Combined Module Flashcards

Question

Define propensity

Answer 1

Propensity evidence is evidence of a person’s propensity to act in a certain way including acts or omissions or have a particular state of mind

Answer 2

An eye witness who gives evidence to the fact in issue or has seen, heard or experienced.

Answer 3

Does not directly prove an offence however allows for inference

Answer 4

The NZ police or body/organisation that is responsible for the enforcement of an enactment eg customs, ministry of fisheries or IRD.

Answer 5

- good evidence establishes what you are trying to prove - facts that prove the elements of the charge - circumstantial evidence that can assist a judge or jury make inference about facts in issue

Answer 6

Judicial notice of a fact is where a fact is accepted in court without evidence of it being correct. An example of this is Christmas Day being the 25th December. This doesn’t need an expert witness to prove in court and is accepted.

Answer 7

The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

Answer 8

- communications with legal advisors - solicitor trust accounts - prep material for proceedings - settlement negotiations or mediation - communications with minister of religion - information obtained by medical practitioners AND clinical psychologists - privilege against self incrimination - Informer privilege

Answer 9

- make decisions regarding admissibility of evidence - explain and enforce general principals of law - instruct the jury of the rules of law - ensure rules are followed in regards to evidence being produced

Answer 10

Veracity is a disposition to refrain from lying and propensity is a tendency to act in a certain way

Answer 11

Veracity evidence is only accepted if it is substantially helpful in a persons veracity. For a judge to asses if the evidence falls into this category they may consider the following matters: - lack of veracity - the person has been convicted of 1 or more offences that show a propensity for dishonesty or lack of veracity. - any previous inconsistent statements - bias on part of the person - a reason to be untruthful

Answer 12

A hearing around admissibility of evidence were the jury is excluded from a court room. These are referred to a preliminary facts.

Answer 13

Generally speaking evidence is either admissible for all purposes or not at all.

Answer 14

- The presumption of innocence - the burden of proof lays with the prosecution in relation to the elements of the offence to prove beyond reasonable doubt - the defendant does not have to prove anything

Answer 15

Having an evidential burden means that a defence can not be left to the jury or judge unless it has been made a live issue by the defence

Answer 16

Legal burden of proof is placed on the defendant, such as insanity. The principle can also be overridden by parliament by express statutory exceptions On occasions the Evidence act may put the burden of proving an issue on an individual such as the defendant

Answer 17

- perjury - false oaths - false statements - treason Corroboration is required as a matter of law

Answer 18

A statement of an opinion is not admissible in a proceeding except as provided by section 24/25. Section 24 - 1. a witness may state opinion so long as it is necessary to help the witness to communicate, or to help a fact finder understand what the witness is saying. 2. The witness must be referring to an opinion they have perceived.

Answer 19

1. The nature of the statement 2. The contents of the statement 3. The circumstances that relate to making the statement 4. The circumstances that relate to the veracity of the person 5. The circumstances that relate to the accuracy of the observations

Answer 20

- dead - is outside NewZealand and is not reasonably practicable for him or her to be a witness - is unfit to be a witness due to age or physical and/or mental conditions - cannot be identified or found - is not compellable to give evidence

Answer 21

May only be offered if it has a probative value and outweighs the risk of being unfairly prejudicial Judge to consider: - frequency of acts - connection in time - similarity of acts - number of different victims - collusion or suggestibility - unusual acts

Answer 22

The judge must satisfy them self’s that the person is aware of the privilege and it’s effects. Sufficient information should be provided for the judge to asses wether self incrimination is reasonably likely

Answer 23

An informant has privilege to not have material disclosed that would reveal their identity. An informer is: - someone that has provided information with or without a reward to enforcement agency about an offence where they expect there identity will not be disclosed - NOT a witness and NOT called to give evidence - an informer can include a member of police working undercover

Answer 24

- a person was prosecuted in relation to the same events and an offence that a person is already being prosecuted for, of has some connection to the event.

