Evidence Flashcards
(89 cards)
1
Q
Define Facts in issue
A
Facts in issue are those which:
-The prosecution must prove to establish the elements of the offence or,
-the defendant must prove to succeed with a defence in respect of which he or she carries to the burden of proof
2
Q
Define Exclusionary rules
A
Rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it)
3
Q
Define Relevance
A
Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of proceeding”
4
Q
Factors that may influence the weight of evidence
A
-The extent to which, if accepted, it is directly relevant to or conclusive of, those facts
-The extent to which if it is supported or contradicted by other evidence produced
-The veracity of the witness
5
Q
Define Witness
A
A person who gives evidence and is able to be cross-examined in a proceeding
6
Q
Define 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 content.
7
Q
Define Veracity
A
The disposition of a person to refrain from lying, whether generally or in a proceeding
8
Q
Define Propensity
A
Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.
9
Q
Define Direct evidence
A
Any evidence given by a witness as to a fact in issues that he or she has seen, heard or otherwise experienced.
10
Q
Define Circumstantial evidence
A
This is 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.
11
Q
Define Statement
A
This is 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.
12
Q
Define Evidence
A
The whole body of material which a court or tribunal may take into account in reaching their decision.
13
Q
What is the Woolmington principle
A
Relates to the presumption of innocence in criminal law.
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all the elements of the offence.
14
Q
Where the Woolmington principle does not apply
A
-Public welfare regulatory offences. (Strict liability offence)
-Defence of insanity is claimed
-Where specific statutory exceptions exist
15
Q
Standards for discharging burden of proof for prosecution and defence
A
Prosecution - beyond reasonable doubt
Defence - balance of probabilities
16
Q
Findings of R v Wanhalla - reasonable doubt
A
A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.
17
Q
What is the Balance of probabilities
A
It must simply show that it is more probably that not. If the probabilities are equal, the burden is not discharged.
18
Q
Three ways in which evidence may be given
A
-The ordinary way
-The alternative way such as by video link
-Any other way provided for by the Evidence Act 2006 or any other enactment
19
Q
General rule of evidence
A
General rule - all facts in issue and facts relevant to the issue must be proved by evidence.
20
Q
Two main exceptions to the General rule of evidence
A
When no evidence needs to be given of facts because
-judicial notice is taken
-the facts are formally admitted
21
Q
Define Judicial Notice
A
When court declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.
Eg, date of Christmas.
22
Q
Explained Facts formally admitted
A
The counsel for either party can accept that some evidence is accepted or proven at the outside , so it need not be discussion. S9(2) and 9(3) of Evidence Act 2006 provides.
23
Q
Define Presumption
A
Where no direct evidence is offered or is obtainable, disputed facts are sometimes inferred from other facts which are themselves proved or known. The inference is called a presumption.
Presumptions may be of law or of facts
24
Q
Explain Presumptions of law
A
Presumptions of law are inferences that have been expressly drawn by law from particular facts. Presumptions of law may be either conclusive or rebuttable.
25
Explain Presumptions of fact
Presumptions of facts are those that the mind naturally and logically draws from the given facts , and so are always rebuttable.
26
Three fundamental principles to consider in determining admissibility of evidence
-Relevance (S7 EA 06)
-Reliability (S122 EA 06)
-Unfairness (S8 EA 06)
*** unofficial - Public interest
27
What are the two usual ways evidence becomes unfair
- If it would result in some unfair prejudice in the proceeding
- Obtained in circumstances that would make its admission against the defendant unfair. (eg improper obtaining of statement or confession)
28
The Section 8 Test
Involves balancing the probative value of evidence against the risk that it will:
- have an unfairly prejudicial effect on the proceeding
- needlessly prolong the proceeding
Evidence can be admitted under S8 if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding or if it is strong enough to justify a prolonging of the proceeding.
29
Explain S9(1) - Admission by agreement
Allows the admission of evidence even if otherwise not admissible, where the parties agree. A judge may decline to admit the evidence regardless of agreement.
30
Explain S14 EA 06
Where a question arises concerning the admissibility of any evidence, the judge may admit the evidence on the condition of further evidence being offered later which establishes the admissibility of the evidence in question. Failure to do so results in exclusion of evidence.
31
Explain S15 - Hearing in chambers
Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. such a hearing (hearing in chambers) excludes jury. Facts determined at the hearing in chambers can be referred to as preliminary facts or preliminary hearings.
32
Explain Hart v R
Admissible evidence may be used in different ways and for different purposes in a proceeding, not necessarily only for the purpose for which it has been admitted. "Evidence is either admissible for all purposes or it is not admissible at all"
33
Exceptions to Hart v R
Subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such as
s27 - controls the use of pre-trial statements of defendants and co-defendants
s31 - forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
s32 - forbids the fact-finder from using a criminal defendant's pre-trial silence as evidence of guilt
34
Explain Veracity rules S37(1)
A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity
35
List the Judge's considerations in deciding whether veracity evidence is substantially helpful or not - S37(3)
(a) lack of veracity on part of the person when under a legal obligation to tell the truth
(b) that the person has been convicted of 1 or more offence that indicate a propensity for dishonesty or lack of veracity
(c) any previous inconsistent statements made by the person
(d) bias on the part of the person
(e) a motive on the part of the person to be untruthful
36
In order to be able to offer evidence of a defendant's veracity
- Prosecution must show that veracity is relevant
- Defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness
- Proposed evidence must meet the substantial helpfulness test (s37)
- Prosecution must get permission from the judge
37
The Judge's considerations whether to give permission for prosecution to question defendant's veracity
- Extent to which the defendant's or prosecution witness' veracity has been put in issue in the defendant's evidence
- The time that has elapsed since any convictions about which the prosecution seeks to give evidence
- Whether any evidence given by the defendant about veracity was elicited by prosecution
38
When can prosecution offer propensity evidence about a defendant (s41)
Only when the defendant offers propensity evidence about himself or herself or if s43 is satisfied.
39
Explain s43(1) - propensity evidence offered by prosecution about defendants
May offer propensity evidence about defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
40
Judge's considerations for allowing propensity evidence
s43 EA 06
(a) frequency of acts, omissions or events
(b) connection between the acts
(c) the extent of similarity between the acts
(d) the number of persons making allegations
(e) whether (d) may be a result of collusion
(f) the extent of the unusualness
41
Three requirements for admission under Rei v R - propensity evidence
- Constitute propensity evidence
- Have probative value in relation to an issue in dispute
- Have probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
42
Explain Prior acquittal evidence
Defendant does not have to have been convicted in order for it to qualify as admissible propensity evidence although this may affect the assessment for probative value of the evidence.
43
Explain the admissibility of hearsay - S18
(1) Hearsay statement is admissible in any proceeding 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 of statement required as witness
44
List the rationale of the hearsay rule
- Maker of statement is not called as a witness, therefore no opportunity to cross-examine them regarding the content or circumstances it was made.
- Juries cannot property evaluate evidence without being able to see demeanour of person making statement
- Dangers that witnesses will make mistakes about meaning or content of statements made by other people
45
Define circumstances (under S16) in relation to a statement made by a person who is not a witness
s16
(a) the nature of the statement
(b) content of the statement
(c) circumstances that relate to the making of the statement
(d) circumstances that relate to the veracity of the person
(e) circumstances that relate to the accuracy of the observation of the person
46
Define unavailable witness (s16(2))
- dead
- outside NZ and not reasonably practicable for him or her to be a witness
- unfit due to age or physical or mental condition
- cannot be identified
- not compellable to give evidence
47
Rationale behind the opinion rule
- where a witness offers a bare opinion it holds little probative weight
- There is a danger that a witness offerring opinion evidence will "usurp" the function of the tribunal of fact.
- A witness's evidence of opinion may be based on other evidence which would be inadmissible. (eg opinion based on propensity)
48
When opinions can be admissible (s24)
- Opinion must be the only way in which to effectively communicate the information to the finder of the fact.
- The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
49
Admissibility of expert opinion evidence (s25)
The opinion must
- 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
50
Define an Expert
The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed an expert in the field in question.
*** May be qualified through formal study and training, from experience or both.
51
Who can be compelled to give evidence
Any person who is eligible to give evidence is compellable
52
Under s72, who is ineligible to give evidence
A judge, the juror or counsel is ineligible to give evidence in that proceeding.
53
Notes on defendant compellability
A defendant facing a criminal trial is an eligible but not compellable witness for either prosecution or defence therefore defendant may give evidence but does not have to.
54
Define associated defendant
Someone against whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried.
55
Notes on associated defendant compellability
If not a co-defendant and is being tried separately or where the proceeding against the associated defendant has been determined, then he or she is compellable for both the Crown and defence.
56
Define Determined in relation to a proceeding - S73(2) & (3) (compellability)
A proceeding has been determined if
(a) the proceeding has been stayed, or in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed or
(b) the associated defendant has been acquitted of the offence
57
Define Privilege
A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
58
Privileges outlined by EA 06
- Communication 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
- privilege against self-incrimination
- informer privilege
59
Notes on privilege and medical practitioners
Applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct BUT
Does not apply for someone who has been ordered by a Judge or lawful authority to submit themselves to the practitioner.
60
Define Informer
Someone who has supplied, gratuitously or for reward, information to an enforcement agency or to representative of, concerning the possible or actual commission of an offence in circumstances the person has a reasonable expectation their identity will not be disclosed. Can be undercover Police member.
61
Explain disallowing of 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. May also be disallowed to enable defendant to provide an effective defence.
62
Notes on journalist privileges
s68 provides journalists if a promise has been made to an informant not to disclose the informant's id. A high court judge may order that protection will not apply if satisfied there is public interest.
63
offences requiring corroboration
s121(1) It is not necessary in a criminal proceeding for evidence on which the prosecution relies to be corroborated, except with respect to the offence of -
(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason
64
Notes on a judge's warnings on corroboration
In general, except for specific offences under s121, not required to warn jury of danger on acting on uncorroborated evidence however can still warn jury.
