Evidence Flashcards
(205 cards)
1
Q
What is the definition of evidence
A
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 oral written or visual
2
Q
Define admissable evidence
A
If it is legally able to be received by a court
3
Q
Define relevance
A
If it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding (s7(3) EA 2006)
4
Q
What are facts in issue?
A
Facts which in law need to be proven to succeed with the case. Facts relevant to the facts in issue tend to prove to disprove a fact in issue
-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
Q
What are exclusionary rules?
A
Rules that exclude evidence usually because it is unreliable, unduly prejudicial or otherwise unfair to admit
6
Q
What does weight mean in relation to weight of evidence?
A
The degree of probative force that can be given to the evidence
7
Q
What is weight of evidence?
A
It’s value in relation to the facts at issue. The value will depends on lots of things such as;
-the extent to which, if accepted, it is directly relevant to or conclusions be of, those facts
-the extent to which it is supported or contradicted by other evidence provided
-the veracity of the witness
8
Q
Define witness
A
A person who gives evidence and is able to be cross examined in a proceeding
9
Q
What is veracity?
A
This is the disposition of a person to refrain from lying, whether generally or in a proceeding
10
Q
Define propensity
A
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
11
Q
Define direct evidence
A
Any evidence given by a witness as to a fact at issue that he or she has seen, heard or otherwise experienced. E.g. an eye witness who states that she saw the defendant stab the complaining with a knife
12
Q
Define circumstantial evidence
A
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 e.g. being seen in the vicinity of the crime
13
Q
Define enforcement agency
A
Nzp or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including NZ Customs, ministry of fisheries and IRD
14
Q
Define offer evidence
A
Evidence must be elicited before it is offered. Just putting a proposition to a witness is not offering evidence; it become so when the witness accepts the proposition. Offering evidence includes eliciting evidence by cross examination of a witness called by another party
15
Q
Define giving evidence
A
Giving evidence is included in offering evidence, a witness gives evidence ; a party offers evidence
A party who testifies but the gives and offers evidence
16
Q
What ways can someone give evidence?
A
Orally in a courtroom
An affidavit filed in court or by reading a statement if prosecutions and defence consent and it is the personal statement of the deponent or maker
AVL
Behind a screen
Video recording
Any other way provided by EA 2006 or any other enactment
17
Q
Define incriminate
A
Provide Information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence
18
Q
Define proceeding
A
Proceeding conducted by a court, and any application to a court connected with a proceeding
19
Q
Define statement
A
Spoken or written assertion by a person, or non verbal conduct of a person intended by that person as an assertion of any matter
20
Q
What is a hearsay statement?
A
a Statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents
21
Q
What is the Woolmington principal?
A
The presumption of innocence. Subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
22
Q
What are some limitations of the Woolmington principal
A
The defence of insanity
The burden of proof is reversed
Practical obligation
Evidential burden
Or the Woolmington principal may be seen simply not to apply
23
Q
What is a practical obligation on the defence?
A
If the prosection proves facts from which it can be concluded that the defendant committed the act with the required mental element then the defendant has to produce some story or evidence if they want to suggest the conclusion is wrong or they did not do the act or have the necessary mental element. This is not a burden of proof, the defendant does not have to prove anything. This applies when the defendant wishes to state that they did not do the act or have the means Rea but where they don’t wish to put up a particular defence.
24
Q
What is evidential burden on defence?
A
When the defendant wishes to put up a defence to a charge this creates evidential burden on them to prove that defence . The prosecution is under no obligation to negate all possible defences.
25
Where the onus falls on the defence to prove a particular element, the standard of proof required is?
On the balance of probabilities
26
Circumstantial evidence has been defined as
A fact that by inference can prove another fact in issue
27
Once the judge has granted an application to treat a witness as hostile, that witness may be:
Q
1: asked leading questions
2: questions as prior inconsistent statements
3: asked any question whatsoever whether relevant to the matter under enquiry or not
4: tested on such matters as the accuracy of his/her memory and perception
1,2 and 4 only are correct
28
What is the meaning of veracity?
A disposition to refrain from lying
29
What is the general purpose of the evidence-in-chief is to?
Elicit testimony that supports the case of the party calling that witness
30
Corroboration of a complainants statement is not necessary in a criminal proceeding except for the following offence:
False oaths
31
When is a witness eligible to give evidence?
They are lawfully able to give evidence on behalf of both prosecution and defence
32
Which is not an example where judicial notice can be taken?
The date of birth of a complainant under 16 (weird)
33
An oath and affirmation may be taken by?