Answer 25

1. Judge 2. Sovereign 3. Governed-general 4. Head of state of a foreign country

Answer 26

Where a bank is not a party to the proceeding, no bank officer is compellable to produce banking record.

Answer 27

Only if the defendant has offered evidence about their own veracity or they have challenged a prosecution witnesses by reference other than facts in issue

Answer 28

1. Evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind in relation to acts, Omissions or circumstances they are alleged to be involved in. 2. Does not include evidence of an act or omission of an element they are being tried for or the cause of action in the proceeding

Answer 29

The general rule is that a party may offer propensity evidence about any person

Answer 30

Any information or communication between a defendant and their legal advice is classified as privileged information under section 54 and 56

Answer 31

- communications between a party and any other person - communications between a persons legal adviser and any other person - information prepared or provided by a persons legal advisor - information prepared or compiled on request of another person for legal defence

Answer 32

A spoken or written assertion from someone in relation to any matter Included a non verbal assertion if intended to be an assertion of any matter

Answer 33

A statement that was made by any other witness and is offered to prove an offence in a proceeding. The witness does not give evidence and is unable to be cross examined.

Answer 34

- if they are lawfully able to give evidence - once sworn in they are required to answer questions put to them - in general all persons are eligible and compellable to give evidence (with some exceptions)

Answer 35

- person acting as a judge - person acting as a juror or council unless given permission by a judge (a defendant who acts as their own council will not required to seek permission)

Answer 36

- a defendant in a hearing is not a compellable witness - a co offender being tried for the same offence as the defendant is not a compellable witness

Answer 37

- verify they are allowed to give evidence - verify if they are required to give evidence - verify if they can refuse to give evidence - verify the type of witness they will be

Answer 38

- veracity - propensity - hearsay - opinion - identification - improperly obtained evidence

Answer 39

A hearsay statement is not admissible except: When provided by the provisions of any other act and it is relevant

Answer 40

It is admissible when the circumstances of the statement provide reasonable assurance the statement is reliable And The maker of the statement is unavailable or the Judge considers locating the witness would cause undue expense or delay

Answer 41

The maker of the statement is unable to be called as a witness and be cross examined Unable to view the demeanour of the statement maker Repetition of the original statement may cause inaccuracy’s

Answer 42

- a jury is empanalled and foreperson selected - prosecutions opening address - prosecutions case presented - the defence opening address - defence case presented - prosecution makes a closing statement - defence makes a closing statement - judge sums up - jury retires to decide a verdict

Answer 43

- 12 years of age and older must take the oath or affirmation before giving evidence - under 12 years must be explained by the Judge the importance of telling the truth and must make a promise to tell the truth

Answer 44

- the way evidence is given - a warning about evidence maybe unreliable - a warning about lies

Answer 45

Expert evidence may consist of: - facts - opinions - mixture of the two to assist a fact finder to understand.

Answer 46

A person who is a specialist knowledge or skill based on training, study or experience.

Answer 47

- lack of reliability - lack of fairness - lack of public interest Or a combination of all three

Answer 48

The judge must exclude evidence if it will have an unfair prejudicial effect on the proceeding or needlessly prolong the proceeding

Answer 49

Inferences that have been expressly drawn by law from particular facts and can be conclusive or rebuttable. (Example being that a child under 10 can’t be convicted)

Answer 50

Presumptions of facts are simply logical inferences Example is one person thinks the other has guilty knowledge because they are in possession of recently stolen good

Answer 51

It is admissible if it can be legally received by the court. If it can’t be legally received it is inadmissible

Answer 52

- relevance - reliability - unfairness - public interest

Answer 53

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

Answer 54

A person has a privileged in respect of any communication had with the minister of religion if the conversation was made in confidence and made seeking spiritual advice, benefit or comfort. A minister of religion is a person that has a status within the church or other religious community

Answer 55

Applies when a person is examined by a medical practitioner for drug dependency or any other condition or behaviour that may manifest criminal conduct Does not apply when a court order has been issued by a judge to submit to a procedure

Answer 56

Where a promise Is made not to disclose an informants identity, no questions should be answered or any documents produced that would identify the informant.

