Evidence

Question 1

What is evidence?

Answer 1

Evidence is the whole body of material which the court or tribunal may take into account in reaching their decision.

Question 2

What are the three forms of evidence?

Answer 2

Oral, written or visual.

Question 3

What are the three rules of evidence?

Answer 3

How evidence may be given
Who may give evidence
What type of material may be given in evidence

Question 4

Define admissible evidence

Answer 4

Evidence legally able to be received by court.

Question 5

Who is the fact-finder?

Answer 5

The Judge or jury

Question 6

Define relevant evidence as per S7(3) Evidence Act 2006.

Answer 6

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

Question 7

What are facts in issue?

Answer 7

For prosecution they are the facts they must prove to establish the elements of the offence.

Or when the defendant carries the burden of proof, the facts required to succeed with a defence.

Question 8

What is a proceeding?

Answer 8

A proceeding conducted by a court, including any interlocutory or other application to a court connected with a proceeding

Question 9

What is the weight of evidence?

Answer 9

The weight of evidence is its value in relation to the facts in issue. Dependant on a range of factors. The weight is the degree of probative value that can be accorded to the evidence.

Question 10

What are the three main factors dependent upon in relation to the weigh of evidence? REV

Answer 10

Relevant or conclusive to facts
Extent of support or contradiction by other evidence
Veracity of the witness.

Question 11

Define probative value.

Answer 11

Is determined by how strongly evidence points to the inference (conclusion).
And how strongly and centrally the evidence assists in proving or disproving the case.

Question 12

Define prejudicial?

Answer 12

Evidence adverse to a party’s case; the drawing of an inference (conclusion aginst a party).

Question 13

What does, ‘offer evidence’ mean?

Answer 13

A party ‘offers’ evidence. This includes calling a witness who ‘gives evidence’. A party who testifies both gives and offers evidence. It also includes eliciting evidence by cross-examination a witness called by another party.

Question 14

In relation to offering evidence, what does S96(1) Evidence Act 2006, Morgan v R state?

Answer 14

merely putting a proposition to a witness is not offering evidence; it becomes so when the witness adopted the proposition.

Question 15

Define gives evidence.

Answer 15

A person recounting facts or opinions in a proceeding.

Question 16

What three ways may evidence be given?

Answer 16

The ordinary way - orally in a court room or in an affidavit filed in court and read.
Alternative way - in courtroom but by way of video record or from behind a screen
Any other way

Question 17

Who is a witness

Answer 17

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

Question 18

Who is considered a child as per the Evidence Act 2006?

Answer 18

A person under 18 years of age.

Question 19

Define a statement.

Answer 19

Is a spoken or written assertion by a person intended by that person as an assertion of any matter.

Question 20

What is a hearsay statement?

Answer 20

A statement made by a person, other than the witness.

Question 21

Define veracity

Answer 21

A persons disposition (natural tendency) to refrain from lying

Question 22

Define propensity

Answer 22

A person’s tendency to act in a particular way or have a particular state of mind.

Question 23

What is direct evidence?

Answer 23

Evidence by a witness as to a fact in issue which they have seen, heard or otherwise experienced. An eye witness.

Question 24

What is circumstantial evidence?

Answer 24

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

Question 25

What are the six objectives of the evidence act, as per S6. FEFCUL

Answer 25

Application of logical rules
Rules of evidence that recognise NZBORA
Fairness to parties and witnesses
Confidentiality and other important public interests
Avoiding unjustifiable expense and delay
Access to law of evidence.

Question 26

What is the fundamental principle for evidence to be admissible?

Answer 26

Evidence must be relevant.

Question 27

Detail section 7 of the Evidence Act 2006 in relation to the fundamental principle that all relevant evidence is admissible.

Answer 27

(1) All relevant evidence is admissible in a proceeding, except evidence that is:
(a) Inadmissible under this Act or any other
(b) Excluded under this Act or any other
(2) Evidence that is not relevant must not be admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tenancy to prove or disprove anything that is of consequence to the determination of the proceeding.

