Evidence act (condensed) Flashcards
(316 cards)
1
Q
Evidence definition
A
The whole body of material which a court or tribunal may take into account in reaching their decision
2
Q
In what “ways” may evidence be given?
A
- The normal way
(Orally in court, Affidavit in court or Reading a written statement) - An alternative way
(Outside the court room (AVL), using a screen or a video recording made
before the court date) - Any other way
3
Q
How can this evidence be presented - in what form?
A
Orally, Written or in visual form
4
Q
Admissible evidence definition
A
Any evidence that can be LEGALLY received by the court
5
Q
Relevance definition
A
Evidence is relevant if it has a tendency to prove or disprove anything of consequence
6
Q
Facts in Issue definition
A
Facts that need to be proven to prove their case. E.g.
- Facts the prosecution must prove to establish the elements of the offence OR
- That the defendant must prove to form a defence
7
Q
Exclusionary rules definition
A
Rules that exclude evidence (usually due to reliability, relevance or that it would be unduly prejudicial to admit it)
8
Q
Weight of evidence definition
A
Weight: How much value evidence has
Weight of evidence: How much probative value it has been afforded
9
Q
What is weight of evidence dependant on?
A
- the extent to which it is relevant
- Other evidence that supports / contradicts it
- The veracity of the defendant
10
Q
Offering evidence definition
A
Evidence MUST be elicited before it is offered. Merely putting a proposition to the defendant is not considered an offer. It becomes so when it is accepted by the defendant
11
Q
Incriminate definition
A
Provide information that is reasonably likely to, or would increase the likelihood of, a person being charged with a criminal offence
12
Q
Proceeding definition
A
A proceeding in court or any other application to a court connected with a proceeding.
13
Q
Statement definition
A
A spoken or written assertion or non-verbal conduct intended by the maker to be an assertion
14
Q
Witness definition
A
A person that can give evidence and be available for cross-examination
15
Q
Veracity definition
A
A persons disposition to refrain from lying (whether generally or in a proceeding)
16
Q
Propensity definition
A
A persons propensity to act in a certain way or have a certain state of mind
17
Q
Direct evidence definition
A
This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced
18
Q
Enforcement agency
A
Generally refers to the NZP but also includes any other agency that enforces statute (e.g. Customs, IRD, Immigration etc)
19
Q
What does the Woolmington Principle establish?
A
That the burden of proof lies with the prosecution
20
Q
What are the limitations of the Woolmington Principle?
A
It is subject to a number of limitations.
JUST BECAUSE the burden of proof lies with the prosecution DOES not mean that the defence needs to put forward a case.
21
Q
What are the exceptions to the Woolmington principle?
A
The MAIN exception is insanity and statutory exceptions passed in parliament.
The woolmington does NOT apply to strict liability offences.
22
Q
In some cases, the defence will have (obligations in court) ..
A
- A practical obligation
- A reversed burden of proof
- Woolmington will not apply
23
Q
Practical obligation definition
A
A practical obligation is when the prosecution have proved their case and the defence must point to some evidence that points to some reasonable doubt. However, this is not an evidential burden on the defence.
24
Q
When does a “practical obligation” on the defence apply?
A
When the defendant wishes to say that they did not commit the act OR have the necessary intent BUT do not wish to offer a formal defence.
25
When does the defence have a burden of proof?
If the defendant wishes to put up a defence to a charge then a burden of proof does exist and they MUST prove that defence. It is no longer a practical obligation and it is up to the defendant to offer evidence that supports their defence.
26
What MUST the prosecution do once a defence is raised?
A defence cannot be left with the judge or jury after it has been made a “live issue” by the defence.
The prosecution must destroy the defence and prove beyond reasonable doubt that it occurred.
27
R v Wanhalla - Beyond reasonable doubt - what was held?
The jury MUST be told that beyond reasonable doubt is an honest and reasonable uncertainty left in your mind after careful and impartial consideration to all the evidence
28
R v Peato - Beyond reasonable doubt - what was held?
Peato supported Wanhalla and stated, that while not necessary it promotes consistency.
29
R v Wanhalla - Presumption of innocence - what was held?
Direction to be given that the starting point is the presumption of innocence and the accused MUST be treated as innocent until proven guilty by the prosectuion.
This means that the defence does not have to offer evidence, offer a defence or establish their innocence.
30
When is guilt proved?
When you are SURE of their guilty.
It is not enough to think that they will be “likely” guilty.
31
Reasonable doubt definition
An honest and reasonable uncertainty left in your mind after careful and impartial consideration to all the evidence.
32
Balance of probabilities definition
It must simply show that it is more likely than not.