Answer 57

Yes, so long as the document was created by the witness or by a person on behalf of the witness in his or her presence Eg statements or briefs of evidence

Answer 58

A previous statement from a witness that is consistent with the witnesses evidence is admissible if: - The statement responds to a challenge - forms an important part of the events before the court - consists of the mere fact a criminal complaint has been made

Answer 59

- dealing with significant matters that are relevant and in issue - the matters contradict the witness evidence - the witness is in a position to give admissible evidence on the matters

Answer 60

The judge may disallow or indicate a witness does not need to answer a question if it is : - improper - unfair - misleading - repetitive - too complicated for the witness in the circumstances

Answer 61

- age or maturity - impairment - cultural background - nature of the proceeding - hypothetical questions

Answer 62

A witness that does not come up to brief would be likely unfavourable for the part calling them, however they may not be considered hostile, just inconsistent.

Answer 63

- to illicit supportive information - to challenge the accuracy of information provided

Answer 64

- to direct the witnesses attention - to jog a witnesses memory - to assist in eliciting information from young persons or people with limited English or intelligence - with a hostile witness

Answer 65

If a witness is displaying active hostility they may be asked: - leading questions - probing questions - asking questions regarding previous inconsistent statements - challenges of veracity

Answer 66

- exhibits a lack of veracity when giving evidence - evidence is inconsistent to a previous statement - refuses to answer questions and is misleading

Answer 67

1. Defendant 2. Defendants council 3. Judge

Answer 68

To illicit testimony that supports the case of the party calling the witness

Answer 69

- Tendency for people to agree by saying yes - it is illicit if answers wanted and makes less genuine - Leading questions lead to construction or manipulation of the evidence

Answer 70

Should be treated the same as adults except with children the Judge CANT give warnings about the corroboration of the evidence like they would with adults and CANT comment on the need to scrutinise he child’s evidence

Answer 71

“Your honour” or “sir/ma’am”

Answer 72

A witness can be cross examined on evidence, following the cross examination can be further examined by the person calling the witness on what resulted from he cross examination. Special permission is required from the Judge to question on a new matter

Answer 73

Is evidence called by either parter after the completion of their case and can only be admitted with leave of the court. - relates to a formal matter - is a matter relating to the conduct of defence - was not available or admissible before the closure of the prosecution case. - admitted for the interests of justice

Answer 74

- evidence may be unreliable - certain ways of giving evidence - warning about lies - directions about child’s evidence - warnings about identification evidence - delayed complaints or failure to complain I sex cases

Answer 75

Facts in issue are those which the prosecution must prove in order to establish the elements of the offence, or those which the defendant must prove in order to succeed with a defence in respect of which, he or she carries the burden of proof.

Answer 76

In the case of Woolmington v Director of Public Prosecutions, it was held that the prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Answer 77

Beyond reasonable doubt is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict. Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.

Answer 78

The purpose of the Act is to help secure the just determination of proceedings by: − logical rules − Recognise the importance of the New Zealand Bill of Rights Act 1990 − promoting fairness to all parties − protecting confidentiality and other important public interests − avoiding unjustifiable expense and delay − enhancing access to the law of evidence.

Answer 79

- unfairly prejudicial in the proceeding. - where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

Answer 80

Once evidence is admitted, it can generally be used for all purposes: “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all”

Answer 81

Propensity evidence means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but does not include evidence of an act or omission that is: − one of the elements of the offence for which the person is being tried, or − the cause of action in the proceeding in question.

Answer 82

Under the Act, a hearsay statement is defined as (s4): “a statement that – (a) was made by a person other than a witness; and (b) is offered in evidence at the proceeding to prove the truth of its contents”

Answer 83

Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill, based on training, study or experience”.

Answer 84

A communication with a legal adviser would be privileged when: (a) The communication must be intended to be confidential. (b) The communication must be made for the purposes of obtaining or giving legal services.

Answer 85

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. (a) The associated defendant is being tried separately from the defendant; or (b) The proceeding against the associated defendant has been determined.

