Evidence

Question 1

what is Evidence

Answer 1

oral, written or visual materials which a court / tibunal may take into account when reaching a decision.

Question 2

when is evidence Admissible

Answer 2

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

Question 3

Relevance

Answer 3

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

Question 4

prosecution must

defence must

Facts in issue are those which:

Answer 4

• 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 5

3xu 1xp

Exclusionary rules of evidence
(when should evidence be excluded)

Answer 5

These are rules that exclude evidence (usually because it

unreliable
unduly
prejudicial
unfair to admit

Question 6

Weight of evidence depends on

Answer 6

= value to facts of issue depending on:

How relevant is the evidence

Does it support or contradict other evidence.

verasity of witness.

The “weight” is the degree of probative force that can be accorded to the evidence

Question 7

Give/offer evidence

Answer 7

a witness “gives evidence”
a party “offers evidence”.
A party who testifies both gives and offers evidence.

Question 8

In a proceeding, evidence may be given:

Answer 8

written affidivat if PPS and Defence cosent

Orally in the courtroom.

Alternative way eg behind a screen so the witness can not see others in the court room

By video recording from a location other than the court room

Question 9

meaning of Incriminate

Answer 9

provide information that is reasonably likely to lead to/ increase the likelihood of the prosecution of a person for a criminal offence

Question 10

what is a Proceeding

Answer 10

action through which a party seeks to use the power of a court/tribunal

Question 11

what is a Statement

Answer 11

spoken or written assertion by a person providing relevant facts to help prove elements of an offence

Question 12

what is a Witness

Answer 12

a person who gives evidence and is able to be cross-examined in a proceeding.

Question 13

what is Propensity

Answer 13

A natural tendancy to behave in a particular way or hold a certain state of mind, being evidence of acts, omissions, events, or circumstances in which the defendant behaved in a similar way.

Question 14

what is Direct evidence

Answer 14

any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced- ie an eye witness.

Question 15

what is a Enforcement agency

Answer 15

any body or organisation that has a statutory responsibility for the enforcement of an enactment

including
New Zealand Police or
New Zealand Customs Service
Ministry of Fisheries
Inland Revenue Department

Question 16

Woolmington principle: presumption of innocence

Answer 16

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.

Question 17

Defences role relating to the woolmington principle

Answer 17

PPS= ordinarily hold burden of proof, unless.
Defence=
reversed burden of proof
practical obligiation
evidential burden

Question 18

Practical obligation on the defence

Answer 18

If the prosecution proves facts of defendant committing the act with the requisite mental 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 produce a particular defence to the charge.

Question 19

“Evidential burden” on defence

Answer 19

If the defendant wishes to put up a case against the charge the prosecution is not obligated to disprove every possible defense presented by the defendant.

once the basic elements have been proven by the prosecution, it is up to the defence to produce evidence that suggests another explanation.This is not practical obligation this becomes an evidential burden on the defendant.

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, and once it is made a ‘live issue’ then the prosecution must
destroy the defence, because the burden of
roof remains where that case puts it – with the prosecution.

The ultimate question for the jury is always, “has the prosecution proved its case?”

Question 20

Exceptions to Woolmington
principle when legal burden of proof is placed on defendant

Answer 20

exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant.

examples

defence of insanity

Parliament by express statutory exceptions.

Some offences

admissibility of evidence

Question 21

Woolmington may not apply:
“Public welfare offences”

Answer 21

the purpose of public welfare offences is to regulate everyday conduct which may endanger the public or sections of the public

once the prosecution has proved the actus reus there is no further need to prove mens rea and the burden passes to the defendant to prove a total absence of fault as a defence.

Question 22

Discharging burden of proof (threshold required)

Answer 22

The party bearing the legal burden of proof must meet a standard.

prosecution: beyond reasonable doubt.

defence: balance of probabilities

Question 23

R v Wanhalla (reasonable doubt)

Answer 23

reasonable doubt- 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

Question 24

presumption of innocence

Answer 24

You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

Question 25

Balance of probabilities

Answer 25

more probable than not. If the probabilities are equal, the burden is not discharged.

