Evidence

Question 1

Evidence

The fundamental principle in criminal law is the “presumption of innocence”, known as the … what ?

Answer 1

“Woolmington Principle”

Subject to statutory exceptions, Burden of Proof lies with prosecution in relation to all elements of an offence

Question 2

Evidence

Prosecution holds the burden of proof when proving a case. Defence sometimes have to put up some type of argument (ie: Self defence) to negate a story. This is known as what ?

Answer 2

“Evidential Burden” on the defence

Question 3

Evidence

Name three things where Defence holds the ‘burden of proof’ ?

Answer 3

• Insanity defence
• Specific statutory exceptions
• Public welfare regulatory offences

Question 4

Evidence

What was held in R v Wanhalla, defining “beyond reasonable doubt” ?

Answer 4

• Very high standard of proof
• Only met, if you are “sure the accused is guilty
• Not enough to say probably or very likely

Reasonable doubt:
“An honest and reasonable uncertainty about guilt, after careful and impartial consideration to all evidence

Question 5

Evidence

The ‘balance of probabilities’ simply means …?

Answer 5

It is more probable than not

Question 6

Evidence

Corroboration - What are the two types of offences that need to be supported by other evidence to support a conviction ?

Answer 6

• Perjury

- Treason

Question 7

Evidence

Corroboration - Is there a requirement for a Judge to give a general warning for uncorroborated evidence?

Answer 7

No, BUT - he can do if in his opinion;

• the evidence was unreliable
• hearsay evidence

**Prohibited to if child complainant … where warning would not have been given if it was an adult

Question 8

Evidence
Admissibility of Visual Identification Evidence

If formal procedure is followed by Police, or good reason for not following procedure, that evidence is admissible UNLESS … what ?

Answer 8

The Defendant proves on Balance of Probabilities that evidence is unreliable

Question 9

Evidence
Admissibility of Visual Identification Evidence

If formal procedure is NOT followed by Police, and there was NO GOOD reason for not following procedure, that evidence is inadmissible UNLESS … what ?

Answer 9

The Prosecution proves beyond reasonable doubt that circumstances in which ID was made produced reliable identification

Question 10

Evidence
Admissibility of Visual Identification Evidence

The identification procedure must be conducted by … ?

Answer 10

“Officers of an enforcement agency” … includes agencies other than Police

Question 11

Evidence
Admissibility of Visual Identification Evidence

The visual identification evidence procedure only applies to … who ?

Answer 11

People alleged to have committed an offence

Question 12

Evidence
Admissibility of Visual Identification Evidence

The combined effect of the procedure under 45(2) and (3) is intended to prevent what … ?

Answer 12

Dock identification

Question 13

Evidence
Admissibility of Visual Identification Evidence

The focus under the Act on visual identification evidence, is on whether or not … ?

Answer 13

A Formal Procedure was undertaken (or followed) … and the reliability of any witness

Question 14

Evidence
Admissibility of Visual Identification Evidence

A procedure which adheres to most of the requirements under s45(3) is more likely to discharge the burden, than one that falls far short … The Court in R v EDMONDS stated … what ?

Answer 14

Unlikely to be many instances where ID is made after fleeting glance of stranger, where high standard of s.45(2) could be met by Crown in absence of at least some aspects of formal procedure having been conducted

Question 15

Evidence
Admissibility of Visual Identification Evidence

Under Police Instructions, an identification parade should be conducted by a staff member of what level ? … AND

Can the OC Case be present during the proceedings ?

Answer 15

Level - Sergeant or Senior Sgt

OC case - Must NOT take part in the proceedings

Question 16

Evidence
Admissibility of Visual Identification Evidence

The guiding principle (in Ah Soon v R) for a Formal identification procedure is… What?

Answer 16

Whether the procedure will;

“Avoid any material risk of predisposing the witness to identify the defendant”

Question 17

Evidence
Admissibility of VOICE Identification Evidence

Section 46, Evidence Act 2006 sets out a general rule of inadmissibility … ?

Answer 17

Voice ID evidence offered by prosecution is inadmissible UNLESS;

Prosecution proves on balance of probabilities that circumstances in which ID was made, has produced reliable ID

Question 18

Evidence
Exclusion of Unreliable Statements - Section 28

A Judge must exclude the (unreliable) statement UNLESS … ?

Answer 18

He is satisfied on “Balance of Probabilities”, circumstances in which statement was made, not likely to adversely affect its reliability

Question 19

Evidence
Exclusion of Unreliable Statements - Section 28

Under Section 28(3), Judge does not have to exclude statement if it offered by Prosecution ONLY as evidence … in two circumstances … ?

Answer 19

To show:
- The Physical, Mental or Psychological condition of Defendant at time statement was made OR …

• Only as evidence of whether the statement was made

Question 20

Evidence
The Oppression Rule - Section 29

A Judge must exclude the statement UNLESS … ?

Answer 20

He is satisfied “Beyond Reasonable Doubt” that the statement was not influenced by oppression

Question 21

Evidence
The Oppression Rule - Section 29

Oppression in this Section means … ?

Answer 21

• oppressive, violent, inhuman

- degrading conduct or treatment towards defendant or other person … or threats of that kind

Question 22

Evidence
The Oppression Rule - Section 29

Is it relevant if the statement made by the Defendant is true … ?

Answer 22

No, it’s irrelevant

Question 23

Evidence
The Oppression Rule - Section 29

What matters may the judge take into account, when deciding BYD Whether the statement was influenced by oppression … ?

Answer 23

• Any pertinent physical, mental, psychological condition of Defendant
• Characteristics of defendant including mental, intellectual, physical disability
• Nature, manner and circumstances of questions
• Nature of any threat, promise, representation made to defendant or another person

Question 24

Evidence
The Oppression Rule - Section 29

From who’s perspective is oppression to be judged from (prosecutors or defendant’s) … ?

Answer 24

The Defendant’s

Question 25

Evidence
Improperly Obtained Evidence - Section 30

If the judge finds on the balance of probabilities evidence was improperly obtained, what else must he determine … ?

Answer 25

Whether or not the exclusion of evidence is proportionate to impropriety …

Then by means of balancing process gives appropriate weight to the impropriety AND takes account of need for credible justice system

Question 26

Evidence
Improperly Obtained Evidence - Section 30

Evidence is improperly obtained if it …?

Answer 26

• Breaches the New Zealand Bill of Rights
• Statement made by Defendant that would be inadmissible if offered in evidence by prosecutors
• Unfairly

Question 27

Evidence
Improperly Obtained Evidence - Section 30

What was held in R v Te Kira, in relation to …“Mere ‘but for’ causation is not sufficient“ … ?

Answer 27

What is both necessary and sufficient is that there is a “real and substantial” connection between the violation in the obtaining of evidence”

Courts generally discuss in terms of “inconsequentiality” or “triviality” in overall context of case.

Question 28

Evidence
Improperly Obtained Evidence - Section 30

The Court in “Chetty v R”, stated that the Judges Practice notes does not create rights … ?

Answer 28

BUT, it can be seen as setting standards … it sets how police must conduct themselves and requires a record be created