Answer 86

Self-incrimination is the providing of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence”

Answer 87

There are two types of offence in which the unsupported evidence of one witness is insufficient to support a conviction. These are: − perjury and related offences (ss108, 110 and 111 Crimes Act), and − treason (s73 Crimes Act).

Answer 88

When a judge is presiding over a trial by jury, his or her role is to: − decide all questions concerning the admissibility of evidence − determine whether there is any evidence that is fit to be submitted to the jury for its consideration − explain and enforce the general principles of law applying to the point at issue − instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Answer 89

A leading question is one that directly or indirectly suggests a particular answer to the question.

Answer 90

There are two purposes of cross-examination: − to elicit information supporting the case of the party conducting the cross-examination − to challenge the accuracy of the testimony given in evidence-in-chief, for example, by casting doubt on the witness’s veracity, or by eliciting contradictory testimony.

Answer 91

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). 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

Answer 92

• In the ordinary way - either orally in a courtroom in the presence of a judge, jury, parties to the proceeding, counsel, and members of the public allowed by the judge. • 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. • In any other way - provided for by the Evidence Act 2006 or any other relevant enactment.

Answer 93

Hearsay statement - This is a statement that was made by a person other than the a witness and is offered in evidence int he proceeding to prove the truth of its contents.

Answer 94

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

Answer 95

Propensity - 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.

Answer 96

Direct Evidence - This is any evidence given by a witness as to a fact in issue that he or she has seen heard or otherwise experienced.

Answer 97

Circumstantial Evidence - This evidence of circumstances that do not directly prove any fact in issue, but which allows inferences about the existence of those facts to be drawn.

Answer 98

The fundamental principle in criminal law is the presumption of innocence, known as the woolmington principle. This principle establishes that subject to specific statutory exceptions the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence. Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence. It is not a burden of proof.

Answer 99

There are exceptions to the general principle of burden of proof which means that in some cases it reverses and falls on the defendant including where: • The accused wishes to rely on the defence of insanity. • Specific statutory exceptions exist. • S67(8) of the Summary Proceedings Act 1957 applies.

Answer 100

The courts have traditionally been reluctant to provide any detailed or precise meaning of 'Beyond Reasonable Doubt' the stance of the Court of Appeal being that 'reasonable doubt' means what it says'.

Answer 101

It must simply show that it is more probable than not.

Answer 102

a. facts to be established by the application of logical rules b. providing rules of evidence that recognize the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990 c. promoting fairness to parties and witnesses d. protecting rights of confidentiality and other important public interests e. avoiding unjustifiable expense and delay f. enhancing access to the law of evidence.

Answer 103

When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

Answer 104

Presumptions of Law are inferences that have been expressly drawn by law Presumptions of law may be either conclusive or rebuttable.

Answer 105

Presumptions of fact are those that the mind naturally and logistically draws from the given facts. For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

Answer 106

• Relevance • Reliability • Unfairness • Public Interest

Answer 107

Materiality asks whether the evidence in the case is offered on a matter or a fact at issue

Answer 108

whether the evidence has a logical tendency to prove or disprove

Answer 109

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding. • Evidence may still be excluded where it has been obtained in circumstances that would make its admission against the accused unfair. The most obvious example of this is where a defendant's statement has been obtained by unfair or improper methods.

Answer 110

A closed chambers hearing held in regards to the admissibility of evidence where the jury is excluded.

Answer 111

* Veracity * Propensity * Hearsay * Opinion * Identification * Improperly obtained evidence

Answer 112

a. A previous lack of veracity when under a legal obligation to tell the truth b. that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity c. any previous inconsistent statements made by the person d. Bias on the part of the person e. a motive to be untruthful.

Answer 113

a. The defendant has offered evidence about his or her own veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue And b. the Judge permits the prosecution to do so.

Answer 114

propensity evidence means evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved: but does not include evidence of an act or omission that is • 1 of the elements of the offence for which the person is being tried or • the cause of action in the proceeding in question.