33
Good evidence definition
Establishes what you are trying to prove (proves elements of the charge)
34
Circumstantial evidence definition
This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn
35
Can circumstantial evidence prove guilt?
It can be sufficient to prove guilt.
The more circumstantial evidence there is, the more likely, that when viewed as a whole, it can prove guilt.
36
What is the 'General rule of evidence'?
ALL facts in issue and facts relevant must be proved by evidence
37
What are the exceptions to the 'general rule of evidence'?
Where no evidence has been given because:
* Judicial notice has been given
* The facts have been formally admitted.
38
What does Section 6 set out?
It sets out the purpose of the act
39
Section 6 - Sets out the purpose of the act - what is the aim?
The aim of this section is to help secure a just determination of proceedings by:
* Providing for facts
* IMPORTANCE of the NZ BOR Act
* Fairness to parties and witnesses
* Protecting CONFIDENTIALITY and PUBLIC INTERESTS
* Avoiding UNJUSTIFIABLE expense or delay
* Enhancing access to the law of evidence.
40
What does the 'aim' in section 6 affect?
Decisions that are made about evidence you present.
41
What is judicial notice?
The court declares that they find the fact exists OR will direct the jury to do so.
42
Judicial notice - Under S128 the judge will..
Formally take notice of facts known / accepted
Take notice of facts by reference to sources when accuracy cannot be questioned
43
Judicial notice - Under S129 the judge will..
Admit documents for matters of public history, literature, science and art
44
Judicial notice - What does Section 129 codify?
This codifies common law exceptions to the hearsay rules that allow for admission of public histories, scientific works and maps to be admitted in cases of a public nature.
45
What does section 9 - Admitting fact - allow?
The defendant or prosecution to admit fact and dispense with proof of that fact
46
Formally admitted definition?
The counsel of either party can accept evidence as proven so it need not be discussed.
47
Presumption definition
Where no direct evidence is offered or attainable, disputed facts are often inferred from other facts that are proven or known.
Presumptions can be of law or of fact
48
What is a presumption of law?
Are inferences by law from fact and they can be conclusive or rebuttable.
Conclusive: A 10 y/o cannot be convicted
Rebuttable: A defendant is innocent until proven guilty
49
What is a presumption of fact?
Inferences that the mind naturally and logically draws from given facts.
They are rebuttable as they are merely inferences.
50
What is the standard of proof for admissibility?
There is no standard of proof for admissibility and it wouldn't be right to require one as there is no standard of proof for circumstantial evidence.
51
R v Burrows - What did it hold?
A party bringing evidence must show that it is admissible but there is no standard of proof as it is not required for circumstantial evidence. Whether or not evidence is admissible is a question of law.
52
Who has the decision as to admissibility?
It is a question of law so the courts / judge have the decision of admissibility
53
What principles do the courts draw from when deciding admissibility?
They have access to certain principles that draw from common law principles.
* Relevance
* Reliability
* Fairness
54
Section 7 - what is the title?
RELEVANT EVIDENCE IS ADMISSIBLE
55
What does Section 7 - relevant evidence is admissible - outline?
That all relevant evidence is admissible unless inadmissible under this act or any other act.
56
What does relevant evidence include?
Direct and circumstantial evidence
57
What does relevant evidence exclude?
Any extraneous material
58
When can facts be admitted?
When they are relevant AND admissible.
59
What happens when a judge decides a piece of evidence is relevant?
The party is entitled to admit it HOWEVER once it is received the degree of probative force / weight must be determined by the judge or jury
60
Section 8 - What is the title?
GENERAL EXCLUSION PROVISION
61
What does Section 8 refer to?
Primarily, to the exclusion of evidence that would unfairly prejudice a proceeding OR needlessly prolong it.
62
What does section 8 - the general exclusion provision - help to do?
Manage the length of the trial and manage the fairness.
63
What can you exclude evidence due to?
* Lack of reliability
* Fairness
* Public interest
64
Will unreliable evidence be deemed inadmissible?
Just because it is unreliable does not make it inadmissible.
It may SOMETIMES be excluded OR it will attract a judicial warning because of its unreliability.
65
When does exclusion of evidence due to unfairness arise?
* If evidence would result in unfair prejudice in the proceeding
* If the way it has been obtained would make any admission unfair
66
What is the Section 8 test?
This balances the probative value / weight of evidence against the risk that it will:
* Have an unfairly prejudicial effect
* Needlessly prolong the hearing
67
What if evidence meets the criteria set out under the Section 8 test?
If it meets this criteria and the value outweighs the risk then it CAN be admitted.
