence

A 
● consider nature of issue in dispute
● frequency of acts
● how closely connected in time
● similarity of any previous acts
● number of people making an allegation
● whether result of collusion
● acts share unusual features
47
Q

What is the rule about sexual experience under S.44

A

No evidence can be given or question put relating to the reputation of the complainant in sexual matters. Means that reputation evidence cant to be given towards a complainants credibility

48
Q

What is the general rule about hearsay statements - S.17

A

are not admissible except when there is a specific provision for admissibility

49
Q

What is the general rule for the admissibility of hearsay statements - S18

A

if circumstances of statement give assurance it is reliable, or maker not available or undue delay cost to get person in court

50
Q

What is the criteria for admissibility of hearsay statements

A

● reliability
● unavailability of witness
● undue cost/delay

51
Q

Outline S.19 Admissibility of hearsay statements contained in business records

A

will be admissible where no useful purpose would be served by having a person appear as a witness, because there would be no expectation they’d remember the information on the record

52
Q

What is the definition of ID evidence

A

● an assertion by a person (based on what they saw) that they saw the def was near or at a place when crime took place
● an account (written or oral) of that assertion

53
Q

What are the requirements of S.45 admissibility of visual identification evidence

A

● ID evidence obtained by formal process will be admissible unless def can prove on balance of probabilities it is unreliable
● only applies to visual ID of a person alleged to have committed an offence

54
Q

Outline the formal ID procedure

A

● witness to observe as soon as practicable after incident
●suspect to be compared to no few than 7 person who look similar
● no clues to be given to witness
● witness informed that suspect may not be on there
● process to be recorded in writing and signed by officer & sworn to be true
● actual photo of suspect to be certified by officer

55
Q

What are the good reasons for not following formal ID procedure

A

● refusal of suspect to take part (if photo not already available)
● can’t find similar looking people
● ID not deemed to be an issue
● If ID was confirmed soon after offence during initial investigation
● if ID was made after a chance meeting between suspect and witness

56
Q

What is the admissibility of voice ID - S.46

A

voice ID offered in prosecution is admissible if proven reliable on the balance of probabilities

sgt cpk COPY (9 decks)

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