Any witness 12 years and over involved in a proceeding
34
What must an expert witness demonstrate when they give evidence?
That they have the qualifications to be deemed an expert
35
What did the case Woolmington v DPP establish in relation to the presumption of innocence?
The fundamental principle in criminal law is the presumption of innocence, known as the Woolmington principal. This principle establishes that, subject to specific statutory exceptions, the burden of proof clearly lies with the prosecution in relation to all the elements of the offence
36
What is the definition of a hostile witness?
-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 reasonable be supposed to have knowledge OR
-give 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
37
What four fundamental principles of evidence law do the court need to consider in deciding whether evidence is admissible?
Public interest
Unfairness
Reliability
Relevance
38
What is a leading question?
A leading question as in that directly or indirectly suggests a particular answer to the question
39
What is the general rule in relation to leading questions?
Leading questions may not be asked during examination-in-chief or re-examination
40
Briefly explain what a voir dire is?
A hearing where evidence is given by a witness to prove the fact necessary for deciding whether some other evidence should be admitted in a proceeding
-it is conducted without a jury present
41
What is burden of proof?
-Whoever asserts something must prove it
-In criminal cases the burden of proof is on the crown. All that the defendant needs to do is raise doubt as to their guilt
-In a criminal case the prosecution must prove every essential ingredient of the offence beyond reasonable doubt
42
List four categories of privilege
Professional confidence
Public policy
Police informant
Privilege against self incrimination
Marital privilege?
43
Before giving evidence in court how can a witness refresh their memory?
Their original statement
Their deposition
44
Who is eligible and compellable to give evidence?
Any person who is eligible to give evidence is compellable
45
What is an example of being unavailable as a witness?
(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
46
What is a presumption of law?
are inferences that have been expressly drawn by law from particular facts , may be rebuttable or conclusive
47
How do you address the judge in court?
Your honor or sir/maam
48
When does the court had discretion to include propensity evidence against a defendant
When the probative value outweighs the prejudicial effect
49
In relation to privilege of medical practitioners , "protected communication" refers to communication made by the patient to the doctor for them to examine, treat or act for the patient in what two circumstances?
Who is suffering a drug dependency
Who has any other condition or behaviour that manifests itself in criminal conduct
50
What are uncontroversial facts admitted as?
Judicial notice
51
Section 25 of the EA governs admissibility of expert evidence. If the evidence lead is opinion evidence, then in order to comply with the section 25 the opinion must....
Be that of an expert
Comprise expert evidence
Offer substantial help to the fact finder in understanding other evidence of ascertaining any fact in the proceeding
52
The fundamental principle in criminal law is the presumption of innocence and that the burden of proof lies with prosecution. What are the two exceptions to this rule?
There are exceptions to the general principle , which means in some cases burden of proof reverses and falls on the defendant
-where there exist specific statutory exceptions
-where section 67(8) of the summary proceedings act 1957 applies
53
What is the two prong test for relevance of evidence?
Materiality asks whether the evidence if offered on a matter of fact at issue in the case of consequence to the determination of the proceeding
- probativeness asks whether the evidence has a logical tendency to prove or disprove the material proposition on which it is offered
54
In relation to section 37, veracity rules, what does a judge need to take into account?
-Lack of veracity on the part of the person when under a legal obligation to tell the truth
-That the person has been convicted of one or more offences that indicate a propensity for dishonesty or lack of veracity
-Bias on the part of the person
-Any previous inconsistent statements made by the person
-A motive in the part of the person to be untruthful
55
What are presumptions of facts
Presumptions of fact are those that the mind naturally and logically draw from the facts given
56
What is an example of offences that 'sit outside' the Woolmington Principal?
Public Welfare Offences, where the purpose is to regulate everyday conduct having a tendency to endanger the public or sections of the public. These are strict liability offences where there is no need to prove a mens rea.
57
What are the exceptions for burden of proof?
The defence of Insanity
Statutory exceptions such as, possession of an offensive weapon where prima facie the circumstances show an intent to cause harm. The defendant can show they are innocent with a defence of not having the required intent
58
What is the burden of poof on prosecutions?
Beyond Reasonable Doubt
59
What was held in the case of R V Walhalla in regards to reasonable doubt?
That a reasonable doubt is 'an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful consideation to all of the evidence'.
60
What was held in relation to presumption of innocence in R V Walhalla
The starting point is presumption of innocence. You must treat the accused as innocent until the Crown has proved their guilt. The presumption of innocence means the accused does not have to give or call any evidence and does not have to establish their innocence.
61
What does the Crown need to do to prove something beyond reasonable doubt?
