Evidence Flashcards
Define evidence
Evidence is the term for the whole body of material which in a court or tribunal may take into account in reaching their decision
Evidence may be in oral, written or visual form
What is admissible evidence?
If it is legally able to be received in court
Define relevance
If evidence has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding
S7(3) Evidence Act 2006
What are the facts in issue?
SA
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 the burden of proof
What are the exclusionary rules in relation to general evidence?
3 points
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it)
What is the weight of evidence?
Is the value in relation to the facts in issue. The value depends on factors such as:
- the extent to which, if accepted, it is directly relevant to or conclusive of those facts
- the extent to which it is supported or contradicted by other evidence produced
- the veracity of the witness
The weight is the degree of probative force that can be accorded to the evidence
Define offer evidence
Evidence must be elicited before it is “offered”, merely putting a proposition to a witness is not offering evidence, it becomes so when the witness accepts the proposition. Includes eliciting evidence by cross-examination of a witness called by another party
What are the three ways to give evidence?
- In the ordinary way - orally in the courtroom in the presence of a judge
- In an alternative way - in the courtroom but unable to see the defendant, outside the courtroom or by video recording made before the hearing or by audio-visual link
- In any other way provided for by the Evidence Act 2006 or any other relevant enactment
Define incriminate
To incriminate is to provide information that is reasonably likely to increase the likelihood of the prosecution of a person for a criminal offence
What is a proceeding?
This means a proceeding conducted by a court, and any application to a court connected with a proceeding
What is a statement?
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
What is a witness?
This is a person who gives evidence and is able to be cross-examined in a proceeding
Define a hearsay statement
A statement that was made by a person other than a witness and is offered in evidence in the proceeding to the truth of its contents
Define veracity
This is the disposition of a person to refrain from lying whether generally or in a proceeding
Define propensity
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
What is direct evidence?
Evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced
What is circumstantial evidence?
Evidence of circumstances that do not directly prove any fact in issue but allow for inferences about the existence of those facts to be drawn
Define an enforcement agency
Refers to the NZ Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment eg Fisheries, Customs, IRD etc
What is the Woolmington principle within the burden of proof?
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
What is the practical obligation on defence when it comes to the Woolmington principle?
It is simply a practical obligation to point to some evidence that suggests a reasonable doubt about conclusions one would otherwise draw from the prosecution case
Define the evidential burden for defence in relation to a live issue
Having an evidential burden means that a defence cannot be left to the jury or judge unless it has been made a live issue by the defence. It is not a burden of proof, and once its made a live issue the the prosecution must destroy the defence, because the burden of proof remains with the prosecution - the question always remains: has the prosecution proved its case
What are the three exceptions to Woolmingtons principle?
- Defence of insanity (S23(1) CA1961
- Express statutory exceptions by Parliament
- Public welfare regulatory offences which are offences that regulate everyday conduct which have a tendency to endanger the public or sections of the public. These are strict liability offences.
Define discharging the burden of proof
Where the legal burden is on the prosecution it must be discharged beyond reasonable doubt. Any element which the defence bears the burden of proving need only be proved on the balance of probabilities
What is beyond reasonable doubt?
R v Wanhalla
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
The starting point is the presumption of innocence. You must treat accused as innocent until the Crown has proved guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish their innocence
It is not enough for the Crown to persuade you that the accused is probably guilty or even that they are very likely guilty. On the other hand it is virtually impossible to prove anything to an absolute certainty
What is the balance of probabilities?
Where the defence is required to prove a particular element such as insanity on the balance of probabilities it must simply show that it is more probable than not
What is Section 6 of the Evidence Act 2006?
Six points - F.A.F.C.E.L
SA
It sets out the purpose of the act and help secure the just determination of proceedings by:
a) providing for facts to be established by the application of logical rules and
b) providing rules of evidence that recognise the importance of the rights affirmed by the NZ BOR Act 1990 and
c) promoting fairness to parties and witnesses and
d) protecting rights of confidentiality and other important public interests and
e) avoiding unjustifiable expense and delay and
f) enhancing access to the law of evidence
Define what facts prove the charge
SA
The facts must prove the elements of the charge and the evidence should be made up of facts that prove the charge. In each case the actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged
What is the facts in issue when it comes to criminal cases?
SA
The facts in issue are the facts which in law need to be proven to succeed with the case. They are usually those which are alleged by the charging document and denied by a plea of not guilty
What is the general rule when it comes to evidence?
All facts in issue and facts relevant to the issue must be proved by evidence
Exceptions are:
Where a judicial notice is taken
The facts are formally admitted
Define the judicial notice S128 and S129
The 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
S128 Notice of uncontroverted facts
(1) Facts are so known and accepted either generally or in the locality that they cannot be reasonably be questioned
(2) Facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned
S129 Admission of reliable published documents
(1) In matters of public history, literature, science or art admit as evidence any published documents that the judge considers to be reliable sources of information
S128 covers locality such as the date of an annual carnival even if not known by the wider national public
Define facts formally admitted
In a trial the counsel from either party can accept that some evidence is accepted or proven from the outset. Sections 9(2) and 9(3) EA 2006 provide that the defendant or prosecution may admit any fact and therefore dispense with proof of that fact
What is a presumption?
