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DDP - Modules > Evidence > Flashcards

Evidence Flashcards

(71 cards)

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1
Q

Evidence

A

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

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2
Q

Relevance

s7(3) Evidence Act 2006

A

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

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3
Q

Admissable Evidence

A

Evidence that is legally able to be recieved by a court

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4
Q

Facts in issue

A

Facts the

-prosecution must prove to establish the elements of the offence,

or

-defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof

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5
Q

weight of evidence

A

Value in relation to the facts in issue

depends on factors such as
- extent to which it is directly relevant to facts
- extent to which its supported o contradicted by other evidence
-the veracity of the witness

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6
Q

Offer Evidence

A

Evidence must be elicted before its offered.

witness must accept proposition s96(1)

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7
Q

3 ways of giving evidence

A
  • in ordinary way (orally in court room, affadavit, reading statement)
  • in alternative way - video recording, AVL
  • in any other way - provided for by evidence act 2006
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8
Q

incriminate

A

to provide information to increase likrlihood of prosecution for a criminal offence

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9
Q

statement

A

a spoken or written assertion by a person

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10
Q

Give evidence

A

a party who testifies both gives and offers evidence

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11
Q

R v Wanhalla

Beyond Reasonable Doubt

A

Start point - presumption of innocence

crown must make you sure that the accused is guilty before conviction

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12
Q

woolmington v DDP

A

it was held that the prosecution had to prove prisoners guilt, subject to defence of insanity and subject to any statutory exception. The burden of proof lies clearly with prosecution in relation to all elements of offence

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13
Q

woolmington principle

A

fundemental principle in criminal law is the presjmption of innicence.

Establishes the burden of proof lies clearly with the prosecuton in relation to all elements of the offence

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14
Q

exceptions to woolmington

A
  • defence of insanity
  • specific statutory exceptions
  • offence is a public welfare regulatory offence
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15
Q

practical obligation on defence

A

if prosecution prove facts which conclude the defendant committed act ( incl) mens rea the defendant has to provide story/evidence conclusion is wrong

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16
Q

veracity

A

disposition of a person to refrain from lying

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17
Q

purpose of evidence law

A

help secure the just determination of proceedings

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18
Q

Six objectives S6

A
  • providing for facts to be established by the application of logical rules
  • rules of evidence that support bill of rights
    -promote fairness to parties and witnesses
  • protect confidentiality snd other public interests
  • avoid unjustifiable expense/delay
    -enhance access to the law of evidence
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19
Q

R v Barlien

A
  • s6 sffect decisions re evidence

“this cannot override explicit exclusionary wording in the act itself”

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20
Q

Balance of probabilities

A

must carry a reasonable degree of probability

think it more probable than not

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21
Q

circumstantial evidence

A

evidence of circumstances that do not directly prove any fact in issue but allow infereces about the existence of those facts to be drawn

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22
Q

General rule of evidence

A

all facts in issue and facts relevant to the issue must be proved

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23
Q

propensity

A

persons tendancy to act in a certain way or have a particular state of mind

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24
Q

S8 General exclusion

A

judge must exclude evidence if its probative value is outweighed by the risk the evidence will have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding

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25
Unfair prejudice
is evidence that will - mislead - be given more weight than it deserves - be used for ab illegitmate purpose
26
S8 (2)
- before excluding evidence judge must take into account the right of the defendant to offer an effective defence
27
Hart v R (use of evidence)
statute proceeds on basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all
28
Rules of admissibility R v Gwaze
rules of admissibilty are rules of law including s7 & 8 and are not matters of discretion
29
When can veracity evidence be offered?
when the evidence is substantially helpful in assessing the person’s veracity
30
Substantial helpfulness
- higher threshold than relevance - it has to do more than simply have a tendency to prove or disprove a matter
31
When is substantial helpfulness bot a sufficient test?
where the prosecution wish to offer evidence about a defendant’s veracity (s38) where a defendant offers veracity evidence about a co-defendant (s39)
32
Hearsay reaons why not admissible
- the statement maker is not able to be cross-examined. - therefor inability to test the credibility and accuracy of the maker
33
s17 Hearsay
a hearsay statement is not admissible except in circumstance relating to the statement privide reasonable assurance the statement is reliable and the statement maker is unavailable as a witness
34
s 16(1) circumstances
- nature of statement - contents of statement - circumstance of the making if statement - veracity of the person -accuracy of the observation if the person
35
unavailable as a witness
- dead - outside NZ - unfit to be a witness(age, mental condition) - not compellable to give evidence - cant be located
36
criteria admissibility of hearsay
- reliability & - unavailability or undue exoense/delay
37
judicial notice
declares that it will find the facts exist
38
notice - hearsay
a notice of hearsay served on the other party, prior to hearing so they have sufficient time to respond
39
Hearsay Statement
S4 - a statement that (a) was made by a person other than a witness and (b)is offered in evidence at the proceeding ti prove the truth of its contents
40
character evidence
veracity- disposition to refrain from lying propensity - act certain way
41
propensity rule of evidence
probative value must outweigh the risk of an unfairly prejudicial effect
42
expert
a person who has specialised knowledge or skill based on training, study or experience
43
evidential burden of defence
balance of probabilities
44
eligible witness
lawfully able to give evidence on behalf of both prosecution and defence
45
compellable witness
a witness that can be required to give evidence against their will for both prosecution and defence
46
General proposition
all people are eligible and compellable to give evidence
47
s72 - judge
a peson acting as a judge is not eligible to give evidence juror and counsel also ineligible to give evidencw in a proceeding
48
Presumption of facts
Presumption of fact are simply logical inferences, and so are always rebuttable
49
section 84 - examination of witness
witness gives - evidence in cheif - witness may be cross examined by all parties -witbess may be re-examined
50
Oath/Affirmation 12+
a witness over the age of 12 must take an oath/affirmation
51
Oath/affirmation under 12
witness under 12 - be informed by the judge of the importance of telling the truth - after being given the information, make a promise to tell the truth
52
defence- evidence
defence is not obliged to call any evidence no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to statements or disclose a defence
53
Leading question definition
a question that directly or indirectly suggests a particular answer to the question
54
can leading questions be asked?
s89 general rule is that a leading question may not be asked during evidence in chief
55
exceptions to leading questions
- relates to introductory or undisputed matters - all parties consent - judge allows it 89(c)
56
why may judge allow leading questions?
-identification evidence - surrounding circumstance (to jog memory) - elicting evidence in chief of very young people
57
Refreshing memory in court
require leave from judge to consult a document made or adopted at the time the witnesses memory was fresh (memory fresh can be up to 6 weeks)
58
S35 Previous Consistents Statements
a previous statement of a witness that is consistent with the witness’s evidence is not admissible unless - responds to a challenge of witness veracity or accuracy - forms an integral part of events before the court - consists of a mere fact that a complaint has been made in a criminal case
59
Exceptions to consistent statemnt rule
- responds to a challenge of witness veracity or accuracy - forms an integral part of events before the court - consists of the mere fact that a complaint has been made in a criminal case
60
S85 Unacceptable questions
- improper -unfair -needlessly repetitive -misleading -expressed in a language that is too complicated for the witness
61
S125 Directions about childrens evidence
evidence given by children should be treated the same as evidence given by adults - judge not allowed to give warnings about absence of corrobaration - not allowed to tell jury to scrutinise
62
S49 Children Under 6 evidence
63
s73 compellabilty of defendant
a defendant is not compellable witness for the prosecution or the defence
64
judicial notice
declares that it will find facts exist and direct the jury to do so even though evidence has nit been established that the fact exists
65
Circumstantial evidence
evidence of circumstances that do not directly prove any fact in issue but which allow inference about the existence of the facts to be drawn
66
Purpose of evidence in chief
to elict testimony that supports the case of the party calling that witness
67
presumption of fact
are those that the mind naturally and logically draws from the given fact. they are simply logical inferences and are always rebuttable
68
propensity rule
evidence that shows a persons propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissons, events , or circumstance which a person is alleged to have been involved; but does not include an act or omission that is the elements of the offence or cause of action in the proceeding
69
Presumption of law
are inferences that have been expressley drawn by law from particular facts. may be conclusive or rebuttable
70
Hostile Witness
- if witness appears to lack veracity when giving evidence unfavourable to the party who called the witness - gives evidence that is inconsistent with a statement made in a manner that exhibits an intention to be unhelpful to the party who called the witness - refuses to answer questions or witholds evidence an application can be made to the judge to deem them a hostile witness
71
S37 veracity rules judg considerations
- lack of veracity under a legal obligation to tell the truth - previous inconsistent statements - bias on the part of the person - motive - convicted of 1 or more offence that indicate a propensity for dishonesty or a lack of veracity

DDP - Modules (8 decks)

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