Evidence Flashcards
(117 cards)
1
Q
What is evidence?
A
It is whole body of material court/ tribunal/ judge/ jury may take into account reaching decision.
It can be oral/ written/ visual
2
Q
What is admissible evidence?
A
It is evidence that is legally able to be received by court.
3
Q
What is a witness?
A
A person who gives evidence and is able to be cross examined in a proceeding.
4
Q
What is direct evidence?
A
It is evidence that is given by witness about facts in issue that has/is -
Seen/ heard/ experienced
Eg: saw d stab the complainant
5
Q
What is an enforcement agency?
A
NZ Police or anybody or any organisation that has statutory responsibilities for enforcement of enactments.
Eg: ird, Customs, Ministry of Fisheries
6
Q
What is circumstantial evidence?
A
It is evidence that doesn’t directly prove facts in issue BUT allows inferences to be drawn. More circumstances leading to interfere the more stronger the evidence becomes.
7
Q
What is propensity?
A
It is evidence about a persons propensity to act is a particular way or have a particular state of mind.
Including evidence of acts, omissions, events or circumstances which a person is alleged to have been involved in.
8
Q
What is veracity?
A
It is a disposition of a person to refrain from lying, generally or in a proceeding.
9
Q
Explain hearsay statement
A
It is a statement made by someone other than a witness and is offered in evidence in the proceeding to prove the truth of its contents.
10
Q
Definition of statement
A
It is a spoken/ written assertion or non verbal conduct intended to be assertion of any matter.
11
Q
Explain proceeding
A
Proceeding conducted by a court
OR
Application to court connected with a proceeding
12
Q
What is incriminate?
A
It is to provide info that is likely to lead to or increase the likelihood of prosecution of a person for a criminal offence.
13
Q
How can you give evidence?
(3 ways)
A
Ordinary way: orally in court in the presence of a judge/ jury or reading a statement
Alt way: in court but unable to see D or outside court (screens/ AVL setup)
Other way: in a way provided by Evidence Act 2006 or other enactment
14
Q
What is offering evidence?
A
Evidence must be elicited before it’s offered. Putting a proposition to witness isn’t offering evidence until witness accepts proposition.
15
Q
Explain weight of evidence
A
Value in relation to facts in issue:
- Veracity of the witness
- Extent to which supported or contradicted by other evidence
- Extent to which if accepted is directly relevant or conclusive of those facts
Weight= degree of probate force given to evidence
16
Q
Explain exclusionary rules
A
They are rules the exclude evidence
Eg: unreliable or unduly prejudicial or otherwise unfair to admit it.
17
Q
What is facts in issue
A
PPS must prove to establish the elements of the offence
OR
D must prove to succeed with a defence when he carries burden of proof.
Usually facts alleged by charging document.
18
Q
Explain relevance
A
Evidence is relevant if -
“It has tenancy to prove or disprove anything that is of consequence to the determination of a proceeding”
S.7(3) Evidence Act 2006
19
Q
Explain Woolmington principle
A
It is a fundamental principle in criminal law and is a presumption of innocence. Subject to some statutory exceptions burden of proof lies with PPS to prove all elements of offence.
20
Q
Exceptions to Woolmington principle
A
Burden of proof on defendant when:
- legal burden placed on D (eg: insanity s23 CA61)
- express statutory exceptions (eg: possession of offensive weapon s202A CA61). Provides a defence where D can prove absence of intent.
- public welfare regulatory offences (regulated conduct endangering public). Strict liability offences (PPS prove AR and burden passes to D to prove absence of fault). AR= actus reus
21
Q
Evidential burden on Defendants
A
If PPS prove facts so can be concluded committed actus reus/ men’s rea then D has to produce a story/ evidence if they want to suggest it is wrong.
Not a burden of proof and doesn’t have to prove anything.
D can put up a defence to a charge - evidential burden. Means defence can’t be left to the judge/ jury as it must be made live issue by D. Once it’s made live issue, PPS must destroy it because they have burden of proof.
22
Q
What must party bearing burden of proof do?
A
Discharge it to standard requirements.