68
What does unfair prejudice refer to?
It refers to the DANGER that the trier of fact will:
* put too much weight on evidence,
* be misled by evidence or
* Use evidence for an illegitimate purpose
69
What must Section 8 - the general exclusion provision - take into account?
A defendants right to offer an effective defence
70
R v Gwaze - What was held?
S7 and S8 are rules of law and not matters of discretion.
71
Section 9 - What was the title?
Admission by agreement
72
Section 9 - Admission by agreement - Who must agree to this admission?
All parties must agree
73
Section 9 - Admission by agreement - What does it include?
Inadmissible evidence.
74
R v Hannigan - what was held?
Even if all parties agree to the admission of evidence, the judge can deny the request and override their decision.
75
Section 14 - What was the title?
PROVISIONAL ADMISSIBILITY
76
Section 14 - Provisional admissibility - What does this provide?
If admissibility is in question, the judge can admit it subject to further evidence proving admissibility.
77
Section 14 - Provisional admissibility - What if the evidence is not provided?
Then the provisionally accepted evidence MUST be excluded.
78
Section 15 - What is the title?
HEARING IN CHAMBERS
79
When is a 'hearing in chambers' admissible?
IF it is inconsistent with their testimony at another stage of the same proceeding.
80
Hart v R - What was confirmed?
confirmed that evidence is either admissible for all purposes or not at all
81
What is the exception to Hart v R - evidence is admissible for all purposes or not at all - ?
* Pre-trial statements
* Prosecution forbidden from relying on dependants evidence
* Fact finder forbidden from using silence as evidence of guilt
82
What does “character evidence” include?
Veracity and Propensity
83
When do veracity rules not apply?
When veracity is an element of the offence e.g. perjury
84
When do propensity rules not apply
In bail hearings or sentencing EXCEPT when covered in S44 in relation to sexual experience of the complainant OR reputation in sexual matters.
85
Can veracity be used in civil/criminal proceedings?
ONLY if evidence is substantially helpful in assessing their veracity.
This MUST comply with Sections 38 or 39.
86
What is "Substantially helpful" and what does it cover?
Must do more than simply “Have a tendency to prove or disprove”
This applies to both evidence in chief and cross examination
87
What may the judge consider when determining if veracity is “substantially helpful”?
* Lack of veracity when obligated to tell the truth
* That the person has been convicted of an offence relating to veracity
* Any previous inconsistent statement
* A bias on the part of the person
* A motive to be untruthful
88
What can't a party do? - Veracity evidence?
A party cannot challenge the veracity of a witness they have called unless that witness has been treated as hostile.
HOWEVER they can offer contradictory information.
89
What do veracity rules focus on?
Solely on truthfulness
90
What do veracity rules not do?
Attempt to control evidence about the accuracy of a persons statement.
91
Can witnesses be asked about 'prior convictions'?
Yes, but it must be substantially helpful.
92
R v K - What was held?
Someones reputation for veracity is potentially admissible BUT substantial helpfulness will only be met in exceptional cases.
93
When is substantial helpfulness for veracity NOT sufficient?
* Prosecution offers veracity against the defendant
* Defendant offers evidence about a co-defendant
94
When offering veracity evidence about a defendant - what are the four things that make it admissible?
* The prosecution MUST show that it is relevant
* The defendant offered the evidence about his/herself
* The evidence MUST meet the substantial helpfulness test
* Prosecution MUST get permission from the judge
95
What may be considered by the judge when considering veracity evidence about the defendant?
The judge MAY consider:
* The extent to which the defendants or witnesses evidence was put to issue by the defendant
* Time elapsed since the conviction
* Whether any veracity evidence given by the defendant was elicited by the prosecution.
96
Section 41 - 43 - What does it govern?
Propensity
97
What does propensity evidence NOT include:
1 of the elements of the offence OR
The cause of the proceeding
98
Who may offer propensity evidence?
A party may offer propensity evidence in BOTH criminal and civil proceedings about any person
99
What are the restrictions on propensity evidence?
* A defendant in a criminal hearing may be offered ONLY in accordance with Section 41, 42 or 43
* A complainant in a sexual case in relation to sexual experience may ONLY be offered in accordance with section 44
100
Is propensity governed by other rules?
Yes, it is governed by Section 8 - if it is not relevant then it is inadmissible.
101
Section 41 - What is the title?
PROPENSITY ABOUT DEFENDANTS
102
Section 41 - Propensity about defendants - What does this mean?
A defendant may offer propensity evidence about himself or herself
103
What can the prosecution do when the defendant offers propensity evidence about himself?