Summary:
All relevant evidence is admissible unless inadmissible or excluded.
Irrelevant evidence is not admissible
Evidence is relevant if it can prove or disprove any facts in proceeding.

Question 28

Discuss the general exclusion rule under S8, Evidence Act 2006

Answer 28

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will
(a) have an unfairly prejudicial effect on proceeding or
(b) needlessly prolong the proceeding
(2) In determining the above, the Judge must take into account the right of the defendant to offer an effective defence

Summary:
The judge must exclude evidence if probative value is outweighed by risk that is unfairly prejudicial or will needlessly prolong trial. Must take the right of defendant to offer effective defence.

Question 29

What does Section 9 allow in relation to evidence?

Answer 29

Allows evidence to be admitted by agreement between the parties.

Question 30

Explain the Woolmington principle

Answer 30

The presumption of innocence. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 31

In relation to the Woolmington principle and the burden of proof, what is the ultimate question for the jury?

Answer 31

Has the prosecution proven its case

Question 32

What are the standard of proof for the prosecutions and defence?

Answer 32

Prosecution - must prove beyond a reasonable doubt
Defence - on a balance of probabilities

Question 33

Define beyond reasonable doubt

Answer 33

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.

Question 34

Define balance of probabilities

Answer 34

More probably than not

Question 35

For what offences would unsupported evidence of one witness be insufficient to support a conviction?

Answer 35

Perjury and
Treason

Question 36

What are the five points (summarised) in relation to the adversarial system in relation to questioning witnesses. FWCJD

Answer 36

Facts of the case
Witnesses called
Cross-examine
Judges role - rulings re admissibility
Defendant - doesn’t have to give evidence

Question 37

What must witnesses who are 12 years or older do before giving evidence? (S77)

Answer 37

Take an oath or affirmation.

Question 38

For a witness under 12, what must the judge inform them of?

Answer 38

Importance of telling the truth and not telling lies
Make them promise to tell the truth before giving evidence

Question 39

Explain Section 84 of the Evidence Act 2006 in relation to the examination of witnesses. ECR

Answer 39

Unless the Judge directs otherwise;
(a) a witness first gives evidence in chief and
(b) after chief, the witness may be cross-examined by all parties and
(c) after all parties who wish, have cross-examined the witness, the witness may be re-examined.
If a witness give evidence in an affidavit or by reading FWS it is considered evidence in chief.

Summary:
Evidence in Chief
Cross examination
Re-examination

Question 40

Summarise the jury trial process.

Answer 40

a) Jury empanelled and foreperson selected. Opening instructions.
b) Crown opening
c) Crown case
d) Defence opening if applicable
e) Defendant case if applicable
f) Crown close
g) Defence close
h) Judge summary

Question 41

What are the two types of instances where a witness may refresh their memory prior to a proceeding?

Answer 41

Reference to written documentation in court and
Refreshment of memory out of court

Question 42

Explain refreshing memory in court, under S 90(5)

Answer 42

Where a written record of the details of an event was prepared by a witness at the time of occurrence, that the witness can no longer remember, it makes sense to allow the witness to refer to the document to refresh memory.

Question 43

If a witness wishes to consult a document whilst giving evidence, what are the four conditions that must be satisfied to ensure the accuracy of the document? LSDS

Answer 43

L - leave of the judge must be obtained
S - document must be shown to all parties involved
D - Document must have been made or adopted by witness at time when memory was fresh
S - made by witness or by another person acting on a witnesses behalf in their presence and assented by the witness.

Summary:
Judge must approve
Copies provided to everyone
Statement made by witness or Officer etc and signed by witness

Question 44

How does a witness refresh their memory outside of court?

Answer 44

By reading a brief or statement prepared for the proceedings.

Question 45

Can the documents used to refresh the witnesses memory be used as evidence or cross-examined?

Answer 45

No

Question 46

Define a hostile witness.