Answer 115

a hearsay statement is a spoken or written assertion by a person of any matter that: • was made by a person other than a witness and • is offered in evidence at the proceeding to prove the truth of its contents. Statement means S4 A statement can also be non verbal conduct of a person that is intended by that person as an assertion of any matter.

Answer 116

1. Is dead 2. is not in New Zealand 3. is unfit due to age or physical or mental condition 4. cannot be identified or found 5. is not compellable to give evidence.

Answer 117

• Where a witness offers a bare opinion it holds little probative weight • There is a danger that a witness offering opinion evidence could confuse the tribunal of facts and prolong proceedings • generally opinion evidence would be inadmissible unless used to help the fact finder understand the witnesses evidence of why they saw, heard or perceived.

Answer 118

An expert is person who has specialized knowledge or skill based on training, study or experience. Expert opinion evidence may be admissible so long as it was made by an expert with the intention of helping the fact finder understand or ascertain any fact in the proceeding

Answer 119

All people are eligible and compellable as a witness if they are lawfully able to give evidence on behalf of both prosecution and defence. Once a witness has entered the witness box and been sworn they are under obligation to answer all questions put to them.

Answer 120

the right to refuse to disclose or to prevent disclosure • Communications with legal advisors • Solicitors trust accoungts • Preparatory materials for proceedings • Settlement negotiations or mediation • Communications with ministers of religion • Information obtained by medical practitioners and clinical psychologists • Privilege against self incrimination • Informer privilege

Answer 121

a. perjury and b. false oaths c. false statements or declarations and d. treason

Answer 122

• decide all questions concerning the admissibility of evidence • explain and enforce the general principles of law applying to the point at issue • instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.

Answer 123

The Evidence Act 2006 defines a leading question as one that directly or indirectly suggest a particular answer to the question. The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons: • There is natural tendency for people to agree with suggestions put to them by saying 'Yes' even if those suggestions do not precisely accord with their own view of what happened. • Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing spontaneity and genuineness of the testimony. • There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious, or otherwise between counsel and witness.

Answer 124

a. the question relates to introductory or undisputed matters b. the question is put with the consent of all other parties c. the Judge in exercise of the Judges discretion allows the question.

Answer 125

Yes with permission from the judge they may review documents/notes made by them at the time their memory was fresh in relation to the evidence given.

Answer 126

A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

Answer 127

• Asking leading questions • Asking questions designed to probe the accuracy of memory and perception • Asking questions as to prior inconsistency statements and • Other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is substantially helpful in assessing the witness's veracity).

Answer 128

• Exhibits a lack of veracity exhibits or appears to exhibit, a lack of veracity when giving evidence unfavorable to the party who called the witness on a matter about which the witness may reasonably be expected to have knowledge of • inconsistent evidence gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness or • refuses to answer questions or deliberately withholds evidence (This does not include a complete refusal to give evidence as such a person would not be a witness).

Answer 129

1. To 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 ( for example, by casting doubt on the witness's veracity or by eliciting contradictory testimony).

Answer 130

- improper - unfair - misleading - needlessly - repetitive - too complicated for the witness to understand.

Answer 131

Evidence called by either party after the completion of their own case in order to rebut something arising during the trial can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence; • relates to a purely formal matter • relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted) • was not available or admissible before the prosecution's case was closed • is required to be admitted in the interests of justice for any other reason.

Answer 132

judicial warning that evidence may be unreliable • judicial directions about certain ways of giving evidence • judicial warnings about lies • judicial directions about children's evidence • judicial warnings about identification evidence • delayed complaints or failure to complain in sexual cases

Answer 133

the Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of a warning had the complainant been an adult. the Judge must not, unless expert evidence is given in that proceeding supporting the giving of the following direction or the making of the following comment: o (a)instruct the jury that there is a need to scrutinise the evidence of children generally with special care; or o (b)suggest to the jury that children generally have tendencies to invent or distort.

Combined Module Flashcards

(157 cards)