Judge cannot give any warning to jury for absence of corroboration for complaint made by complainant if complainant was a child at the time it was made.
65
What is a "view" in relation to court proceedings
An inspection of a place or thing that is not in the courtroom (eg an inspection of a scene). A judge decides whether a view is held or not. All parties and their lawyers entitled to attend. Demonstrations and reconstructions may also be held if relevant.
66
Explain the purpose of evidence in chief
To elicit testimony that supports the case of the party calling that witness
67
Define leading question
A question that directly or indirectly suggests a particular answer to the question
68
What is the general rule around leading questions
Leading questions may not be asked during evidence in chief or re-examination
69
Explain the reason for why leading questions is generally not permitted
Will produce unreliable evidence for the following reasons
- There is a natural tendency for people to agree with suggestions put to them.
- Counsel asking leading questions of their own witness can more easily elicit the answer 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.
70
Circumstances in which leading questions can be allowed
s89(1)
(a) the question relates to introductory or undisputed matters or
(b) the question is put with the consent of all other parties or
(c) the Judge, in exercise of the Judge's discretion, allows the question
71
Notes on witness refreshing memory in court
S90(5) - For the purposes of refreshing memory while giving evidence, a witness may, with the prior leave of the judge, consult a document made or adopted at a time when his or her memory was fresh.
Rongonui v R - Document can still be made while memory fresh after 6 weeks
72
Conditions for witness wishing to consult a document while giving evidence
- Leave of the judge must be obtained
- The document must be shown to every other party
- The document must have been made or adopted by a witness at the time when his or her memory was fresh.
73
Explain witnesses refreshing memory out of court
May refresh memory by references to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they may have made some months before, or check their recollection of events with the officer who interviewed them.
74
Explain the general rule for consistent statements
A witness cannot give evidence about statements made before the trial that are consistent with the evidence given at the trial unless the exceptions contained in s35(2) apply.
75
Explain s35(2) - previous consistent statement rule
Previous consistent statements rule
35(2) a previous statement of a witness that is consistent with the witness's evidence is admissible if the statement
(a) 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
(b) forms an integral part of the events before the court
(c) consists of the mere fact that a complaint has been made in a criminal case
76
Questions that may be put to a hostile witness (s94)
- ask leading questions
- ask questions designed to probe accuracy of memory and perception
- asking questions as to prior inconsistent statements
- other challenges to veracity
77
Define Hostile witness
- exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge
- gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit , an intention to be unhelpful to the party who called the witness
- refuses to answer questions or deliberately withholds evidence.
78
What are the two purposes of cross-examination
- To elicit information supporting the case of the party conducting the cross-examination
- To challenge the accuracy of the testimony given in evidence in chief
79
When does the duty to cross examine a witness arise under s92
- The x-examination deals with significant matters in the proceeding and
- The matters are relevant and in issue in the proceeding and
- The matters contradict the evidence of the witness and
- The witness may reasonably be expected to be in a position to give admissible evidence on those related matters
80
When can a party re-examine a witness
After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during x-examination and nothing else except with the permission of the judge.
81
The types of warnings and directions a judge may give in relation to evidence
- Warnings that evidence may be unreliable
- Directions about certain ways of giving evidence
- Warnings about lies
- Directions about children's evidence
- Warnings about identification evidence
- Delayed complaints or failure to complain in sexual cases
82
When must a judge give the jury a warning under s122(2)
If the following evidence is
(a) hearsay evidence
(b) evidence of a statement by the defendant if that evidence is the only evidence implication the defendant
(c) evidence given by a witness with a motive to give false evidence prejudicial to defendant
(d) evidence of a statement by the defendant to another person made while both detained
(e) evidence about the conduct of the defendant occurring more than 10 years ago.
83
Notes on a judge's directions about evidence given by children
S125 prohibits
- The judge from 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 comment that there is a need to scrutinise children's evidence with special care, or that children generally have a tendency to invent or distort.
84
Witness handling by O/C for not guilty hearings
- Advise witnesses of time, date and place of trial and exhibits to be presented at the trial
- Check whether they have given evidence before, if not, advise of procedure.
- Advise witness they may refresh memory before giving evidence by reading written statement if made.
- Ensure witnesses remain within call if excluded from court.
- Warn witnesses not to mix or speak wit jurors.
- Advise about witness expenses.
85
O/C general responsibilities for not guilty hearings
- 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
86
O/C giving evidence in a note guilty hearing - practicals
- actually answer the question
- 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 ASAP or advise prosecutor if you have finished giving evidence.
87
When giving evidence, if needing to refer to notebook
- Ask the court's permission
- Introduce the material properly (eg these are notes made from xxxxx at the time)
- Defence and jury are entitled to view notes so seal off other entries
- can only refresh memory, not read the whole entry unless permission given.
88
Age group from which oath and affirmation can be taken
any witness 12 years and over involved in a proceeding
89
List the 6 types of evidence the exclusive rules of evidence deals with
-veracity
-propensity
-hearsay
-opinion
-identification
-improperly obtained evidence