Where no direct evidence is offered or obtained disputed facts are sometimes inferred from other facts which are themselves proved or known. In such cases the inference is called a presumption.
Presumptions may be of law or fact
Define presumptions of law
Presumptions of law are inferences that have been expressly drawn by law from particular facts
Presumptions of law may be either conclusive or rebuttable
An irrebuttable presumption would be that a child under 10 can be convicted of an offence because it is a rule of a substance of the law rather than the procedure contained in the law. A rebuttable presumption would be that all defendants are innocent until proven guilty
Define presumption of fact
Presumptions of fact are those that the mind naturally and logically draws from given facts. For example one presumes that a person has guilty knowledge if they have possession of recently stolen goods.
Presumptions of fact are simply logical inferences and so are always rebuttable
Who decides on evidence admissibility and how?
What are the 3 points when deciding on admissibility?
Evidence can be admissible if it can be legally received by a court. No particular standard of proof attaches to decisions of admissibility of evidence unless a particular provision of the Evidence Act 2006 provides for it.
The judge decides on admissibility.
In R v Burrows the court held that the party wishing to bring the evidence has the burden of showing the evidence is admissible. Admissibility is essentially a question of law.
Deciding whether evidence is admissible comes down to its:
Relevance
Reliability
Unfairness
Define relevance?
Section 7 Evidence Act 2006
Section 7: Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible except
(a) inadmissible under this act or any other act
(b) excluded under this act or any other act
(2) Evidence that is not relevant is not admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
Includes direct and circumstantial evidence.
All irrelevant evidence will always be inadmissible and relevant facts are not always admissible. For facts to be received as evidence it must be relevant and admissible.
Once evidence is received the degree of probative force or “weight” to be given to the evidence is a question for the judge alone or for the jury.
Inadmissibility or exclusion will usually be due to a lack of reliability, fairness, public interest or a combination of these factors. Relevance is therefore a necessary, but not a sufficient condition of admissibility under the Evidence Act 2006
Is unreliability a ground for inadmissibility?
What are the two exclusions?
Unreliability is not a general ground for inadmissibility, the Act contains specific exclusions for it including rules relating to hearsay and identification evidence.
What are the two ways evidence can be excluded because of unfairness?
Evidence that is reliable may be excluded because of unfairness. It covers a variety of situations and is a matter of discretion for the trial judge. It arises in two ways:
- Results in some unfair prejudice in the proceeding
- Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair ie. unfairly obtained confession
What is S8 General Exclusions in relation to unfairness?
S8 General exclusions
(1) In any proceeding the judge must exclude evidence if its probative value is outweighed by the risk the the evidence will-
(a) have an unfairly prejudicial effect on the proceeding
(b) needlessly prolong the proceeding
(2) For the above the judge must take into account the right of the defendant to offer an effective defence
Once a judge decides that (1)(a) or (b) applies the requirement to exclude is mandatory
Define unfair prejudice
WIM
The risk of unfair prejudice will typically refer to the danger that a trier of fact will:
- give some piece of evidence more Weight than it deserves
- use evidence for an Illegitimate purpose.
- be Misled by evidence
S8 allows exclusion for evidence that is unfair for the proceeding as a whole by drawing jury members away from the real issues of the trial
What is the right for a defendant to offer an effective defence?
This reflects S25(e) (the right of criminal defendants to present a defence) and S25(a) (the right to a fair trial) of the Bill of Rights Act 1990
Define admission by agreement
S9(1) Evidence Act 2006 allows for the admission of evidence, even if not otherwise admissible, where the parties agree. In R v Hannigan the judge retains control of this process and may decline to admit the evidence even if all parties agree or not allow its admission in the form agreed by the parties
Define provisional admissibility and evidence on “voir dire”
S14 Evidence Act 2006 provides that where a question arises re the admissibility of evidence the judge may admit the evidence, subject to further evidence being offered later which establishes admissibility. If further evidence is unavailable then it is excluded.
Section 15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. This hearing is called a “voir dire” also referred to as preliminary facts
S15 applies to all witnesses and to evidence given in any type of hearing geld to determine the admissibility.
Evidence given at a voir dire will be admissible in the proceeding. It is admissible to demonstrate the inconsistency.
Define the limited use of evidence and use for multiple purposes
S7(3) Evidence Act 2006 allows evidence to prove anything that is of consequence to the determination of the proceeding.
Admissible evidence may be used in different ways and for different purposes. Not necessarily only for the purpose for which it has been admitted.