If at the end of the case you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty. On the other hand it is virtually impossible to prove anything to an absolute certainty and the Crown does not have to do so.
62
What is reasonable doubt?
an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence
63
How does the defence prove something on the balance of probabilities?
It must simply show that it is more probable than not, if the probabilities are equal, the burden is not discharged.
64
What do the rules of evidence determine?
The form in which, and the means by which, evidence may be presented to the Court. They are to be found both in specific statutory provisions and in case law.
65
What was held in Woolmington V DPP?
That the prosecution has a duty to prove the prisoners 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
66
What are the objectives of the Evidence Act?
Aims to help secure just determination of proceedings by;
-Providing for facts to be established by application of logical rules
-Promoting fairness to parties/witnesses
-Avoiding unjustifiable expense and delay
-Enhancing access to law of evidence
67
What makes good evidence?
Establish what you are tying to prove. Facts must prove elements of the charge and evidence should be made up of facts proving the charge. General rule that all facts in issue and facts relevant to issue must be proved.
68
What is the general rule about facts, exceptions and presumptions?
All facts in issue and facts relevant to the issue must be proved by evidence
69
What are the two main exceptions to the general rule when no evidence needs to be given of facts :
-Judicial Notice is taken
-The facts are formally admitted
70
What is judicial notice?
Declaring that a facts exist even though no evidence has been established that the facts exist.
71
Define presumption of law
Presumptions of law are inferences that have been expressly drawn by law from particular facts. Presumptions of law may be conclusive or rebuttable.
72
What is an example of conclusive and irrebuttable Presumption of law and a rebuttable presumption of law
Conclusive and irrebuttable is that a 10 year old can't be convicted of an offence.
Rebuttable is that someone is innocent until proven guilty
73
What is presumption of facts?
presumptions of facts are those that the mind naturally and logically draws from the given facts. For example, one presumes that someone in possession of recently stolen goods has guilty knowledge.
All presumptions of facts are rebuttable
74
How is evidence determined admissible?
When deciding it is considered if the evidence is relevant, reliable and unfair.
Any evidence in which an individual juror might rely on in reaching a conclusion as to guilt is admissible.
75
When is relevant evidence not admissible?
-If it is inadmissible under this Act or any other Act OR
-Excluded under this act or any other act
-Not relevant
76
What is an example of evidence that is relevant but inadmissible?
Evidence that has been improperly obtained
77
Generally speaking why would evidence be excluded or ruled inadmissible? (Principals of evidence Law)
A lack of ;
-reliability
-Fairness
-Public Interest
OR a combination of these
78
What are the two ways unfairness is decided by the trial judge?
-If it would result in some unfair prejudice in the proceeding
-Where evidence has been obtained in circumstances that would make its admission against the defendant unfair. e.g. a confession obtained by unfair or improper methods
79
When MUST the judge exclude evidence? (S8)
If its probative value is outweighed by the risk that the evidence will;
-Have an unfairly prejudicial effect on the proceeding OR
-Needlessly prolong the proceeding
80
When a Judge determines whether the probative value of the evidence is outweighed by the risk that the evidence will have an unfairly prejudicial Effect on the criminal proceedings, what must the judge take into account?
The defendants right to offer an effective defence
81
Can a judge decline to admit evidence if both prosecution and defence agree to the admission of the evidence?
yes
82
Section 14 of the evidence Act?
Where a questions arises concerning the admissibility of any evidence the judge MAY admit the evidence, subject to further evidence being offered later which establishes its admissibility. If the other evidence doesn't establish the admissibility the Judge MUST exclude the original evidence.
83
Section 15 of the Evidence Act
Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted. This is commonly referred to as a 'Hearing in Chambers' or Chambers hearing' because the Jury will be excluded during the admissibility hearing
84
What are some examples where the Evidence Act limits the use of evidence?
S27 - Which controls the use of pre-trial statements of defendants and co-defendants
S31 - Which forbids the prosecution from relying on certain evidence offered by defendants in criminal cases
S32 - Which forbids the fact-finder from using a criminal defendants pre-trial silence as evidence of guilt.
85
For facts to be received as evidence they must be....
relevant, reliable, fair and admissible
86
What is relevant evidence?
Any evidence that tends to prove or disprove anything that is consequence to the determination of the proceeding
87
What does section 8 set out?
Have an unfairly prejudicial effect on the proceeding
Needlessly prolong the proceeding
The judge must take into account the right of the defendant to offer an effective defence when weighing up probative value
88
What does the section 8 test involve?
Balancing the probative value of the evidence against te risk hat it will have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding
89
Specific restrictions aside, if evidence is admitted, for what purposes can it be used?
It can be used for all purposes. the statute proceeds on the basis that generally speakin evidence is either admissible for all purposes or it is not admissible at all R V HART.
90
What was held in R V GWAZE?
That rules of admissibility, icluding s7 ad 8 are rules of law and are not matters of descretion.
91
What are the two classes of character evidence?
Veracity and propensity
92
When do veracity and propensity not apply?
Veracity does not apply to evidence about a persons veracity if the veracity is an element of the offence which a person is being tried (E.g. Perjury)
Propensty and veracity don't apply to bail or sentencing hearings except when the evidence is covered by S44 (Where is relates directly or indirectly to the complaints sexual experience with any one other than the defendant).
93
What are things the judge considers when thinking about the veracity of evidence offered?
-The lack of veracity on the part of the person when under legal obligation to tell the truth ( For example in an earlier proceeding or signed declaration)
-That the person has been convicted of one or more offences that indiccate a propensiy for dishonesty or lack of veracity
-Any previous inconsistent statements made by the person
-Bias on the part of the person
-Motive on the part of the person to be untruthful
94
When prosecution or defence call a witness can they offer evidence to challenege the witnesses veracity?
No, if they call the witness they can only chalenege the witnesses veracity if the witness is declared hostile by the Judge BUT
They may offer evidence as to the facts at issue contrary to the evidence of that witness
95
When will veracity evidence be admissible?
Only when it is substantially helpful in assessing the veracity of the person.
96
What are two instances where substantial helpfulness is not admissible?
Where prosecution wish to offer evidence about a defendants veracity AND
Where a defendant offers evidence about a co-defendants veracity
97
How ma a judge decide if veracity evidence is sunstantially helpful?
The judge may consider Section 37 (3) (a) - (e)
The lack of veracity on the part of the person when under legal obligation to tell the truth ( For example in an earlier proceeding or signed declaration)
-That the person has been convicted of one or more offences that indiccate a propensiy for dishonesty or lack of veracity
-Any previous inconsistent statements made by the person
-Bias on the part of the person
-Motive on the part of the person to be untruthful
98
What was suggested in R V K about veracity?
someones reputation for veracity is potentially admissible under section 37, but the substantial helpfulness threshold will only be met in exceptional cases.
99
What does propensity mean?
Propensity is evidence tht shows a persons propensity to act in a particular way or have a particular state of mind
100
What does propensity exclude?
Evidence of an act or omission that is one of the elements of the offence for which the person is being tried.
Evidence that is solely or mainly about veracity
101
When can a defendant offer evidence about their veracity?
provided it meets the substantial helpfulness test set out in section 37.
102
When can the prosecution offer evidence as to the defendants veracity?
-With permission from the judge
-The proposed evidence meets the substantial helpfulness test
-If its relevant, the defendants veracity has to be in issue.
-The defendant has offered evidence about their own veracity or has challenged the veracity of a prosecution witness by referencing other matters than the facts at issue (The defendant must have orchastrated this evidence)
103
What may the Judge take into accoutn when deciding whether to give permission to the prosecution to question the defendant about their own veracity?
-The extent to which the defendants veracity, or the veracity of a prosecution witness has been put in issue in the defendants evidence
-The time that has elapsed since any conviction about which the proscution seeks to give evidence
-Whether any evidence any evidence about veracity was elicited by the prosecution
104
When can the proseution not offer evidence as to the veracity of the defendant?
If an attack on the prosecutions witness's veracity was in reference to the factin issue
105
What it the general rule about propensity?
That a party may offer propensity about any person. This is subject to rules about restrictions on propensity in relation to defendants and victims of sexual violence
106
Under section 41, What type of propensity evidence can a defendant offer up about themselves?
-Good character evidence
-Evidence of Disreputable conduct about them self
-Neutral propensity such as attending a class every Tuesday so as to provide an alibi.
107
Under section 41, What type of propensity evidence can a defendant offer up about themselves?
Can be offered through witnesses or direct evidence from them self.
-Good character evidence
-Evidence of Disreputable conduct about them self
-Neutral propensity such as attending a class every Tuesday so as to provide an alibi.
108
Under section 41, what happens if the defendant offers propensity evidence for themselves?
They open up to prosecution, with permission of the judge, giving propensity evidence about that defendant.
109
Under R v Rei what are the three requirements for the admission of propensity evidence?