Question 26

presenting evidence in court is dictated by what?

Answer 26

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

Question 27

Purpose of Evidence Act 2006

Answer 27

Section 6 of the 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 New Zealand Bill of Rights 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 expense and delay; and

(f) enhancing access to the law of evidence.

Question 28

proving facts/charge with evidence?

Answer 28

facts/evidence should prove charge.

elements of charge should be considered when chosing relevant evidence which will help determine guilt.

Question 29

Circumstantial evidence

Answer 29

does not prove defence directly but provides proof of surrounding circumstances that offer indirect proof.

the more circumstantial evidence available the more likely it is to prove guilt when viewed as a whole

Question 30

general rule of evidence

Answer 30

all facts in issue and facts relevant to the issue must be proved by evidence.

Question 31

Exceptions to general rule of evidence

Answer 31

judicial notice is taken

facts are formally admitted

Question 32

Judicial notice

Answer 32

declares a fact presented as evidence as true without a formal presentation of evidence.

Question 33

128 Notice of uncontroverted facts

Answer 33

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.

(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this atter.

Question 34

what type of documents can be admitted under section 129

Answer 34

(1) A Judge may admit evidence in publsihed documents about matters of
art
literature
public history
science

if they consider it to be a reliable sources of information

(2) hearsay evidence, opinion evidence and expert evidence doesnt apply.

Question 35

when are Facts formally admitted

Answer 35

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.

Question 36

Presumptions of fact

Answer 36

Presumptions of fact are those that the mind naturally and logically draws from the given facts.

Presumptions of fact are simply logical inferences, and so are always rebuttable.

Question 37

when is evidence admissible?

Answer 37

Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible.

Question 38

R v Burrows- admissibility

Answer 38

the party wishing to bring evidence forward has the burden of proof to prove evidence is admissible

illogical to require crown to prove circumstantial evidence beyond reasonable doubt as circumstantial facts doent require proving to that standard.

admissibility is a question of law w no room for varying standards of proof.

any evidence which a jurur ight reply on to determine guilt is admissible.

Question 39

r.r.f

In deciding whether evidence is admissible, consider

Answer 39

• relevance
• reliability
• unfairness

Question 40

section 7 evidence act 2006
Fundamental principle that relevant evidence admissible (unless)

Answer 40

(1) All relevant evidence is admissible in a proceeding except evidence that is—

(a) inadmissible under this Act or any other Act; or

(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

Question 41

Inadmissibility or exclusion will
usually be due to…

Answer 41

Unfair
unreliable
public interest
or a
combination of these factors.

Question 42

is Reliability important?

Answer 42

it is important to ensure that evidence obtained is reliable although unreliability is not a general ground of inadmissibility,

Question 43

Fairness of evidence (S8 Evidence Act 2006) when might evidence be excluded?

Answer 43

Even though evidence is relevant, it may be excluded if it would result in unfairness.

It usually arises in two ways:

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
• Evidence obtained in circumstances that would make its admission against the defendant unfair.

Question 44

general exclusion provision- when must a judge exclude evidence

Answer 44

Judge must exclude evidence if its value is outweighed by the risk that the evidence will—

unfairly prejudicial effect on the proceeding

needlessly prolong the proceeding.

judge may offer the defence to privide a reason as to why evidence would do either above.

Question 45

When can unfair prejudice occur

Answer 45

When some piece of evidence more weight than it deserves

be misled by evidence

use evidence for an illegitimate purpose.

Question 46

Admission by agreement

Answer 46

Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree.

The Court in R v Hannigan12 highlighted that the Judge retains control of this process and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.

Question 47

Hart v R (admissible or not at all)

Answer 47

“the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

Question 48

rules of evidence deal with 6 types of evidence

Answer 48

veracity
* propensity
* hearsay
* opinion
* identification
* improperly obtained evidence.