Answer 46

A witness who shows a lack of veracity when giving evidence, unfavourable to the party who called the witness, on a matter they should reasonably be supposed to have knowledge or
Gives evidence inconsistent with a statement made
Refuses to answer questions or deliberately withholds evidence

Question 47

In relation to Criminal Disclosure as per the Police instructions chapter, when deciding whether information or exhibits supports or rebuts the case the prosecutor should consider what two things?

Answer 47

• If the evidence will help or hinder the defendants ability to defend the charges
• Would or might detract from the prosecutions case, or assist the defence or incriminate another person

Question 48

Under S103(3) a judges direction for a witness to provide evidence in an alternative way will be made in consideration with the following grounds.

Answer 48

Age and maturity of witness
physical etc impairment of witness
Trauma
Witnesses fears
Cultural background / beliefs
Nature of proceedings
Nature of evidence
Relationship of witness
Absence of witness from NZ

Question 49

What are the 3 alternative ways evidence could be provided?

Answer 49

In the courtroom behind a screen
Via video link in the courthouse or anywhere else
By way of video recording

Question 50

Other than the defendant, who is not a compellable witness in court?

Answer 50

The Judge, Sovereign, Governor-General and Head of state of foreign country.

Question 51

What are examples of privileged material?

Answer 51

Communications with legal advisors
Solicitors trust accounts
Preparatory materials for proceedings
Settlement negotiations, mediation or plea discussions
Communications with ministers of religion
Information obtained by medical practitioners and clinical psychologists
Privilege against self-incrimination
Informer Privilege

Question 52

What are the two categories that divide character evidence?

Answer 52

Veracity and Propensity

Question 53

When can propensity evidence be offered in evidence?

Answer 53

S41 - Propensity evidence about defendants
S42 - Propensity evidence about co-defendants
S43 - Propensity evidence offered by prosecution about defendants

Question 54

Under section 18 of the Evidence Act 2006, explain the general admissibility of hearsay evidence

Answer 54

(1) A hearsay statement is admissible in any proceedings if
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable and
(b) either
(i) the maker of the statement is unavailable as a witness or
(ii) Judge considers that undue expense or delay would be caused if maker required as a witness

Summary:
Reliability and
Unavailability or undue expense or delay

Question 55

What is the risk with hearsay evidence?

Answer 55

There is danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 56

What are the five considerations into the circumstances of a statement. MCNAV

Answer 56

N - Nature of the statement
C - Contents of the statement
M - Circumstances relating to the making of the statement
V - Circumstances relating to the veracity of the statement
A - Accuracy of the observation of the person

Question 57

When is someone unavailable as a witness?

Answer 57

Dead
Outside of NZ and not reasonably practicable to be a witness
Unfit due to age/physical/mental conditions
Cannot be identified or found
Not compellable

Question 58

What is identification evidence?

Answer 58

Evidence of identity by a witness stating that a person is the same as someone he or she saw on a previous occasion.

Question 59

What is visual identification?

Answer 59

an assertion by a person, based wholly or partly on what that person saw

Question 60

What are the types on visual identification evidence?

Answer 60

Formal procedure (photo montage)
Parade

Question 61

When would visual identification evidence obtained by way of a formal procedure not be admissible?

Answer 61

If the defendant proved on a balance of probabilities that it is unreliable.

Question 62

What are considered good reasons for not completing a formal identification?

Answer 62

Singular appearance of suspect (cannot be disguised)
Substantial changed in appearance of suspect since alleged offence
ID not anticipated to be an issue
Offender identified before initial investigation begins.
Chance meeting
Refusal of suspect

Question 63

What is voice identification?

Answer 63

evidence that is an assertion of a person to the effect that a voice, whether heard first hand or through other transmission or recording is the voice of a defendant or witness

Question 64

Under S46 of the Evidence Act 2006, when is voice identification evidence admissible?

Answer 64

If the prosecution proves on a balance of probabilities the the circumstances which the identification was made produced a reliable identification.