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CIB Modules 2020 > Evidence 009 > Flashcards

Flashcards in Evidence 009 Deck (77)
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1

Define the term 'evidence'.

“Evidence” is the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision. Evidence may be in oral, written or visual form.

2

What makes evidence admissible?

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

3

What makes evidence relevant? (s7(3), Evidence Act 2006)

Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”

4

To what does the term 'facts in issue' refer?

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.

5

What are 'exclusionary rules'?

Rules that exclude evidence, usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it.

6

What is the 'weight' of evidence?

The weight of evidence is its value in relation to the facts in issue or the degree of probative force that can be accorded the evidence.

7

What are the three ways in which evidence may be given?

1. In the ordinary way - orally in a courtroom, in an affidavit filed in court, or by reading a written statement in a courtroom.

2. 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.

3. In any other way - provided for by the Evidence Act 2006 or any other relevant enactment.

8

Define the term 'incriminate'.

To provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.

9

Define the term 'statement'.

A spoken or written assertion by a person of any matter or non-verbal conduct of a person intended by that person as an assertion of any matter.

10

Define the term 'hearsay statement' in one sentence.

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

11

Define the term 'veracity'.

The disposition of a person to refrain from lying, whether generally or in a proceeding.

12

Define the term 'direct evidence'.

Any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced.

13

Define the term 'circumstantial evidence'.

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

14

What does the Woolmington principle establish?

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.

15

In relation to burden of proof, explain the practical obligation on the defence.

- If the prosecution proves facts from which it can be concluded that the defendant committed the act with the requisite element, then the defendant has to produce some story or evidence if he or she wants to suggest the conclusion is wrong.
- This is not a burden of proof. The defendant does not have to prove anything.
- It applies where defendants wish to state that they did not do the act or have the necessary mental element, but where they do not wish to put up a particular defence.
- It's a practical obligation to point to some evidence that suggests reasonable doubt.

16

In what situation would there be an evidential burden on the defence?

If the defendant wishes to put up a defence to the charge.

17

The Woolmington principle establishes that the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence. There are exceptions. List three exceptions.

1. The defence of insanity is claimed

2. Express statutory exceptions exist. Eg, s202A(4)(b), possession of an offensive weapon.

3. Public welfare regulatory offences.

18

Discuss the difference in the standard of proof required between the prosecution and the defence.

Prosecution = beyond reasonable doubt

Defence = balance of probabilities

19

How is the concept of 'beyond reasonable doubt' defined in R v Wanhalla?

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

20

Define the concept of 'balance of probabilities'.

Where the defence is required to prove a particular element (eg. insanity) the defence must simply show that it is more probable than not.

If the probabilities are equal the burden is not discharged.

21

Explain the purpose of the Evidence Act.

Section 6, Evidence Act 2006

The purpose of this Act is to help secure the just determination of proceedings by -

(a) providing for facts to be established by the application of logical rules AND
(b) providing rules of evidence that recognise the importance of the rights affirmed by the NZ BOR Act 1990 AND
(c) promoting fairness to parties and witnesses AND
(d) protecting rights of confidentiality and other important public interests AND
(e) avoiding unjustifiable delay AND
(f) enhancing access to the law of evidence.

22

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence. There are two main exceptions to the general rule. What are they?

When no evidence needs to be given of facts because
- judicial notice is taken
- the facts are formally admitted

23

Explain the concept of judicial notice. Provide an example.

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. Eg. If the date of Christmas were a fact in issue.

24

Which two sections of the Evidence Act 2006 provide for judicial notice and to what do they relate?

s128 - Notice of uncontroverted facts

s129 - Admission of reliable published documents

25

Explain what 'facts formally admitted' are.

In a trial the counsel for either party can accept that some evidence is accepted or proven at the outset so it need not be discussed.

26

What is a presumption of law? Give an example.

An inference that has been expressly drawn by law from particular facts. Eg, a child under 12 years is unable to be convicted.

27

What is a presumption of fact? Give an example.

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

28

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. List three of those principles.

- Relevance
- Reliability
- Unfairness

29

Explain the section 8 test.

The section 8 test involves balancing the probative value of evidence against the risk that it will:
- have an "unfairly prejudicial effect on the proceeding" (s8(1)(a)) OR
- "needlessly prolong the proceeding" (s8(1)(b))

30

What must be taken into account under s8(2)?

"...the right of the defendant to offer an effective defence."