If they have burden:
PPS- beyond reasonable doubt
D- balance of probabilities
23
Q
What is beyond reasonable doubt? (BRD)
A
Beyond reasonable doubt is honest/ reasonable uncertainty left in the mind about guilt of D after careful/ impartial consideration of evidence. Very high standard of proof only met if sure they’re guilty.
24
Q
What is burden of proof?
A
More probable than not.
25
What is the purpose of Evidence Act 2006
Section 6 (6 points)
Act aims to help secure just determination of proceedings by;
- providing for facts to be established by application of logical rules AND
- providing rules of evidence recognising importance of rights in NZBORA90 AND
- promoting fairness to parties/ witnesses AND
- protecting rights of confidentiality and other important public interests AND
- avoiding unjustifiable expense and delay AND
- enhancing access to the law of evidence
26
What makes good evidence?
Good evidence establishes what you are trying to prove.
Facts must prove elements of charge and evidence should be made up of facts proving the charge.
27
What is the general rule about facts?
General rule is that all facts in issue and facts relevant to issue MUST be proved.
28
What is circumstantial evidence?
It is a fact from which the judge or jury may infer the existence of fact in issue. It offers indirect proof of fact in issue. Pieces of circumstantial evidence viewed as a whole is sufficient to prove guilt.
29
What are exceptions to the general rule for evidence?
No evidence needs to be given of facts when;
- judicial notice is taken
- facts are formally admitted
30
Explain judicial notice
Court declares that is will find that the fact exists or will direct the jury to do so even though evidence hasn’t established fact exists. (Eg: date of Xmas)
31
S.128 EA 2006
Notice of uncontroverted facts
1. Judge or Jury may take notice of facts known/ accepted generally in the locality the proceeding being held and they can’t reasonably be questioned (eg. Date of city fair).
2. A Judge may take notice of facts capable accurate/ ready determination by reference to sources whose accuracy can’t reasonably be questioned. If the proceedings involve a Jury, may direct the Jury in relation to this matter.
32
S.129 EA 2006
Admission of reliable published documents
1. A Judge may, in matters of public history/ literature/ science/ art, admit as evidence any published documents that the Judge considers to be reliable sources of info on the subjects to which they respectively relate.
2. Exception to hearsay/ opinion/ expert rules.
33
Rules on facts being formally admitted
PPS and D can decide evidence is accepted and proven from the outset.
Section 9(2) and 9(3) provided that the D or PPS may admit any fact, and therefore dispense with proof of that fact.
34
Presumptions
Presumptions of law may be either conclusive (eg. Child can’t be charged) or rebuttable (eg. Innocent until proven guilty).
Where no direct evidence offered or obtainable disputed facts can be inferred from other facts. Can be presumption of law or fact.
Presumption of law= inferences drawn by law from particular facts.
Presumption of fact= inferences mind naturally and logically draws from given facts. Always rebuttable (eg. Presume person guilty knowledge of possess recently stolen items).
35
Who determines admissibility?
Evidence is admissible if it can be legally received by a court. If evidence can’t be received then it is inadmissible.
The judge decides on admissibility.
Judge takes into consideration:
- Relevance
- Reliability
- Unfairness
Party willing to bring evidence must show it’s admissible.
36
Define relevant evidence
S. 6 EA 2006
Relevant evidence only is admissible unless inadmissible/ excluded under any act. Relevant if has tendency to prove/ disapprove anything of consequence to determination of proceedings.
37
When is relevant evidence inadmissible?
Usually due to lack of:
Reliability
Fairness
Public interest
Or a combination of these factors
38
S. 8 EA 2006
Fairness and general exclusion
Judge must exclude evidence if it’s probative value is outweighed by risk of evidence;
- Have unfair prejudicial effect proceeding (eg. Will give evidence more weight than should, obtained by unfair or improper methods, be misled by evidence, use evidence for illegal purposes)
- Needlessly prolong proceeding.
When considering must take into account right of D to offer effective defence.
39
What is 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” s8(1)(a)
- “Needlessly prolong the proceeding” s8(1)(b)
40
S. 9 EA 2006
Allows for admission of evidence even if it’s not otherwise admissible, where the parties agree. The judge retains control of this process and may decline to admit the evidence even if all parties agree or not.