-Evidence must be propensity evidence
-Have a probative value in relation to an issue in dispute including those outlined in 43(3)
- The probative value outweighs the risk of it having a prejudicial effect on the defendant
110
Under section 43 what does the judge need to consider when deciding the prejudicial effects of the evidence?
The judge MUST consider;
-Whether the evidence is likely to unfairly predispose the fact-finder against only the defendant
-The fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
111
In relation to section 43, who is the onus on to prove the probative value outweighs the prejudicial effect on the defendant?
Prosecutions
112
What should the Court focus on when considering section 43? (Propensity evidence offered by prosection about defendants)
As in Mohamed v R, “We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law.The Act substantially codified that case law and it is preferable, and consistent with s10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.”
113
What is prior acquittal evidence?
The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence
114
When assessing the probative value of evidence, what MUST the judge take into consideration ?
The nature of the issue in dispute.
Once the judge has considered the nature of the issue in dispute under s43(2), he or she may consider the non-exhaustive list of issues in s43(3). Other matters not listed may be considered, such as the strength of other evidence of the defendant’s guilt. The matters listed reflect the fact that the propensity evidence must have some relevance to the facts in issue over and above merely showing that the defendant has a propensity to do bad things. They reflect issues that have aided the assessment of probative value in previous cases.
115
If a witness gives hearsay evidence about another witness that is available to be cross examined, what happens?
This is not hearsay. If a witness is able to be cross-examined the hearsay rule is no longer in play.
116
What is an unintended assertion?
The definition of “statement” does not include a statement or non-verbal conduct that is not intended to be an assertion. For example, if an experienced seaman checked over a yacht before taking his family on it, this may imply that the vessel was seaworthy. Under previous law, such an implied assertion would have been likely to have been seen as hearsay. Now, unless it was clear that the man intended to assert that the yacht was seaworthy, it will not be a statement and will not be hearsay.
117
What is the focus of the hearsay rule?
The purpose for which the evidence is offered rather than just the fact it is an out-of-court statement.A statement offered for some other purpose, for example merely to show that the statement was made, is not a hearsay statement and need not meet the hearsay admissibility test in s18 of the Evidence Act 2006.
118
Under section 18, General admissibility of hearsay, what are the two criteria?
* reliability, AND
* unavailability, or that “undue expense or delay would be caused”.
The notice requirement in s22 of the Evidence Act 2006 must also be met before a hearsay statement can be admitted.
119
What are the three points about the rationale around the reliability rule for hearsay evidence?
-No opportunity for cross-examination
-Juries can't see the demeanour of the person who made the statement
-Witness giving the evidence getting it wrong, Chinese whispers
120
What does the reliability test focus on?
the reliability of the hearsay statement itself, not the person giving it.
121
What does reasonable assurance of reliability mean?
that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to the weight to be placed on the evidence.
122
What factors should the court consider when determining whether the “circumstances relating to the statement provide reasonable assurance that the statement is reliable”
Section 16(1) Evidence Act 2006 defines “circumstances”:
circumstances, in relation to a statement by a person who is not a witness, include—
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person
123
What was said in R v GWAZE in relation to the definition of circumstances for the purpose of hearsay evidence?
“[The] definition of “circumstances” for the purpose of hearsay evidence makes it clear that the inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement,
- but also the nature and contents of the statement, and the circumstances relating to its making.”
124
What is an example of someone who cannot be compelled to testify?
The defendant in a criminal case
The Sovereign.
They are considered unavailable for the purposes of the hearsay rule.
125
What does section 16(3) say about witnesses who are unavailable?
Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.
126
When will a business document be admitted as hearsay evidence?
-When the person who supplied the information is unavailable OR
-the judge considers no useful purpose would be served by requiring that person to be a witness
-the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
127
For section 19 (Business hearsay evidence), is there a requirement of reasonable assurance that the statement is reliable?
No, however any challenge to the reliability of the statement may still affect the weight accorded to the evidence, or may lead to exclusion under s8.
128
What notice needs to be given when intending to admit hearsay evidence?
-Intention to offer the hearsay evidence AND-
-Name of the maker of the statement AND
-if made orally, the contents of the statement AND
-the circumstances relating to the statement that provide reasonable assurance that the statement is reliable;
-why the document is a business record;
-why the person is unavailable as a witness;
-why undue expense or delay
-
129
What is the definition of opinion?
A statement of opinion that tends to prove or disprove a fact
130
Under section 42, general admissibility of opinions, what are the two basic criteria?
* opinion must be the only way in which to effectively communicate the information to the finder of fact,
* the witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
131
What will an accepted non-expert opinion usually comprised of?