Question 49

R v Gwazem (rules of admissibility)

Answer 49

rules of admissibility, including s 7 and 8, are rules of law and are not matters of discretion.

Although they involve questions of judgment, they “prescribe standards to be observed”.

Question 50

veracity meaning

Answer 50

– a disposition to refrain from lying

Question 51

“propensity meaning

Answer 51

a tendency to act in a particular way

Question 52

when do veracity and propensity rules not apply?

Answer 52

to bail or sentencing hearings

(EXCEPT when the evidence is covered by s44 where it relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or his or her reputation in sexual matters).

Question 53

Verasity rules, what may the judge consider?

Answer 53

bias’
motives to lie
previous charges for dishonesty offending
previous inconsistant statements
verasity under oath

Question 54

Section 37(4)(a) (veracity of hostile witness)

Answer 54

clearly signals that a party may not offer evidence to challenge the veracity of their own witness unless the witness is declared
hostile.

Question 55

Substantial helpfulness and veracity …

In order to be admissible, veracity evidence must be…

Answer 55

In order to be admissible, veracity evidence must be substantially helpful in
assessing the veracity of the person.

it has to do more than simply proving or disproveg a matter.

Question 56

when does the substantial helpfulness test apply?

Answer 56

veracity evidence in evidence in chief.

evidence elicited through cross-examination.

Question 57

Substantial helpfulness is not a sufficient test in two instances:

Answer 57

prosecution wish to offer evidence about a defendant’s veracity
(s38), and

the defendant offers veracity evidence about a co-defendant (s39).

Question 58

38 Evidence of defendant’s veracity

Answer 58

the defendant may offer evidence towards their own veracity.

the prosectution may offer evidence as to the defendants veracity only if the defendant has offered their own evidence

or

if the defendant has challenged a prosecution witness’s veracity.

Question 59

Propensity evidence includes

Answer 59

Propensity to act in a certain way

propensity as to state of mind

Question 60

Propensity evidence does not include

Answer 60

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

Question 61

who can offer propensity

General rule to propensity

Answer 61

a party may offer propensity evidence about any person.

restrictions exist around propensity evidence about a defendant, and in sexual cases, propensity evidence about a
complainant’s sexual experience

Question 62

why would a defendant provide evidence about disreputable conduct about himself?

Answer 62

for tactical reasons

Question 63

neutral propensity

Answer 63

propensity that is neither good nor bad but may act as an alibi

Question 64

is it necessary to have been convicted to use propensity evidence

Answer 64

No they do not have to be convicted to use their past conduct as propensity evidence

Question 65

Heresay evidence

Answer 65

is a statement made by someone who is not the original witness.

Question 66

is heresay evidence admissible

Answer 66

not admissible except where there is provision for
admissibility in the Evidence Act 2006 or any other Act; or where there is
express provision that the hearsay rules do not apply

Question 67

primary rationale for
the rule against hearsay

Answer 67

the inability to test the credibility and accuracy of the maker

due to the fact you can not cross-examine the original witness.

can not see demenour of original witness.

mistakes might be made while evidence is presented by another witness making it unreliable

Question 68

heresay evidence admissibility criteria

Answer 68

reliability

unavailability, or that “undue expense or delay would be caused”.

Question 69

reasonable assurance means

Answer 69

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.

to consider :

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

Question 70

unavailable as a witness means

Answer 70

can not be compelled

can not be identified

can not be found

dead

outside NZ

unfit to be a witness (old age, physical, mental condition)

Question 71

19 Admissibility of hearsay statements contained in business records

Answer 71

admissible if

the person who supplied the record is unavailable to be a witness

No useful purpose for that person to be a witness

undue expense or delay to bring that person on as a witness

Question 72

a business record means

Answer 72

documents that comply with duty of a business and / or are part of a record of that business.

(includes officers notebooks, statements, jobsheets)

Question 73

23 Opinion rule

Answer 73

A statement of an opinion is not admissible in a proceeding, except as provided by
section 24 or 25.