41
S. 14 EA 2006
Admissibility
Where Qs arises concerning the admissibility of any evidence, the Judge may still admit evidence subject to further evidence being offered later to establish its admissibility.
42
S. 15 EA 2006
Hearing in chambers
Voir dire = evidence by witness to prove facts necessary to decide if some other evidence should be admitted. Known as hearing in chambers. Jury excluded from this.
43
Exclusive rules of evidence
The exclusive rules of evidence
(Veracity/ Propensity/ Hearsay/ Opinion/ ID/ Improp ob evidence)
44
Relationship between the veracity and propensity
Veracity- a disposition to refrain from lying
Propensity- a tendency to act in a particular way
They’re character evidence. Rules don’t apply if veracity is an element of an offence being tried (eg. Perjury) or bail/ sentencing hearings unless evidence is covered by S.44.
45
S.37 EA 2006
Veracity rules
Can’t offer evidence in civil/ criminal proceeding about persons veracity unless it’s substantially helpful assessing their veracity - must comply with s.38 and s.39.
In deciding if it is “substantially helpful” may consider if evidence tends to show:
- lack of veracity when under legal obligation to tell the truth.
- convicted for 1+ offence indicating propensity for dishonesty or lack of veracity.
- previous inconsistent stx made by person.
- bias
- motive to be untruthful
Party who calls a witness can’t offer evidence;
- to challenge veracity unless Judge determines the witness to be hostile.
- about facts in issue contrary to evidence of witness.
For the purpose of this act, veracity means the disposition of a person to refrain them from lying. Generally or in a proceeding.
Rules focus solely on truthfulness and do not attempt to control evidence about the accuracy of the stx by a person who is attempting to tell the truth.
46
Explain substantial helpfulness…
Tendency to prove or disapprove a matter.
Higher threshold than relevance. Applied during cross examination and evidence in chief. Test isn’t sufficient when;
- PPS want to offer evidence about D veracity And
- D offers veracity about co-defendant
47
S.38 EA 2006
Evidence of defendants veracity
D in criminal proceeding can offer evidence about their own veracity.
PPS in criminal proceeding only offer evidence about D’s veracity if;
- D offered evidence about own veracity OR
Challenged veracity of PPS witness by referring to things other than the facts in issue AND
- Judge permits PPS to do.
When deciding to give permission Judge may take into account;
- Extent D’s veracity or veracity of PPS witness put in issue by D’s evidence
- Time elapsed since conviction about which PPS seeks to give evidence
- If any evidence given by D about veracity was elicited by PPS.
48
S.40 EA 2008
Propensity Rule
Evidence tending to show persons propensity to act in a particular way or have a particular state of mind. Includes evidence of:
Acts
Omissions
Events
Circumstances allegedly involved in
Doesn’t include evidence of act/ omission that’s element of offence person being tried OR
Cause of action in proceeding
Party can offer propensity evidence in civil/ criminal proceedings about any person. BUT propensity evidence about;
- D in criminal proceeding offered only in accordance s.41-43.
- Complainant in sex case in relation to sex experience offered only in accordance s.44
49
S.41 EA 2006
Propensity about defendants
D in criminal proceeding offer propensity evidence about self. If they do, PPS or another party with permission the Judge can offer propensity evidence about D.
50
S.43 EA 2006
Propensity evidence offered by PPS about D
PPS offer propensity evidence about D in criminal proceeding if has probative value in relation to issue in dispute outweighing risk evidence unfair prejudicial effect on D.
When assessing probative value must take into account nature of issue in dispute. May consider:
-Frequency of acts/ omissions/ events/ circumstances which are subject of evidence.
-Connection in time between above which are subject of evidence and what constitutes offence being tried.
- Extent of similarity between above
- Number of people making same/ similar allegations against D
- Allegations may be result of collusion or suggestibility
- Extent to which above which the defendant is being tried are unusual.
When assessing prejudicial effect of evidence on D must consider -
- if evidence likely unfairly predispose fact finder against D
- if fact finder tend give disproportionate weight to evidence of other acts/ omissions
51
Define hearsay
It is a stx made by someone who isn’t a witness. Is offered to prove truth of its contents. Doesn’t include stx/ non-verbal conduct not intended to be assertion.
52
S.17 EA 2006
Hearsay Rule
Hearsay stx inadmissible except;
- as provided by this subpart or provisions any other act
- where act say this subpart not apply AND hearsay stx is relevant and not otherwise admissible under act.
Must comply with hearsay rules unless expressly excluded.
53
S.18 EA 2006
General admissibility of hearsay
Hearsay stx admissible if;
- circumstances relating to stx provide reasonable assurance stx is reliable AND
- maker of stx is unavailable as witness OR judge considers undue expense/ delay caused if maker request to be witness
54
S.16(1) EA 2006
Defines circumstances
- nature/ contents of stx
- circumstances relating to making of stx
- veracity
- accuracy of obs of the person
55
Reliable - hearsay
Hearsay has issue with reliability as risk too much weight given to evidence because;
- maker of stx not called as witness so can’t cross examine
- juries can’t evaluate evidence without being able to see demeanour
- witnesses make mistakes about meaning of content of stxs
56
S.16 EA 2006
Unavailablity or undue expense/ delay
Unavailable if:
- dead
- outside NZ and not reasonably practicable to be a witness
- unfit to be witness because of age/ physical or mental condition
- can’t with reasonable diligence be identified or found
- is not compellable to give evidence
57
S.22 EA 2006
Notice of hearsay in criminal proceedings
Hearsay not offered in evidence unless complied with below OR
Every party waived required OR
Judge dispenses required
Party proposing hearsay in criminal proceeding must provide written notice stating:
- intent to offer hearsay stx
- name of maker
- if stx made orally, contents of stx
- circumstances relating to stx providing reasonable assurance reliable
- why person unavailable or why undue expense/ delay caused if required as a witness
Above must be complied with in sufficient time before hearing to provide fair opportunity for parties to respond.
Judge can dispense of req above if;
- having regard etc no one substantially prejudiced by failure to comply
- compliance not reasonably practical in circumstances
- interests of justice so require
58
S. 19 EA 2006
Admissibility of hearsay statements contained in business records
Hearsay stx in business record admissible if;
- no useful purpose required person to be witness as can’t reasonably expected given time to recollect.
- person who supplied info unavailable as a witness
- undue expense/ delay caused if requested as a witness.
Business record definition
Document includes stx in NBs or JobSheets
- made to comply with duty in course of business as records or business.
- info supplied directly/ indirectly by person who reasonably supposed by court to have personal knowledge of matters dealt with in info supplied
59
What is opinion rule?
Stx of opinion tending to prove/ disprove fact
60
S. 23 EA 2006
Opinion rule
Stx of opinion isn’t admissible except provided by S.24 or S.25
Rational for exclusionary rule
Prevents admission of unreliable/ misleading evidence. Justifications for rule are;
- witness may offer bare opinion holding little probative weight.
- witness offering opinion might usurp function of tribunal to draw inferences.
- opinion may be based on evidence which if stated expressly would be inadmissible.
61
S. 24 EA 2006
General admissibility of opinions
Witness may state opinion in evidence if necessary to enable witness to communicate OR
Fact finder to understand what saw/ heard/ otherwise perceived
2x basic criteria to be admissible under S.24
1. Only way to effectively communicate info to fact finder
2. Must be opinion about something personally perceived
62
S.25 EA 2006
Admissibility of expert opinion evidence
Expert evidence admissible if fact finder likely obtain substantial help understanding other evidence. If opinion based on fact outside expertise only relied on if fact is/ will proved or judicially noticed.
Opinion of expert not inadmissible just because is about;
- ultimate issue to be determined in proceeding
- matter of common knowledge
63
Definition of expert and what the must state
Specialist knowledge
Skill based on study/ experience
Must show court has qualifications
Must state:
Qualifications
Reasons for giving opinions
Literature or other material used/ relied upon
Mustn’t give opinion outside area of expertise
What can opinion be based upon
Partly on books/ journal articles
Facts supplied by others (eg. Analyses of body tissues carried out by colleagues). Are assumed facts that have no first hand knowledge about.