Hart v R confirmed this approach stating evidence is either admissible for all purposes or not admissible at all,
Sections that limit the use:
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 defendants pre-trial silence as evidence as guilt
The act allows or requires judges to warn juries against the reliance on some types of evidence for certain purposes such as S124 (warning about evidence that the defendant has lied)
What do the exclusive rules of evidence deal with?
Most of the laws of evidence concern the things that cannot be given in evidence
Veracity Propensity Hearsay Opinion Identification Improperly obtained evidence
S8 probative value versus prejudicial effect on the proceeding
Define the relationship between the veracity and propensity rules
Veracity - a disposition to refrain from lying
Propensity - a tendency to act in a particular way
The rules do not apply to evidence about a persons veracity if the veracity is an element of the offence for which the person is being tried (eg perjury)
They do not apply to bail or sentencing hearings, except when the evidence is covered by S44 (relates to sexual experience of the complainant with any other person other than the defendant, or their sexual reputation)
Define veracity rules S37
SA - 5 points judge considers when allowing veracity?
S37 Veracity rules
(1) A party may not offer evidence about a persons veracity unless the evidence is substantially helpful in assessing that persons veracity
(3) The judge may consider whether the evidence shows one or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth
(b) the person has been convicted of one or more offences that indicate a propensity for dishonesty
(c) any previous inconsistent statements
(d) bias on the part of the person
(e) a motive on the part of the person to be untruthful
(4) A person who calls a witness-
(a) may not offer evidence to challenge that witness’ veracity unless the judge determines the witness to be hostile but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness
(5) Veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding
- Veracity solely focuses on truthfulness
- Can’t challenge your own witness’ veracity unless declared hostile
Veracity
What is substantial helpfulness and what is the test?
In order to be admissible, veracity evidence must be substantially helpful in assessing a persons veracity. This is a higher threshold than relevance.
The test applies to both veracity evidence in evidence in chief and that elicited through cross-examination.
It is not a sufficient test in two instances:
- where the prosecution wish to offer evidence about a defendants veracity (S38) and
- where a defendant offers veracity evidence about a co-defendant (S39)
What is the evidence of a defendants veracity? S38
SA - 2 points where prosecution may offer evidence about a defendants veracity?
(1) The defendant may offer evidence of their own veracity
(2) The prosecution may offer evidence about a defendants veracity only if-
(a) the defendant has offered evidence about their own veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue
And
(b) the judge permits the prosecution to do so
The prosecution must show that the veracity is relevant
Will only be granted if the defendants veracity is in issue
The defendant has offered evidence about their veracity
The proposed evidence must meet the substantial helpfulness test
Must get permission from the judge
The judge will take into account (S38(3))
- The extent to which the defendant’s or prosecution witness’ veracity has been put in issue in the defendants evidence
- The time that has elapsed since any conviction
- Whether any evidence was elicited by the prosecution
Define the propensity rule S40
S40(1)(a) Propensity evidence means evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances
S40(1)(b) does not include evidence of an act or omission that is
(i) one of the elements of the offence of which they being tried
(ii) the cause of action in the proceeding in question
What is the general rule for propensity and what doesn’t it include?
The general position is that a party may offer propensity evidence about any person
It does not include evidence that is solely or mainly about veracity
Define propensity evidence about defendants S41
S41(1) incorporates the ability to offer good character evidence, disreputable conduct about him or neutral propensity (may for an alibi)
S42(2) provides that by offering evidence of his or her propensity to act in a good way, the defendant opens the door to rebutting evidence from the prosecution or another party (with the judges permission). In Wi v R it is unlikely that permission will be granted under S41(2) when the only propensity evidence offered by the defendant is evidence that he or she has no relevant convictions.
Rebuttal evidence can come through the questioning of any witness, including cross-examination of the defendant
The only way that the prosecution can offer propensity evidence about a defendant is if he or she offers propensity evidence about them self or S43 is satisfied
Propensity
When can the prosecution offer propensity evidence about a defendant and what must the judge consider (6)?
(1) Offered 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
(2) When assessing the probative value the judge must take into account the nature of the issue in dispute
(3) The judge may consider:
a) the frequency of the acts, omissions, events
b) the connection in time between acts, omissions
c) the extent of the similarity
d) the numbers of persons making allegations
e) whether collusion occurred for d)
f) the extent to which the acts, omissions, events or circumstances are unusual
(4) When assessing the prejudicial effect of evidence on the defendant the judge must consider:
a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant
b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
Propensity
Define the requirements for admission Rei v R
The evidence must:
a) constitute propensity evidence
b) have a probative value in relation to an issue in dispute
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
Propensity
Define the probative value and prejudicial effect
Mahomed v R
S43(1) focuses only on the risk of a prejudicial effect on the defendant
The test is concerned with illegitimate prejudice
Mahomed v R
The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have
The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant
