Combined Module

Question 1

What is evidence?

Answer 1

Body of material that a court or tribunal may take into account to reach a decision

Question 2

List three ways to give evidence?

Answer 2

• Oral
• written
• visual

Question 3

When is evidence admissible ?

Answer 3

Evidence is admissible if it is legally able to be received by a court.

Question 4

When is evidence relevant?

Answer 4

Evidence is relevant when it has a tendency to prove or disprove of consequence to the determination of a proceeding.

Question 5

What facts need to be proven in issue?

Answer 5

• prosecution must prove to establish the elements
• the defendant must prove to succeed with a defence in which he or she carried the burden of proof

Question 6

What are exclusionary rules In relation to evidence?

Answer 6

Rules that exclude evidence due to:
- being unreliable
- unduly prejudicial
- unfair to admit it

Question 7

What is the weight of evidence and three considerations..

Answer 7

The “weight” of evidence is its value in relation to the facts in issue.

• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• the extent to which it is supported or contradicted by other evidence produced
• the veracity of the witness.

Question 8

What is the purpose of the evidence act including 6 points?

Answer 8

• facts to be established by the application of logical rules.
• providing rules which recognise the importance of the NZ bill of
  Rights act 1990
• providing fairness to parties and witnesses.
• protecting rights of confidentiality and other important public interests
• avoiding unjustified delay and expense
• enhancing access to the law of evidence

Question 9

The exclusive rules of evidence deal with … (6 things)

Answer 9

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

Question 10

4 factors that assist in determining if evidence is admissible

Answer 10

• relevance
• reliability
• unfairness
• public interest

Question 11

Child complainants corroboration warning rule

Answer 11

The judge cannot warn a jury of any absence of corroboration of a child’s evidence if them same rule applied for adults.

Question 12

What is a reasonable doubt?

Answer 12

An honest and reasonable uncertainty about the guilt of the offender after considering all available evidence

Question 13

Explain the balance of probabilities

Answer 13

It must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.

Question 14

3 ways that a witness can give evidence in court..

Answer 14

• the ordinary way, verbally in front of a judge, jury and defendant.
• the alternative way such as through video link or screens.
• any other way provide for the evidence act 2006 or any other enactment

Question 15

What are the Standards of proof on the prosecution and on defence?

Answer 15

• Prosecutions burden of proof is beyond reasonable doubt
• Defence burden of proof is proved on the balance of probabilities

Question 16

R v Wanhalla

Answer 16

• the starting point is the presumption of innocence until the crown has proven guilt
• the crown must prove the guilt beyond reasonable doubt which is a very high standard
• it is not enough for the crown to pursue a probable belief in guilt

Question 17

Detail “offer evidence” and “giving evidence”

Answer 17

Evidence must be elicited before it is offered

• A party offers evidence, simply putting a proposition to a witness is offering evidence.
• a witness gives evidence

Question 18

Details 3 ways to give evidence

Answer 18

1. The ordinary way - orally in the court room in the presence of the judge and/or jury.
2. An alternative way - in the courtroom but witness is unable to see the defendant such as AVL, screens.
3. In other ways provided by the evidence act 2006

Question 19

Define “incriminate”

Answer 19

To provide information that is likely to influence criminal proceedings against a person

Question 20

Define “proceeding”

Answer 20

A proceeding conducted by a court and any application to the court connected with a proceeding

Question 21

What is a Statement?

Answer 21

A spoken or written assertion by a person, or non verbal conduct of a person to an assertion of any matter

Question 22

Define witness

Answer 22

A person that gives evidence and is able to be cross examined in a proceeding

Question 23

Define “hearsay statement”

Answer 23

This is a statement made by a person other than a witness and is offered as evidence in a proceeding. Such statements may be excluded if not for the purpose of proving the truth of its contents.

Question 24

Define veracity

Answer 24

A persons disposition (quality’s and character) to refrain from lying wether generally or in a proceeding

Question 25

Define propensity

Answer 25

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

Question 26

Define “direct evidence”

Answer 26

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

Question 27

Circumstantial evidence

Answer 27

Does not directly prove an offence however allows for inference

Question 28

What is an enforcement agency

Answer 28

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

Question 29

What makes good evidence?

Answer 29

• 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

Question 30

Explain judicial notice of a fact?

Answer 30

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.

Question 31

Explain privilege

Answer 31

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

Question 32

List 8 types of privilege

Answer 32

• 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

Question 33

What is a judges role in a Jury trial

Answer 33

• 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

Question 34

What is the relationship between the veracity and propensity rule

Answer 34

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

Question 35

Explain the veracity rule (what is it and when can veracity evidence to introduced)

Answer 35

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

Question 36

What is “voir dire”?

Answer 36

A hearing around admissibility of evidence were the jury is excluded from a court room.

These are referred to a preliminary facts.

Question 37

Explain Hart v R

Answer 37

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

Question 38

Explain the “Woolmington principle”

Answer 38

• 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

Question 39

Multi choice Q on live issue

Answer 39

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

Question 40

Exceptions to the Woolmington rule

Answer 40

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

Question 41

Corroboration is not necessary unless it is in relation to what 4 situations:

Answer 41

• perjury
• false oaths
• false statements
• treason

Corroboration is required as a matter of law

Question 42

Detail the opinion rule…

Answer 42

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.

Question 43

Define “circumstances” in relation to a person who isn’t a witness

Answer 43

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

Question 44

5 definitions of an “unavailable witness”

Answer 44

• 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

Question 45

Propensity evidence offered about the defendant and points for the judge to consider

Answer 45

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

Question 46

Claiming privilege against self incrimination in court proceedings

Answer 46

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

Question 47

Explain what Informers are are the right to privilege..

Answer 47

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

Question 48

Define an associated defendant

Answer 48

• 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.

Question 49

4 people who are not compellable to give evidence?

Answer 49

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

Question 50

Bank officers

Answer 50

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

Question 51

When can the prosecution offer evidence of the defendant’s veracity ?

Answer 51

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

Question 52

What’s the propensity rule?

Answer 52

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

Question 53

What’s the general rule about propensity evidence ?

Answer 53

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

Question 54

What is legal advice classed as?

Answer 54

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

Question 55

What can privilege be in relation to in regards to legal aid?

Answer 55

• 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

Question 56

Define statement

Answer 56

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

Question 57

Define hearsay evidence

Answer 57

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.

Question 58

When is a person eligible to give evidence?

Answer 58

• 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)

Question 59

People excluded from being able to give evidence during a trial ..

Answer 59

• 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)

Question 60

Compellability of a defendant and co offender/associates in hearings

Answer 60

• 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

Question 61

What must be done before a summons is served to appear in court?

Answer 61

• 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

Question 62

What do the exclusive rules of evidence deal with? 6 points

Answer 62

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

Question 63

Hearsay rule

Answer 63

A hearsay statement is not admissible except:

When provided by the provisions of any other act and it is relevant

Question 64

What is the general admissibility of hearsay evidence

Answer 64

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

Question 65

Issues with Reliability of hearsay

Answer 65

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

Question 66

The conduct of a Jury trial (9 Steps)

Answer 66

• 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

Question 67

What happens with Persons under and over 12 giving evidence?

Answer 67

• 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

Question 68

What may a judge give warning of during a trial

Answer 68

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

Question 69

Type of Expert evidence that’s admissible

Answer 69

Expert evidence may consist of:

• facts
• opinions
• mixture of the two

to assist a fact finder to understand.

Question 70

What is an expert

Answer 70

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

Question 71

Why is some evidence inadmissible?

Answer 71

• lack of reliability
• lack of fairness
• lack of public interest

Or a combination of all three

Question 72

General exclusion rule of evidence

Answer 72

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

Question 73

Explain the presumptions of law and give an example

Answer 73

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)

Question 74

Explain a presumption of fact and give an example

Answer 74

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

Question 75

How to determine admissibility of evidence

Answer 75

It is admissible if it can be legally received by the court.

If it can’t be legally received it is inadmissible

Question 76

List 4 factors when considering if evidence is admissible

Answer 76

• relevance
• reliability
• unfairness
• public interest

Question 77

When is evidence relevant

Answer 77

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

Question 78

Explain privilege information in regard to Minister of religion

Answer 78

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

Question 79

When does privilege apply regarding information obtained by medical practitioners

Answer 79

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

Question 80

Explain the protection of journalists sources

Answer 80

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.

Question 81

Can you refresh a witnesses memory in court?

Answer 81

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

Question 82

Explain the previous consistent statement rule

Answer 82

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

Question 83

When will the duty to cross examine arise

Answer 83

• 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

Question 84

What are inappropriate questions

Answer 84

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

Question 85

What factors should be considered around whether a question is unacceptable .,,

Answer 85

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

Question 86

Difference between a hostile and unfavourable witness

Answer 86

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.

Question 87

2 purposes of cross examination

Answer 87

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

Question 88

When are leading questions permitted .. 4 situations

Answer 88

• 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

Question 89

Types of Questions that can be asked of hostile witnesses

Answer 89

If a witness is displaying active hostility they may be asked:

• leading questions
• probing questions
• asking questions regarding previous inconsistent statements
• challenges of veracity

Question 90

What is a hostile witness

Answer 90

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

Question 91

List three people that can comment on a persons decision to silence at their trial

Answer 91

1. Defendant
2. Defendants council
3. Judge

Question 92

What is the purpose of evidence in chief

Answer 92

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

Question 93

Why are leading questions not prohibited? (Why doesn’t the court like Leading Questions..)

Answer 93

• 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

Question 94

Evidence given by children …

Answer 94

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

Question 95

How do you address a Judge?

Answer 95

“Your honour” or “sir/ma’am”

Question 96

What are the limits on re-examination of witnesses ..

Answer 96

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

Question 97

Explain evidence in rebuttal and recalling witnesses

Answer 97

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

Question 98

6 Judicial warnings to a Jury

Answer 98

• 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

Question 99

What are facts in issue?

Answer 99

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.

Question 100

What was held in Woolmington v DPP?

Answer 100

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.

Question 101

Explain the difference between the terms “beyond reasonable doubt” and on the “balance of probabilities”.

Answer 101

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.

Question 102

What are the six objectives of the Evidence Act 2006 as set out in s6?

Answer 102

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.

Question 103

What are the two ways in which unfairness usually arises and may result in the exclusion of evidence?

Answer 103

• 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.

Question 104

Specific restrictions aside, if evidence is admitted, for what purposes can it be used?

Answer 104

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”

Question 105

What is the propensity rule of evidence?

Answer 105

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.

Question 106

What is the definition of a hearsay statement in the Evidence Act 2006?

Answer 106

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”

Question 107

Define an “expert” under s4 of the Evidence Act 2006.

Answer 107

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

Question 108

When would a communication with a legal adviser be ‘privileged’?

Answer 108

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.

Question 109

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations.

Answer 109

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.

Question 110

What is the meaning of self-incrimination under s4 of the Evidence Act 2006?

Answer 110

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”

Question 111

What types of offences are considered by law to require corroboration?

Answer 111

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).

Question 112

What is the role of a judge in a trial by jury?

Answer 112

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.

Question 113

Define “leading question” under s4 of the Evidence Act 2006.

Answer 113

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

Question 114

What is the purpose of cross-examination?

Answer 114

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.

Question 115

Definition of Relevance and Facts in Issue?

Answer 115

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

Question 116

Giving evidence may be given in what ways?

Answer 116

• 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.

Question 117

Definition of Hearsay statement

Answer 117

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.

Question 118

Definition of Veracity

Answer 118

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

Question 119

Definition of propensity

Answer 119

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.

Question 120

Definition of direct evidence

Answer 120

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.

Question 121

Definition on circumstantial evidence

Answer 121

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.

Question 122

Woolmington Principle: Presumption of innocence?

Answer 122

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.

Question 123

Exceptions to principle that burden of proof is on the prosecution?

Answer 123

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.

Question 124

Beyond Reasonable Doubt?

Answer 124

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’.

Question 125

Definition of Balance of Probabilities

Answer 125

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

Question 126

What’s the purpose of the evidence act law?

Answer 126

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.

Question 127

What is Judicial Notice?

Answer 127

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.

Question 128

What is Presumptions of law

Answer 128

Presumptions of Law are inferences that have been expressly drawn by law

Presumptions of law may be either conclusive or rebuttable.

Question 129

What are presumptions of fact

Answer 129

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.

Question 130

Court Refers to four principles

Answer 130

• Relevance
• Reliability
• Unfairness
• Public Interest

Question 131

Define material relevance

Answer 131

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

Question 132

Define probative relevance

Answer 132

whether the evidence has a logical tendency to prove or disprove

Question 133

General exclusion rules for evidence

Answer 133

• 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.

Question 134

Voir Dire

Answer 134

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

Question 135

The exclusive rules of evidence deal with (6 things):

Answer 135

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

Question 136

What a judge must consider when propensity evidence is offered about a witness

Answer 136

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.

Question 137

When may the prosecution offer evidence on a defendant’s veracity?

Answer 137

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.

Question 138

Define propensity evidence

Answer 138

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.

Question 139

Define hearsay statement

Answer 139

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.

Question 140

5 reasons a person is unavailable as a witness

Answer 140

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.

Question 141

Rule against opinion evidence

Answer 141

• 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.

Question 142

Define an expert and expert opinion evidence

Answer 142

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

Question 143

Who is compellable as a witness in court

Answer 143

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.

Question 144

What is privilege and 8 types

Answer 144

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

Question 145

4 offences where corroboration is necessary

Answer 145

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

Question 146

Judges role in trial by jury

Answer 146

• 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.

Question 147

The prohibition on leading questions

Answer 147

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.

Question 148

When leading questions are permitted

Answer 148

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.

Question 149

Can a witness refresh their memory in court?

Answer 149

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.

Question 150

Detail the Previous consistent statements rule

Answer 150

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.

Question 151

What can be asked of a hostile witness?

Answer 151

• 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).

Question 152

Define a hostile witness

Answer 152

• 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).

Question 153

Purpose of cross examination

Answer 153

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).

Question 154

In any proceeding, the Judge may disallow, or direct that witness is not obliged to answer any question that the Judge considers:

Answer 154

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

Question 155

Explain Evidence in Rebuttal

Answer 155

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.

Question 156

Judicial Warnings a judge may give to the jury

Answer 156

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

Question 157

Judges warnings for children giving evidence

Answer 157

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.