Evidence

Question 1

Define evidence

Answer 1

Evidence is the term for the whole body of material which a court or tribunal may take into account in reaching their decision, evidence may be oral, written or visual

Question 2

Define facts in issue

Answer 2

Facts in issue are those which
i. Prosecution must prove to establish the elements of the offence
ii. The defendant must prove to succeed with a defence l, in respect of which they carry the burden of proof

Question 3

Define veracity

Answer 3

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

Question 4

Define witness

Answer 4

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

Question 5

Define Relevance

Answer 5

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

Question 6

Evidence may be given in a number of ways list examples

Answer 6

Ordinary way - either orally in the courtroom in the presence of a judge
Alternative way - in courtroom but unable to see defendant or other person, outside the courtroom or by video recoding made before hearing
Any other way- provided for by evidence act 2006 or any other enactment

Question 7

List two ways of alternative ways of giving evidence

Answer 7

In courtroom but unable to see the defendant
By video recording made before the hearing

Question 8

Define statement

Answer 8

This is spoken or written assertion by a person or non verbal conduct by a person intended by that person as an assertion of any matter

Question 9

Define direct evidence

Answer 9

This is any evidence given by a person as to the fact in issue that he or she has witnessed by seeing, hearing, or otherwise experienced

Question 10

Define circumstantial evidence

Answer 10

This is evidence of circumstances that do not directly prove any facts in issue but which allow an inference about the existence of those facts to be drawn

Question 11

Explain weight of evidence

Answer 11

The weight of evidence is it’s value in relation to the facts of issue the value will depend on a wide range of factors such as
A) the extent to which, if accepted it is directly relevant to or conclusive of the facts
B) the extent to which if supported or contradicted by other evidence produced
C) the veracity of the witness

Question 12

What are two ways in which unfairness arises and may result in the exclusion of evidence

Answer 12

Have an unfairly prejudicial effect on proceedings
Needlessly prolong the proceeding

Question 13

What did Woolmington v DPP establish

Answer 13

The burden of proof clearly lies with the prosecution to prove all elements of the offence

Question 14

Fundamental principle in criminal law is the presumption of innocence and the burden of proof lies with the prosecution, explain butane of proof and the balance of probabilities

Answer 14

A) beyond reasonable doubt is the standard of proof, the jury needs to be satisfied of guilt before a conviction can be obtained
B) balance of probabilities is the standard of proof required for defence to prove a particular element in the case, requires a reasonable standard of proof but not so high as beyond reasonable doubt

Question 15

R v Wanhalla a jury is told that reasonable doubt is

Answer 15

An honest and reasonable uncertainty in your mind about the guilt of the defendant after you have given careful consideration to all the evidence

Question 16

What is the purpose of evidence Law and give 4 examples

Answer 16

The purpose of the act is to help secure just determination of proceedings by
Enhancing access to the law of evidence
Avoiding unjustified expense and delay
Protecting the rights of confidentiality and other important public interests
Promoting fairness to witnesses and parties
Providing rules that recognise the importance of the rights affirmed by the NZBOR 1990

Question 17

What are the presumptions of law and give an example

Answer 17

Presumptions of law are inferences that have been expressly drawn by law from particular facts, may be either conclusive or rebuttable

Eg a child under 10 is unable to be convicted

Question 18

What are presumption of facts

Answer 18

Presumption of facts are those that the mind naturally and logically draws from the given facts. They are logical inferences, and so are always rebuttable

Question 19

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence
Name two exceptions

Answer 19

Exceptions are when no evidence needs to be given because of
Judicial notice
Facts are formally admitted

Question 20

Explain the concept of judicial notice Section 128 and section 129

Answer 20

When a court takes judicial notice as fact it declares that it will find that the fact exists or will direct the jury to do so even though no evidence has been established the fact exists

Eg the if the date of Christmas were an issue

Question 21

In deciding wether evidence is admissible the courts have reference to certain principles to determine admissibility what are four of these principles of admissibility

Answer 21

Reliability
Relevance
Unfairness
Public interest

Question 22

When might relevant evidence not be admissible

Answer 22

It is inadmissible under this act or any other act
Excluded under this act or any other act

Question 23

Explain the term relevance

Answer 23

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

Question 24

When might relevant evidence be excluded for unfairness

Answer 24

Evidence may be excluded if it would result in some unfair prejudice in the proceeding
Evidence may be excluded if it is obtained by unfair or improper means

Question 25

Section 8 of the evidence act provides that the judge must exclude evidence of its probative value is outweighed by the risk that the evidence will be one of two things name both

Answer 25

Have an unfairly prejudicial effect on the proceeding Needlessly prolong the proceeding

Question 26

If evidence is admitted for what purposes can it be used for

Answer 26

Once admitted, generally used for all purposes The stature proceeds on the basis that generally speaking evidence is either admission or for all purposes or not admissible at all (HART)

Question 27

List matters that the exclusive rules of evidence deal with

Answer 27

Veracity Propensity Hearsay Opinion Identification Improperly obtained evidence

Question 28

Section 37 deals with veracity rules of evidence list 4 points under this section a judge must take into account wether determine veracity evidence

Answer 28

Lack of veracity on the part of a person when under legal obligation to tell the truth The person has one or more convictions indicating dishonesty Any previous inconsistent statements made to police Bias on the part of the person A motive unhelpful to the truth

Question 29

The prosecution may only offer evidence about a defendant’s veracity if

Answer 29

The defendant has offered evidence regarding their veracity or has challenged the veracity of a witness When the judge permits it

Question 30

What does propensity evidence mean

Answer 30

Means evidence that tends to show a persons propensity to act in a particular way or in a particular state of mind being acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 31

What does propensity evidence not include

Answer 31

Evidence of an act or omission that is one of the elements of the offence they stand accused The cause of the act in question Evidence that is solely about veracity

Question 32

Define hearsay

Answer 32

A statement made by a person other than the witness A statement offered in evidence to prove the truth of it’s contents

Question 33

Why is hearsay excluded, list three reasons for the rule against hearsay

Answer 33

Where the maker of the statement is not called as a witness there is no opportunity to cross examine them Juries can not evaluate the evidence properly without being able to see the demeanour of the maker of the statement Danger witnesses making mistakes about the meaning or content of the statement made by other people

Question 34

List 4 reasons a witness may be unavailable

Answer 34

Dead Is outside of NZ and not practicable for them to be a witness Is unfit to be a witness due to age, health, mental condition Cannot be found after reasonable diligence Is not compellable to give evidence

Question 35

What is a business record

Answer 35

A document that is made to comply with a duty or in the course of a business and as a record or part of a record of that buisness

Question 36

Why is opinion evidence unreliable or excluded

Answer 36

Where a witness offers bare opinion it holds little probative weight There is a danger that opinion evidence will usurp the function of tribunal of fact A witness’s evidence of opinion may be based on other evidence which would be inadmissible

Question 37

When is non expert opinion evidence allowed

Answer 37

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable a witness to communicate, or the fact finder to understand what the witness saw, heard or otherwise perceived

Question 38

In order to be admissible under section 24 the statement of opinion must fulfil two basic criteria what are they

Answer 38

Opinion must be the only way in which to effectively communicate the information to the fact finder The witness must be stating an opinion from something personally perceived

Question 39

Expert opinion evidence admissibility under section 25

Answer 39

Must be that of an expert Comprise expert evidence Offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

Question 40

Define expert witness

Answer 40

A person with specialised knowledge or skill based training, study or experience

Question 41

Things to verify with a witness before summoning them to court

Answer 41

Wether they are looked to give evidence Wether they are required to give evidence Wether they can refuse to give evidence What type of witness they will be

Question 42

What does section 71(1) say about eligibility and compellability

Answer 42

Any person is eligible to give evidence and that person who is eligible to give evidence is compellable to give that evidence

Question 43

Compellability if defendants and associated defendants

Answer 43

A defendant is not a compellable witness for the prosecution or defendant An associated defendant is not compellable against a defendant unless They are being tried separately from the other defendant The proceeding against them has been determined

Question 44

What is an associated defendant

Answer 44

Is a person whom a prosecution has been instituted for An offence that arose in relation to the same events as the offence for which the defendant is prosecuted An offence that relates to or is connected with the offence which the defendant is being prosecuted

Question 45

Explain privilege and who has privilege

Answer 45

Privilege is the right to refuse to disclose or to prevent disclosure of what might otherwise be admissible evidence Communication with legal advisors Communication with minister of religion Solicitors trust account Settlement negotiations Information obtained from medical practitioners and clinical psychologist Preparatory materials for proceedings

Question 46

Under section 59 limited privilege protecting information obtained from medical practitioners or clinical psychologists whom does this apply and not apply

Answer 46

Applies to a person who consults or is examined for drug dependency, or other condition or behaviour that may manifest itself in criminal conduct Does not apply to a person who has been required by a judge, lawful authority to submit themselves for medical examination

Question 47

Privilege against self incrimination

Answer 47

Applies when a person is required to provide specific information in the course of a proceeding or by a person exercising a statutory power or duty which provided would be likely to incriminate them under NZ law for an offence punishable by a fine or imprisonment

Question 48

Previous consistent statement rule

Answer 48

A previous consistent statement is not admissible unless Responds to a challenge about the witnesses veracity or accuracy based on a previous inconsistent statement or claim of invention on the part of the witness Forms an integral part of events before court Consists of mere fact a compliant has been made in a criminal case

Question 49

Under section 121 it is not necessary in a criminal proceeding for the evidence to on which the prosecution relies to be corroborated except for what offences

Answer 49

Perjury, false oath, false statement or declaration, treason

Question 50

What is a judges role in a jury trial

Answer 50

Decide all questions regarding admissibility of evidence Explain and enforce the general principles of law applying to the point of issue Instruct jury on rules of law by which evidence is weighed once it is submitted

Question 51

Comments on defendants right to silent

Answer 51

No person other than the defendant, counsel or the judge may comment on the fact the defendant did not give evidence

Question 52

Define leading question

Answer 52

A question that directly or indirectly suggests a particular answer to the question

Question 53

General rule of leading questions is that they are not to be put to a witness what are the 3 reasons why

Answer 53

There is a natural tendency for people to say yes Counsel can more easily get the answers that they are wanting to recieve There is a danger that the leading questions will result in the manipulation or construction of evidence between counsel and the witness

Question 54

When are leading questions allowed

Answer 54

The question relates to an introductory or undisputed matters The question is put with consent of all parties The judge allows the question

Question 55

Can a witness refresh their memory before court

Answer 55

A witness may refresh their memory by reference to statements they have previously made, may check their recollection of events with officer that interviewed them and so forth

Question 56

A witness can refresh their memory with a document in court on the conditionsb

Answer 56

The leave of the judge is obtained The document must be shown to all parties in the proceeding The document must have been made at the time when the memory was fresh

Question 57

Define hostile witness

Answer 57

Exhibits lack of veracity when giving evidence unfavourably to the party who called the witness on a matter the witness may reasonably have knowledge Gives evidence that is inconsistent with a statement made by the witness that exhibits an intention to be unhelpful to the party who called the witness Refuses to answer or deliberately withholds evidence

Question 58

If a witness is declared hostile what may be asked

Answer 58

Leading questions Questions designed to probe accuracy of memory or perception Questions as to prior inconsistent statements Challenges to veracity, including evidence from other witnesses

Question 59

The burden of proof lies with the prosecution except where

Answer 59

The defence of insanity is used Specific statutory exceptions exists The offence is a public welfare regulatory offence

Question 60

When may a hearsay statement be admissible

Answer 60

The circumstances related to the statement provide reasonable assurances it is reliable and The maker of the statement is unavailable The judge considers that undue expense or delay would be caused if the maker of the statement would be required as a witness

Question 61

Unacceptable questions when may a judge allow a witness not to answer a question

Answer 61

Any question which the judge seems to be improper, unfair, misleading, needlessly repetitive or expressed in a language to complicated for the witness to understand need not answer