Question 74

the exclusion of opinion evidence is adhered to because

Answer 74

opinion evidence holds little weight and might:

draw away unneccesarily from facts given.

prolong proceedings

opinion evidence might be based on other inadmissible evidence

Question 75

In order to be admissible under s24, the statement of opinion must

Answer 75

opinion is the only way to effectively communicate the information

the witness must be stating an opinion from something personally perceived.

Question 76

Admissibly opinion evidence under S25

Answer 76

be that of an “expert”

comprise “expert evidence”, and

offer substantial help to the fact-finder in understanding other evidence

Question 77

Expert evidence about sanity

Answer 77

(Section 25(4)) an expert opinion about someones sanity/ state of mind can be formed on comments and statements made by the defendant.

Comments made about the defendant by others are inadmissible

Question 78

principles of conduct of experts

Answer 78

an expert must state his or her qualifications when giving evidence

reasons for opinions given must be stated explicitly

any literature or other material used or relied on to support opinions must be referred to by the expert

must not give opinion evidence outside his or her area of expertise

if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated

Question 79

defendant calling expert witness notice requirement

Answer 79

S23 if defence intend to call expert witnesses they must disclose a brief of evidence report or summary (if no report is available) at least 14 days before day fixed for trial.

Question 80

expert means

Answer 80

a person who has specialized knowledge or skill based on training, study or experience”.

The judge must determine whether the expert witness is properly qualified to testify

Question 81

When can published documents be admitted as evidence?

Answer 81

when the Judge decides that they are reliable sources

Question 82

what four things must be varified before summoning a person

Answer 82

are allowed to give evidence

are required to give evidence

can they refuse to give evidence,

what type of witness they will be

Question 83

R v Turner (value of opinion)

Answer 83

“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.

Question 83

examples of what experts can base their opinions on

Answer 83

books
journal articles
research findings of another person

Question 83

Does every person who is able to give evidence need to be called to give evidence

Answer 83

no- however under the criminal procedures act if the court believes they should be called then the prosecution is required to call that witness.

Question 84

what is an eligible witness?

Answer 84

lawfully able to give evidence on behalf of both prosecution and defence.

Question 85

what is a compellable witness?

Answer 85

required to give evidence against their will for both prosecution and defence.

Question 86

when is a witness compellable?

Answer 86

Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.

Question 87

are people of certain ages or disabilities exempt from giving evidence?

Answer 87

no- while someone might be too young or incapable of providing a coherent testimony = being ‘unfit’ to testify, they can still be compelled to do so.

Question 88

can judges or jurers/ council testify in that proceeding?

Answer 88

a judge overseeing a proceeding cannot testify in that proceeding.

A juror who or council in a proceeding can not testify without permission of the judge.

If the juror is allowed to give evidence than he will be removed from the jury.

Question 89

defendant giving evidence

Answer 89

a defendant may give evidence but does not have to.

Question 90

a co defendant is not required to give evidence against the defendant unless

Answer 90

the associated defendant is being tried separately from the defendant; or

the proceeding against the associated defendant has been determined.

Question 91

what is an associate defendant

Answer 91

someone who is either a co-offender to a crime (not compellable)

or

someone charged with a linked offence to the same events (compellable)

Question 92

what is privilege

Answer 92

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

Question 93

types of privilege

Answer 93

communications with legal advisors

solicitors’ trust accounts

preparatory materials for proceedings

settlement negotiations or mediation

communications with ministers of religion

information obtained by medical practitioners and clinical psychologists

Question 94

two other types of privilege

Answer 94

privilege against self-incrimination

informer privilege

Question 95

marital privilege

Answer 95

no longer exists– if any protection of disclosure
is desired, this will be assessed under s69

Question 96

what ‘materials’ under privilege

Answer 96

communications
documents
opinions

Question 97

who is covered by privilege

Answer 97

any person who the information relates to.

any person who received the information

any person who gave an opinion, prepared or compiled the information

any person who is currently in possession of the information.

Question 98

who can waiver privilege

Answer 98

persons relying on the privilege.

an interested party may apply to have privilege reinstated.