Notice of using expert evidence
Obligation on defence to give notice using expert evidence. Must disclose brief of evidence at least 14 days before trial.
64
S.129 EA 2006
Documents
Published documents can be admitted as evidence if judge decides they are reliable sources.
65
What must you confirm before serving summons
- if allowed to give evidence
- if required to give evidence
- if they can refuse to give evidence
- what type of witness they will be
66
S.71 EA 2006
Eligibility and compellability generally
In civil/ criminal proceeding;
- Any person is eligible to give evidence AND
- Person who is eligible is compellable
Subject to s.72-75
67
S.71-S.75 EA 2006
Eligibility
S.72
Judge, juror/ counsel (unless w judge permission) can’t give evidence. If juror gives evidence would be discharged from jury and would continue with 11 people.
S.73
D in a criminal proceeding isn’t compellable witness for PPS/ defence.
Associated D isn’t compellable to give evidence again for/ against D unless;
- being tried separately from D OR
- proceeding against associated D been determined
Proceeding been determined if;
- been stayed/ withdrawn/ dismissed/ acquitted
- plead guilty/ found guilty/ sentenced/ otherwise dealt with
Associated D is a person prosecuted for offence arising in relation to same even as D prosecuted or related/ connected
S.74
Judges about own conduct as judge, sovereign, governor-general, head of state not compellable to give evidence.
S.75
If bank not party to proceeding no bank officer compellable to produce banking records if contents can be proven under business record exception to hearsay rule (s.19)
68
What is privilege?
Right to refuse to disclose/ prevent disclosure of what otherwise be admissible
69
Examples of privilege?
- comms with legal advisors
- prep materials for proceedings
- comms with ministers of religion
- info obtained by medical practitioners/ clinical psychologists
- informer privledge
70
Comms with legal advisors
Fundamental condition on which admin of justice rests. Following applies to claim privilege;
- intended to be confidential (doesn’t matter if overheard)
- made for purposes obtaining/ giving legal services.
- not extend to comms made for dishonest purpose or enable anyone commit/ plan to commit offence
Prep materials for proceeding
Following applies to claim privilege;
- applied comms/ info made/ received/ complied/ prep for primary purpose prep for proceeding.
- privilege if are/on reasonable grounds contemplate becoming party to proceeding.
- privilege can be in respect of comms between legal advisor and other person.
71
S. 58 EA 2006
Comms with ministers of religion
Privilege if comms (all types even if doc) was;
- made in confidence in ministers capacity as minister of religion AND
- made for purpose obtaining/ receiving religious/ spiritual advice/ benefit/ comfort.
Minister of religion if had a status in church or other religious/ spiritual community that req;
- to receive confidential comms AND
- to respond with religious/ spiritual advice/ benefit/ comfort.
72
S. 59 EA 2006
Info obtained by medical practitioners/ clinical psychologists
Applies to person who consults/ examines by med prac/ clinical psych for drug dependency/ other condition or behaviour that may manifest self in criminal conduct BUT doesn’t apply when req by judge to be examined/ tested.
Privileged in criminal proceeding for;
- comms made by person to AND info received to enable them examine/treat/care.
- prescription/ notes as a result of examine/treat/care.
Clinical physch= health practitioner reg under Health Practitioners Competence Assurance Act and permitted diagnosis/ treat people suffering mental/ emotional issues.
Drug dependency = state periodic/ chronic intoxications produced by repeated use/ consumption/ smoking CD. Compulsive desire to continue.
73
S.53 EA 2006
Effect and protection of privilege
If privilege conferred by S.54-59 have right to refuse to disclose in proceeding;
- comms
- info contained in comms
- opinion formed by person based on comms/ info.
74
What is self- incrimination?
Provision by person of info could reasonably lead/ increase likelihood of prosecution.
75
S. 60 EA 2006
Privilege against self- incrimination
This section applies if-
- give info in course of proceeding
- by person exercising a stat power/ duty
- NZP/ other person in course of investigation into criminal offence/ possible offence AND
If info given likely incriminate person under NZ law for offence punishable by fine/ prison.