In general, non-expert opinion evidence will be accepted where the perceptions and statements of fact of the witness are conclusions in themselves, or where there is a mixture of inference and fact that cannot be separated.
132
What must expert opinion evidence contain as per section 25?
* be that of an “expert”
* comprise “expert evidence”, and
* offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.
133
When will expert opinion evidence be deemed admissible?
if the fact-finder is likely to obtain substantial help from the opinion in:
* understanding other evidence, or
* in ascertaining any fact that is of consequence in the determination of the proceeding.
134
What is the substantial helpfulness test?
a more rational test to assess the reliability and value of the expert opinion on its merits. Consideration of a miture of relevance, reliability and probative value.
135
What was said in R v TURNER in relation to proven facts
“Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant ones into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.”
136
What do the exclusion rules of evidence deal with?
− veracity
− propensity
− hearsay
− opinion
− identification
− improperly obtained evidence.
137
What is the criteria for admissibility of hearsay evidence?
Reliability AND
unavailability OR undue expense or delay
138
What are four principals expert witnesses should abide by as set out in R v HUTTON
* an expert must state his or her qualifications when giving evidence
* the facts, matters and assumptions on which opinions are expressed must be stated explicitly
* the reasons for opinions given must be stated explicitly
* the expert must not give opinion evidence outside his or her area of expertise
139
What must defence do if they intend to call an expert witness?
They must disclose the Brief of evidence or report at least 14 days before the date fixed for the trial.
140
What is a hearsay statement defined as?
A statement that contains:
(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”
141
What do you need to verify before summonsing someone?
* whether they are allowed to give evidence
* whether they are required to give evidence
* whether they can refuse to give evidence, and
* what type of witness they will be.
142
When a witness has entered the witness box and been sworn in what are the compelled to do?
Answer all questions put to them.
143
When can a co-defendant give evidence against another co-defendant?
-If they are being tried separately.
- The proceeding against the co-defendant giving evidence has been determined.
144
What is the meaning of when a proceeding has been determined?
It has been stayed, or in summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or
The associated defendant has been acquitted of the offence OR
They have been sentenced.
145
What is an associated defendant?
Committed an offence in the same event as the primary offender OR
Offences are related or connected
146
Who is not compellable to give evidence?
judges, in respect of their conduct as a judge, the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country, are not compellable to give evidence.
147
Are bank officers compellable?
where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.
148
What is the definition of privilege in relation to giving evidence?
the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
149
How is privilege Waived?
Privilege is waived by the person who is entitled to rely on it. The waiver ends the persons rights to the material
150
Who is covered under legal professional privilege?
-Under s54, any communication between a person and his or her legal adviser for the purposes of seeking or obtaining professional legal services, is privileged
-Under s56, communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding, are also privileged (this was termed “litigation privilege” under the previous law).
151
What are the five requirements of communications with legal advisors for them to be privileged?
1 - communication must be intended to be confidential
2- The communication must be made for the purposes of obtaining or giving legal services.
3- The privilege is vested in the person seeking or receiving the legal services.
4- The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
5- the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken.
152
What are some examples of privilege
-Comms w legal advisors
-Prep materials for proceeding
-Comms w ministers of religion
-Info obtained by medical practitioners/clinical psychologists
-Informer privilege
153
Prep materials for proceeding
-Applies comms/info made/received/compiled/prep for primary purpose prep for proceeding.
-Privilege if are/on RG contemplate becoming party to proceeding.
-Privilege can be in respect of comms between legal advisor and other person.
154
When will communications with a religious minister be considered privileged?
S58 Evidence Act 2006
Privilege if communication (all types – even if in document) was;
-Made in confidence in minister’s capacity as minister of religion AND
-Made for purpose obtaining/receiving religious/spiritual advice/benefit/comfort.
155
What is classed as a minister of religion?
Minister of religion if has a status in church or other religious/spiritual community that req;
-To receive confidential comms AND
-To respond w religious/spiritual advice/benefit/comfort.
156
When does privilege apply in relation to medical practitioners/clinical psychologists?
Applies to person who consults/examined by medical practitioner/clinical psychologist for drug dependency/other condition or behaviour that may manifest self in criminal conduct BUT doesn’t apply when req by judge to be examined/tested or when a third party communicates to the as a representative of the patient.
157
What is the definition of drug dependency?
state periodic/chronic intoxications produced by repeated use/consumption/smoking CD. Compulsive desire to continue.
158
What is the definition of a Clinical psychologist?
health practitioner reg under Health Practitioners Competence Assurance Act AND permitted diagnose/treat people suffering mental/emotional issues.