Question 99

what is legal professional privilege called?

Answer 99

“solicitor-client privilege.

It may include:

communication between the party, their legal advisor or any other person either are contact with.

information compiled /prepared/ received or requested by the party or the party’s legal adviser and any other person they are in contact with

Question 100

circumstances in which legal privilege can and cant be claimed

Answer 100

Privilege can be claimed for:

Confidential comms
Comms to obtain legal service
Covers those who are seeking and receiving legal service

Privilege cannot be claimed if it is in relation to information that has been dealt in a dishonest way or is intended to assist in the commission of a crime .

If the information is overheared but is meant to be confidential then that person may be ordered not to disclose the information they overheard.

Question 101

What is a minister of religion

Answer 101

A person who plays a pastorial role in a religious or spiritual community.

This does not just cover organised religions.

Question 102

what kind of information is privileged regarding ministers of religion

Answer 102

spiritual advice, benefit or comfort

Question 103

when does privilege apply in relation to medical
practitioners and clinical psychologists

Answer 103

person who is consulted for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct

it does not apply to a person who has been ordered by a judge to submit themselves for an examination

Question 104

clinical psychologist means

Answer 104

a health practitioner who is deemed to be registered with the Psychologists Board permitted to diagnose and treat persons suffering from mental and emotional problems

Question 105

refreshing memory before court means

Answer 105

referring to statements, briefs of evidence, speaking with officers who took statements from them etc. before court .

Question 106

previous consistant statements in court

Answer 106

Previous consistent statements are generally inadmissible as multiple statements may add weight to the evidence through repetition not validity.

Question 107

when are previous consistant statements admissable?

Answer 107

responds to a challenge that will be or has been made to the witness’s veracity or accuracy,

forms an integral part of the events before the court; or

consists of the mere fact that a complaint has been made in a criminal case

Question 108

what is a Hostile witness

Answer 108

a witness who gives evidence inconsistant with a statement previously given, refuses to answer questions or has the intent to be unhelpful towards the party who called them.

Question 109

what happens in the stand with a hostile witness

Answer 109

the hostile witness will be cross examined.

they may be asked leading questions

probing questions to test accuracy of memory /perseption.

ask questions about prior inconsistant statements.

questions as to the witnesses veracity.

Question 110

unfavourable witnesses

Answer 110

a person who gives evidence contrary to their original statements may be unfavourable witnesses, they may not necessarily be hostile witnesses.

Question 111

purpose of cross examination

Answer 111

to illicit information supporting the case.

to challenge accuracy of the witnesses testimony/evidence in chief.

Question 112

what does duty to ‘put the case’ mean?

Answer 112

when evidence is given by one party that opposes the evidence of another, they may be cross examined and given the chance to explain or make comments about that contridiction.

Question 113

drug dependency

Answer 113

compulsive desire to consume, smoke, or otherwise use a drug or a tendency to increase the dose of the drug.

Question 114

what does privilege against self discrimination mean

Answer 114

cannot be compelled to provide information that legal rules would otherwise require him or her to supply.

Question 115

who can claim the privilege against self-incrimination on behalf of another?

Answer 115

no one except for the situation where a legal adviser asserts the privilege on behalf of a client.

Question 116

can body corporates claim privilege?

Answer 116

No

Question 117

who is considered an informer?

Answer 117

a person who has supplied, gratuitously or for reward, information to 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.

An informer may be a member of the police working undercover

Question 118

when can privilege be disallowed?

Answer 118

can be disallowed by a judge when:

the information appears to have been given for dishonest purposes or enables or aids anyone to plan or commit offences.

The information is necessary to enable the defendant to present an effective defence

Question 119

what evidence can be disclosed in Jury deliberations

Answer 119

evidence must not be given about the deliberations of
a jury, which includes everything that was said or done during the time that the jury was performing its fact-finding function.

however evidence to issues within the jury can be disclosed, such as the competency and capacity of a juror.