Privilege in respect of info and can’t be req to provide it AND can’t be prosecuted/ penalised.
Not apply to body corp OR D in criminal proceeding giving evidence about matter tried or claiming on behalf of another
76
S.62 EA 2006
Claiming privilege against self- incrimination in court proceedings
If appears to judge party/ witness may have grounds to claim privilege against self- incrimination judge must be satisfied person is aware of privilege and its effect.
Person claiming privilege must offer sufficient evidence to enable judge to assess if self-incrimination is likely.
77
S.64 EA 2006
Informers
Informer (eg UC) has privilege in respect info that disclose/ likely disclose D.
Informer if;
- supplied gratuitously OR for reward info to an enforcement agency or to a rep of a EA about possible/ actual commission of offence in circumstances reasonable expectation ID not disclosed AND
- not called as a witness by PPS to give evidence relating to that info.
When privilege for informers be disallowed
If info given for dishonest purpose or to enable/ aid a person to commit/ plan to commit an offence or judge believes evidence necessary to present an effective defence.
78
What is an informer?
Someone who as supplied, gratuitously or for reward, info to an enforcement agency or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed.
79
What is jury deliberations
Evidence must not be given about jury deliberations - incls everything discussed during fact finding function. But evidence about things like competency of juror can be given.
Exceptions - if judge satisfied exceptional circumstances so compelling reason to allow evidence weigh;
- public interest protecting confidentiality of jury deliberations generally.
- public interest ensuring justice is done
80
Protection of journalists sources
If a journalist promises informant not to disclose ID journalist and employer isn’t compellable to answer any Qs/ produce any doc that disclose informant ID or enable ID to be discovered.
A high court judge can order protection not apply if satisfied public interest in disclosure outweighs;
- likely adverse effect on informant or other person if disclose made
- public interest in comms of facts to public by media
81
S.69 EA 2006
Overriding discretion about confidential info
Judge can make direction following not disclosed in proceeding;
- confidential comms
- confidential info
- info that would/ might reveal confidential source of info
Give directions if considers public interest in disclosure outweighed by public interest in;
- preventing harm to person confidential info was obtained.
- preventing harm to relationship in course of which confidential info was obtained.
When considering whether to give a direction under section just must regard;
- likely extent of harm that may result from disclosure.
- nature of comms/ info and likely importance in proceeding
- nature of proceeding
- societies interest in protecting privacy of victims (esp sex offences)
82
What is corroboration?
Independent evidence tending to confirm/ support some fact of which other evidence given implicates defendant.
83
S.121 EA 2006
Corroboration
Evidence doesn’t have to be corroborated in criminal proceeding except for offences of perjury/ false oaths/ false statements/ declarations/ treason
If there is a jury not necessary for judge to;
- warn jury dangerous to act on uncorroborated evidence OR similar
- give directions about absence of corroboration.
84
S.125(1) EA 2006
Judicial directions about children’s evidence
In jury trial when complainant is a child, judge must not give warning about absence of corroboration if wouldn’t have given the warning if complainant was an adult.
85
What is a judges role in jury trial
- decide Qs about admissibility of evidence
- explain/ enforce general principles of law
- instruct just on rules of law
86
Adversarial or accusatorial system of justice features
- up to each party to decide what witnesses to call, order, Qs to be asked
- each party has right to cross exam
- judge/ jury aren’t entitled to go beyond evidence presented.
- judge only ask Qs of witnesses when justice req it
87
Oaths and affirmation
Witnesses who are 12+ must take oath/ affirmation. If under 12 must;
- informed by judge of importance of telling the truth and not lying.
- promise to tell the truth.
Exception with judges permission - eg if child has a disability or child can’t promise to tell the truth.
88
Jury trials
Sequence of jury trials
- jury empanelled. Judge opening instructions which cover things: eg role of jury
- crown opening, address and case presented - eg witness called and D oppose to cross
- D opens case and case presented - eg witnesses called and crown opposed to cross
- crown and defence close - eg summarise, no new info
- judge sums up to jury before retired to consider verdict.