159
Define self-incrimination
Provision by person of info could reasonably lead/increase likelihood of prosecution.
160
When does privilege against self incrimination apply?
- Give info in course of proceeding
- By person exercising a statutory power/duty
- PO/other person in course of investigation into criminal offence/poss offence AND
If info given likely incriminate person under NZ law for offence punishable by fine/prison.
161
in relation to privilege against self-incrimination, a person must offer sufficient evidence to the judge that they are 'reasonably likely' to self incirminate, what does likely mean?
real and appreciateable, not merely imaginary and fanciful.
162
define informer
someone who has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed. This can include undercover
163
What are the two circumstances when privilege is disallowed under section 64?
The privilege under s64 must be disallowed by the judge where -there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence.
-it may be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.
164
When deciding on privilege in relation to jury deliberations, what two things must a Judge weigh up?
* the public interest in protecting the confidentiality of jury deliberations generally, and
* the public interest in ensuring that justice is done in those proceedings.
165
in Protection of journalists sources, who can order the protection will not apply and what do they need to consider?
A high Court Judge, if they are satisfied by a party to the proceeding that the public interest in disclosure of the identity outweighs;
* any likely adverse effect on the informant or any other person, of the disclosure, and
* the public interest in the communication of facts, and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
166
What happens if the journalist or their employer are willing to disclose the identity of their source?
Nothing. They can disclose it if they want to
167
What offences require corroboration?
Perjury
False statement
False Oath
Treason
168
What is privilege in relation to giving evidence?
right to refuse to disclose, or to prevent disclosure, of evidence that would otherwise be admissible.
169
What is a judges role in a trial by Jury?
* 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.
170
What are the two things witnesses under 12 must do before giving evidence?
* be informed by the judge of the importance of telling the truth and not telling lies, and
* after being given that information, make a promise to tell the truth, before giving evidence.
171
Whats the sequence of a jury trial?
-Jury empanelled, foreperson selected judges opening instructions
-Crown opening address
-Crown case presented
-Defence opening address
-Defence witnesses
-Crown closing address
-Defence Closing address
-Judge summing up
172
Under section 33, the defndants right to silence, what is the restriction?
In a criminal proceeding, no person other than the defendant, or the defendants counsel or the judge may comment on the fact that the defendant did not give evidenceat their own trial.
173
What is the purpose of evidence in chief?
To elicit testimony that supports the case of the party calling the witness
174
What is the general rule on leading questions?
The general rule is that leading questionsmay not be asked during evidence in chief or re-examination
175
Define leading questions
one that directly or indirectly suggests a particular answer to the question.
176
Why are leading questions generally prohibited?
because it will produce unreliable evidence because;
-People have a natural tendency to agree with suggestions put to them by saying yes.
-counsel asking leading questions of their own witnesses to elicit the evidence they wish to receive.
-They will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.
177
What are exceptions when leading questions are permitted?
The question relates to introductory or undisputed matters
The question is put with the consent of all other parties
The judge, in exercise of the judges discretion, allows the question
178
What are some examples of the judge allowing leading questions by discretion?
-Direct the witness's attention to the subject of identification evidence.
-in respect of a question about surrounfing circumstances in orde to jog a witness's memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
-Where the witness has been declared hostile.
179
What conditions must be satisfied if a witness wishes to consult a document while giving evidence?
-Leave of the judge must be obtained
-The documents must be shown to every other party in the proceeding.
-The document must have been made or adopted by a witness at a time when their memory was fresh.
180
When will a previously consistent statement be ruled admisible?
-It responds to a challenge that will be or has been made to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness OR
-Forms and integral part of the events before the Court OR
-Consists of the mere fact that a complaint has been made in a criminal case
181
What is the general rule in relation to previous consistent statements?
A witness cannot give evidence about statements made before the trial that are consistent with the evidence given at te trial unless the exceptions contained in 35(2) apply.
182
Once a witness is declared hostile, what kind of questions are able to be asked of the witness?
-Leading questions
-Questions designed to probe the accuracy of the memory and perception
-asking questions as to prior inconsistent statements
-other challenges as to varacity, including evidence from other witnesses (as long as that any evidence offered is substantially helpful, in assessing the witness's veracity)
183
Can prosecution or defence call a witness known to be hostile to them?
Yes, under R V Vagaia there is no rule rstricting a party from calling a witnesswho is known to be hostile to that party.
184
What are the three things that could mean a witness is hostile?
-The witness exhibits, or appears to exhibit, a lack of veracity when giving evidenceunfavourable to the party who called the witnesson a matter about which the witnes may reasonably be suposed to have knowledge OR
-Gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits or appears to exhibit and intention to be unhelpfulto the party who called the witness OR
-Refuses to answer questions or deliberately withhold evidence
185
Who decides if a witness is hostile?
It is a question of law so the judge decides on application from a party in the proceeding
186
How can you distinguish between a hostile witness and an unfavourable witness?
Witnesses who simply fail to come up to brief may be unfavourableto the pary calling them but they are not necessarily hostile.
187
What are the two purposes for cross-examination?
-To elicit informatoin supporting the case of the party conductting the cross-examination.
-To challenege the accuracy of the testiminy given in evidence-in-chief
188
Who has a right to cross-examine a witness
Everyone other than the one calling the witness
189
If defence or prosecution are intending to call evidence that will contradict the evidence in chief of a witness, what is required?
There is an obligation to put that contradictory material to the witness during cross-examination so that they can comment or explain
190
When does a duty to cross-examine arise?
-The cross-examine deals with 'significant matters' in the proceeding AND
-The matters are relevant and issue AND
-The matters contradict the evidence of the witness AND
-The witness may be reasonably expected to be in a position to give admissible evidence on those matters
191
Section 85 is about unaccetable questions, what does it give the Judge the power to do?
A wide discretion to control the nature of the questions and the manner in which they are put. The Judge can disallow and unacceptable question, or to direct that a witness is not obliged to answer the question posed.
192
As per section 96, a witness can be cross-examined on a previous statement (consistent or inconsistent), does that statement need to be shown to the witness?
If the time place and circumstances surrounding the statement are adequately identified to the witness then no they dont.
193
under section 96, what happens if a witnes does not expresly admit to making the statement they are being cross-examined on?
The party must show the wintess the statement if its is in writing or disclose its contents to th witnss if the statement is not in writing
The witness must be given the oppourtnuity to deny it or explain it
194
What are the limits on re-examination?
After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purpose of clarifying or qualifying any issue raised during corss-examiantion, but may not be questioned on any other matter, except with the permission of the judge.
195
If evidence is called by either party, Once a case is complete, in order to rebut something. What are four reasons that the evidence may be admitted by leave of the court?
-Relates to a purely formal matter
-relates to a matter arising out of he conduct of the defence, the relevance of which could not have been foreseen
-Was not available or admissible before the prosecutions case was closed OR
-Is required to be admitted in the interests of justice for any other reason
196
What are examples of when the judge may warn the jury about particular evidence?
-unreliable
-directions about cerain ways of giving evidence
-warning about lies
-childrens evidence
-Identification evidence
-delayed complaints or failure to complain in sexual cases
197
under section 122(1), when 'may' the Judge warn the jury about evidence?
if they think the evidence is unreliable, they can warn the Jury whether to accept the vidence and if they accept it, what weight should be given to it.
198
under section 122(2), when 'must' a judge consider giving a warning
-Hearsay evidence
-A statement by te defedant, if that evidence is the only evidence implicating the defendant (a confession)
-Evidence given by a witness who may have motive to give false vidence prejudicial to the defendant
-Statement made by the defendant to another erson while they were both in prison a Police station or a form of detention
-evidence of the conduct of the defendant if the conduct hapened more than 10 years before.
199
If a judge is going to give a warning under section 122, when does it need to be done?
It can be done at any time during the proceeding and there is no particular words that are required by the judge.
200
Under section 123, what is the judge required to do?
to direct the jury that the law give special provisions for people to give evidence in a special way and no negative inferences should be drawn against the defendant because of this.
201
under section 124, if a defendant requests a judge gives a warning about a lie they have told during the proceeding, what are the three things the warning must include?
-The Jury needs to be satisfied that the defendant did lie before they use the evidence,
-people lie for various reasons
-The jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offene charged.
202
under section 125 it talks about children giving evidence, what does it prohibit?
-The judge giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
-any direction or a comment that there is a need to scrutinise childrens evidence with special care
203
What is required from an O/C case in regards to witnesses for a jury trial?
-advise witnesses about witness expenses
-tell witnessess they aren't to mix with the jury
-advise them of time date and place f trial
-check the jury to make sure none of the jurors are known to the witnesses
204
What should n O/C do for a not guilty hearing?
Ensure that you look, stand and speak correctly
Identify the defendant
locate your witnesses and help them as required
Do not mix or gossip with members of the jury or defence
205
What should you do when giving evidence?
Dont be flippant
say you do not know rather than guess
address the judge, prosecutions and defennce as sir/maam
take care that you actually answer the guestion being asked