Question 120

protection of journalist sources

Answer 120

where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her
employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered

Question 121

when can a judge override protection of journalist sources

Answer 121

public interest outweighs likely adverse effect on the informant and the public interest in the communication of facts

Question 122

S60 Overriding discretion as to confidential information

Answer 122

a judge may give direction under this section to not disclose the following

(a) a confidential communication:

(b) any confidential information:

(c) any information that would or might reveal a confidential source of information.

Question 122

section 60- A judge may consider whether disclosure of certain information outweighs public interest when…

Answer 122

preventing harm to people or relationships which are ivolved in the comms, or confidential infomration being made, obtained, prepared, rocorded.

protecting relationships silimar to that explained above.

protecting activities which rely on free flow of information

Question 123

do you require corroborating evidence in criminal proceedings

Answer 123

not unless the person is charged with:

1. perjury
2. false oaths
3. false statements or
   declarations
4. treason

Question 124

corroboration means

Answer 124

independent evidence that tends to confirm or support other facts/evidence

Question 125

Warning to jury relating to
the absence of corroboration

Answer 125

not necessary of the judgeto give a warning to the jury or instruct them to take special care in cases where evidence is uncorroborated or a witness may be of doubtful reliability.

Question 126

Do you need to corroborate child witnesses

Answer 126

prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult

Question 127

Judge’s role in trial by jury

Answer 127

When a judge is presiding over a trial by jury, he or she must:

• 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 128

who must take an oath/affirmation

Answer 128

Witnesses who are 12 years of age or older, though the judge may waiver this provided he informs that person the importance of telling the truth.
This may be relevant to persons with intellectual disabilities or a child who is unable to promise to tell the truth

Question 129

what must witnesses under 12 do instead of giving an oath/affirmation

Answer 129

be informed by the judge of the importance of telling the truth and nottelling lies

after being given that information, make a promise to tell the truth, before
giving evidence.

Question 130

order in which witnesses appear in jury trials

Answer 130

The defendant may make an opening statement

the prosecution otherwise open the case and call witnesses.

The witnesses give their evidence in chief (written/video recorded statements)

the witnesses may be cross-examined.

The witness may then be re-examined.

The defence may call witnesses immediately after prosecution witnesses

this is to help build a picture of events and how the evidence fits together.

Question 131

sequence of jury trials

Answer 131

Jury is empanelled and forperson selected.

The judge commenses the trial and addressed the jury giving a brief of instructions covering their role, mechanics, burden of prooft etc.

Crown makes opening address providing details about the charges and summarise the case.

crown witnesses present chief of evidence and witnesses may be cross examined.

The defennce may provide an opening statement/ address the jury.

Defence calls witnesses who may be cross-examined.

The crown provides a closing statement to the jury

The defence makes a closing statement.

Judge sums up the jury before they retire to consider verdict.

Question 132

what are the categories of offences.

Answer 132

cat 1- judge alone trial non-imprisonable.

cat 2- judge alone- max less than two years imprisonment

cat 3- judge alone or jury- 2 yrs or more imprisonment.

cat 4- jury-schedule one offences only

Question 133

what is a view?

Answer 133

an inspection of a place or
thing that is not in the courtroom (for example, an inspection of a scene or
building where the alleged offending took place).

Question 134

who can comment on the defendant not giving evidence

Answer 134

the defendant or the defendant’s counsel or the Judge

Question 135

purpose of evidence in chief?

Answer 135

elicit testimony that supports the case of the party calling that witness

Question 135

what is a leading question

Answer 135

directly or indirectly suggests a particular answer to the question.

typically yes or no answers

Question 136

the prohibition of leading questions is based on the belief that…?

Answer 136

It produces unreliable evidence.

• There is a 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 the
  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 the witness

Question 137

what is the goal of evidence in chief and re-examination?

Answer 137

to draw out the witness’s
own recollections and to permit the trier-of-fact to judge the quality of the witness’s testimony.

Question 138

when are leading questions allowed?