89
S.84 EA 2006
Examination of witnesses
Unless act provides otherwise OR judge directs to contrary;
- witness gives evidence in chief first (affidavit and reading stx counts)
- may be cross examined by all parties other than party calling witness
- may be re-examined
90
A view
Inspection of place/ thing. Eg: an inspection of a scene.
All parties and lawyers entitled to attend. A judge decides whether or not a view should be held. Information obtained at a view may be used as though the information had been given in evidence.
Demo/ reconstruction may also be held if relevant and if their probative outweighs the risk of unfair prejudicial effect in the proceeding.
91
D on giving evidence
No person other than D/D counsel/ judge can comment that didn’t give evidence at trial.
92
Evidence in chief
Purpose
Elicit testimony that supports the case of the party calling that witness.
Evidence must usually be given orally by a witness after they have taken oath/ affirmation. The ordinary way is in court. But oral testimony doesn’t mean physical presence in court, since live, oral testimony may sometimes be given via closed circuit television or video link. Written evidence can also be given as long as both parties consent.
93
Leading questions
Questions that directly/ indirectly suggests particular answer to questions
94
Why aren’t leading questions allowed?
- natural tendency to agree with suggestions
- counsel asking leading q’s of own witnesses more easily elicit answers they want
- danger will result in manipulation of evidence through collusion
95
S. 89 EA 2006
Leading questions in examination in chief and re- examination
Leading questions not put to witness in examination in chief or re-examination unless;
- q relates to introductory or undisputed matters
- q put with consent all other parties
- judge with discretion allows
Leading Qs allowed under judge discretion in following circumstances;
- direct witnesses attention to subject of ID evidence
- jog witnesses memory about surrounding circumstances
- very young or disabled
- declared hostile
96
Define refreshing memory in court
With leave judge consult document while giving evidence made/ adopted when memory fresh.
Conditions
- leave of judge obtained
- document shown to every party in proceeding
- document made/ adopted when memory fresh (6 weeks later was “fresh”)
- document made by witness or person acting on their behalf.
The document must of been made by the witness or another person acting on the witness behalf in their presence and assented to by the witness. The document may because admissible.
97
Refreshing memory out of court
Can refresh memory by reference to stx, brief of evidence, deposition stx which may have made months before. Means used refresh can affect weight of evidence.
98
S.35 EA 2006
Previous consistent statements rule
Previous stx of witness that consistent with witnesses evidence not admissible unless;
- responds to challenge to witnesses veracity or accuracy based on previous
- inconsistent stx or on claim of invention by witness
- forms integral part of events before court
- consists of mere fact complaint been made in criminal case
99
What is a hostile witness
- lack of veracity on matter reasonably supposed to have knowledge
- evidence inconsistent with stx made appearing to have intent to be unhelpful
- refuses to answer Q or deliberately withholds evidence
- witnesses who simply fail to come up to brief means unfavourable and not mean hostile
100
What to do when you have an hostile witness?
Leave may be sought from Judge to declare witness hostile. If granted can ask Q’s in manner of cross exam to extent judge considers necessary to do justice. Incls:
- leading Qs
- Qs designed to probe accuracy/ memory/ perception
- Qs about prior inconsistent stx
101
Cross examination
Its purpose
All parties can cross exam apart from one calling witness
- elicit info supporting case of party conducting cross exam
- challenge accuracy of evidence in chief by casting doubt on veracity
- trials involving multiple Ds, each D has the right to cross - examine the witnesses of both the prosecution and co d
102
S.85 EA 2006
Unacceptable questions
Judge must disallow/ direct witnesses not obliged to answer Qs considers improper, unfair, misleading, repetitive, expressed in language too complicated to understand. Take account:
- age/ maturity
- physical/ intellectual/ physiological/ psychiatric impairment
- linguistic/ cultural background or religious beliefs
- nature of proceeding
- hypothetical Qs
103
S. 92 EA 2006
Cross- examination duties
In proceeding party must cross examine witness on significant matters that contradict evidence of witness if witness could reasonably expect to be in position to give admissible evidence on those matters
If party fails to comply with section judge may;
- grant permission for witness to be recalled and question about contradictory evidence
- admit contradictory evidence (but weight effected as not q about it)
- exclude contradictory evidence
- made any other order considers just
104
S.96 EA 2006
Cross examination on previous stx of witnesses
A party who cross examines witnesses may Q witness about previous stx made without disclosing contents if time/ place/ other circumstances of making statement ID
If doesn’t admit making stx and want to prove did make it;
- must show stx if in writing or disclose contents if not in writing
- must be given opportunity to deny making stx or explain inconsistency with testimony
105
Rules on re-examination
After cross exam, party who called witnesses may re-examine to clarify issue raised during cross- exam but can’t question on any other matter except with permission of judge.
If additional evidence allowed by judge then other parties must be allowed to cross examine on the additional evidence, and the judge may also allow further re-examination on matters arising out of that cross examination.
106
Evidence in rebuttal
Evidence called by either party after completion own case to rebut something arising during trial. Only admitted with leave of court if;
- relates purely to a formal matter
- relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (most common ground for leave to be granted)
- wasn’t available or admissible before PPS case was closed
- requires to be admitted in interests of justice
Evidence in rebuttal may be permissible up to the time when the jury retires (or judgement delivered in judge alone trials)
107
Recalling witnesses
Judge may recall one whose given evidence if considers in interests of justice to do so.
108
S. 122 EA 2006
Judicial directions about evidence which may be unreliable
If judge believes evidence is unreliable may warn jury of need for caution in deciding to accept evidence AND weight given to evidence. If no jury judge bear in mind need for caution.
Must consider whether to give warning when following evidence given:
- hearsay (hasn’t promised to tell truth)
- stx from D if that’s the only evidence implicating D ( may false confess)
- evidence from witnesses who may have motive to give false evidence prejudicial to D
- offence allegedly committed 10+ years previously (memory)
Judge doesn’t have to give particular words in warning
109
S. 123 EA 2006
Direction about evidence may be given
Criminal proceeding just must direct jury law makes provision for giving evidence in different ways and no adverse inferences should be drawn if witness offers evidence in alt way, D not allowed to personally cross examine, witness offers evidence with witness anonymity order.
110
S. 124 EA 2006
Warnings about lies
No instruction needs to be given to jury about evidence suggesting D lied before/ during criminal proceeding unless believes will place undue weight OR D requests warning given must be. For jury to conclude if lied.
When warning must be given should include direction;
- jury needs to be satisfied D did lie before use evidence
- people lie for various reasons
- jury shouldn’t conclude just because lied that guilty of offence charged
111
S. 125 EA 2006
Evidence given by children
Should be treated in the same way as adults giving evidence.
It prohibits:
- 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 (absent expert evidence) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.
It is to prevent differential treatment of child complainants and witnesses.
112
NG hearings
Witnesses
Advise time/ date/ place of trial
Advise of procedure (if new, set up a tour with court advisors)
Ensure remain within call of excluded from courtroom
Warn witnesses not to mix with jurors and to check they don’t know jurors
Advise witness about expenses (loss of day work)
113
NG hearings
O/C case general
Look/ stand/ speak correctly
Identify the defendant
Locate your witnesses and help as required
Do not mix or gossip with jurors or members of defence
114
NG hearings
O/C case giving evidence
Answer Qs asked
Say don’t know - don’t guess
Address judge properly
Advise judge of any mistakes asap or advise prosecutor if you finish giving evidence
115
What to do if you need to refer to notebook
Ask permission
Introduce material properly
Only allowed to refresh memory not read whole entry unless you have permission to read notes at time of interview
Discuss prior convos before statement of admission. Incase the statement is rejected.
116
General guidance
You are unbiased and assisting the court at the truth in the matter.
Remember at all times to be truthful, factual, unbiased and professional
117
Define balance of probabilities
Standard proof required for the D to prove a particular element of its case. Means to carry a reasonable degree of probability but not so high as its required for a criminal case. If the evidence is such that the tribunal can say “we think it more probable than not”, the burden is discharged, if the probabilities are equal then the burden is not discharged.