Answer 138

(a) the question relates to introductory or undisputed matters

(b) the question is put with the consent of all other parties; or

(c) the Judge allows the question.

Question 139

when are leading questions permitted under 89(1)(c)

Answer 139

when it will lead to identification evidence.

questions about surrounding circumstances in order to jog a
witness’s memory about some fact or event in issue

To assist counsel in eliciting the evidence in chief of very young people,people who have difficulty speaking English, and people who are of limited intelligence

Where the witness has been declared hostile

Question 140

refreshing memory in court

Answer 140

If a written statement was taken from the witness, they may use that statement to refresh their memory if permitted by the judge.

Question 141

what must be satisfied for the witness to refresh their memory in court and refer to their fws

Answer 141

judge allowed it

the document is shared with all parties involved in proceedings.

the document was created/adopted while their memory was fresh.

Question 142

when refreshing their memory in court and reading their statement, who must the document have been made by ?

Answer 142

made by the witness, or by another person acting on the witness’s behalf in his or her presence, with the witnessnes final assent

Question 143

cross examination duties

Answer 143

deals with “significant matters” in the proceeding, and

matters are “relevant” and “in issue” in the proceeding

matters “contradict the evidence of the witness”

The witness may “reasonably be expected to be in a position to give admissible evidence on those matters”.

Question 144

unacceptable questions

Answer 144

an questions considered:

expressed in a way that the witness does not understand.
Improper questions
Misleading questions
Questions that are overly repetitive.
Unfair questions

Question 145

when does re-examination occur?

Answer 145

Re-examination occurs after a cross-examination to clarify information that came out during the cross-examination.

This is performed by the council who called that witness.

If the permission of the judge further questions may be asked.

The opposing counsel may then cross-examine on new information that is elicited.

Question 146

evidence in rebuttal may be permissable until?

Answer 146

the jury retires

in judge alone trials, at any time until judgment is delivered.

Question 147

types of judical warnings

Answer 147

childrens evidence
Delayed/failed complaints in sexual cases.
Directions on giving evidence
identification evidence
Lies
unreliable evidence

Question 148

warnings about evidence that might be unreliable might occur when …?

Answer 148

confession made to another person while in custody/detainment.

heresay evidence

previous conduct if that conduct is oer 10 years old.

statements provided by defendant when that is the only evidence to implicate them.

witnesses who may have motives against the defendant

Question 149

when warnings about the defendant lying the judge must include direction that

Answer 149

• the jury needs to be satisfied that the defendant did lie before they use the evidence,
• people lie for various reasons, and
• the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.

Question 150

warnings about child witnesses should only be given when

Answer 150

qualified expert evidence supports the warning.

Question 151

what should the OC case consider for witnesses in not guilty hearings

Answer 151

tell the witness dates/times/ place of trial exhibits to present.

check if they have given evidence before- if not explain process.

advise witnesses who provided written statements that they can refresh their memories with their statement

ensure they remain within call if excluded during parts of the hearing.

check the list of jurers to ensure that none of the jurers are known to the witness.

warn the witness not to speak or mix with jurers

advise them about witness expenses.

Question 152

OC case general expectations

Answer 152

• 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 jurors or members of the defence.

Question 153

O/C Case Giving evidence

Answer 153

• Take care that you actually answer the question being asked.
• Say you do not know, rather than guess.
• Do not be flippant.
• Address the judge as “Your Honour“ or “Sir/Ma’am”.
• Address the prosecutor and defence as “Sir/Ma’am”.
• Advise the judge of any mistakes you have made as soon as possible, or advise the prosecutor, if you have finished giving evidence.

Question 154

referring to your notebook

Answer 154

Ask for permission

Introduce material

Defence and jury may see your notes so secure other pages.

You can only refresh your memory with notes unless permission is granted to read verbatim

Question 155

should you produce evidence which is favourable to the defence?

Answer 155

yes, you are there to assist the court at arriving to the truth of the matter. you must be unbiased.

Question 156

when giving evidence you must be

Answer 156

calm
factual,
truthful,
professional.
unbiased,