That the prosecution, with permission from the judge, can offer propensity evidence against the defendant.
This prevents the judge or just from forming the wrong impression.
104
What else can the defendant offer - propensity evidence?
* Disreputable conduct about himself / herself OR
* Neutral propensity - Displaying propensity that is neither good nor bad
105
When can propensity evidence be offered by the defendant?
Either while testifying or through witnesses
106
Wi v R - What was held?
If the only “propensity” that the defendant offers is that they have no previous convictions, rebuttal is unlikely to be approved by the judge.
107
Section 43 - What is the title?
PROPENSITY EVIDENCE OFFERED BY PROSECUTION ABOUT DEFENDANTS
108
When can the prosecution offer propensity evidence about the defendant?
This can only be offered when the evidence has probative value AND outweighs the risk that the evidence is unfairly prejudicial to the defendant.
109
What MUST the judge take into consideration when deciding whether prosecution may offer propensity evidence about the defendant?
* The NATURE of the dispute in issue
110
What MAY the judge take into consideration when deciding whether prosecution may offer propensity evidence about the defendant?
* The FREQUENCY with which acts/omissions/events/circumstances occurred
* The CONNECTION IN TIME between them
* The EXTENT of similarity
* The NUMBER of persons making the allegations
* Whether the allegation could be COLLUSION
* The extent to which the actions are UNUSUAL
111
What does the judges consideration when deciding whether prosecution may offer propensity evidence reflect?ct
This reflects that there MUST be some relevance to the information being provided.
112
What MUST be taken into consideration when determining prejudicial effect?
* Whether the evidence will turn the fact finder against the defendant prematurely
* Whether the fact finder will give DISPROPORTIONAL weight to the evidence.
113
What MUST evidence have to adhere to the prejudicial test?
* It must be propensity evidence
* It must have probative value
* It must have probative value that outweighs the risk of prejudice against the defendant
114
M v R et Alia - What was held?
The judge MUST
* Identify the relevance of the evidence
* Outline the competing positions AND
* Warn the jury against illegitimate reasoning processes
115
What is similar fact evidence?
Previous wrong doing by the defendant
116
When is similar fact evidence admissible?
Admissible ONLY if the probative value OUTWEIGHS the prejudice to the defendant
117
REI - What was held?
the probative value will depend HEAVILY on the elements and the charges. It MUST be specific enough to allow evaluation.
118
Do previous wrongdoings have to relate to convictions?
Previous wrongdoings do not have to be submitted by CONVICTIONS, however, the lack of a conviction may have an affect on the probative value of the information.
119
Hearsay statement definition
A hearsay statement is made by someone other than the witness and given as proof of the truth of its contents.
120
Is hearsay admissible?
Hearsay is INADMISSIBLE unless it is provided for in this act or any other enactment. The reason for its inadmissibility is that, as a general rule, you cannot test the reliability and accuracy of the statement.
121
Are out of court statements hearsay ?
Not HEARSAY, as the maker of the statement can be cross-examined in court.
122
If a hearsay statement is made for some other purpose, Is it hearsay?
it is NOT a hearsay statement and does not need to meet the same admissibility test.
123
Section 17 - what is the title and what does it state?
GENERAL EXCLUSION OF HEARSAY
A hearsay statement is generally inadmissible unless provided for in this act
124
A hearsay statement will be admissible if:
* The circumstances relating to it provides a reasonable assurance that it is reliable AND
* The maker of the statement is available as a witness OR
* The judge considers that undue expense / delay would be caused by requiring them as a witness.
125
What if the maker of a hearsay statement is unable to be called?
Then the inadmissibility of hearsay lies in the lack of reliability of the information.
126
What does the hearsay rule acknowledge?
It acknowledges that the jury cannot fully evaluate the accuracy of the statement without being able to see the demeanour of the maker AND there is a danger that the witness will misinterpret the information they were given.
127
What is the reason for the hearsay admissibility rule?
The REASON for this rule is that it acknowledges the danger that undue weight will be put on evidence that cannot be adequately tested.
128
Reasonable assurance (of reliability) definition
Reasonable enough for the fact finder to consider it and draw their own conclusions
129
When considering whether hearsay is admissible, the following CIRCUMSTANCES are to be considered:
* The NATURE of the statement
* The CONTENTS of the statement
* The CIRCUMSTANCES that relate to its making
* Any circumstances relating to VERACITY
* Any circumstances that relate to the ACCURACY
130
What circumstances in relation to hearsay statements CAN include:
* Whether it was written or oral
* Whether it was signed
* Whether it was witnessed first hand
* What the physical environment was
* How long since the event in question
* The relationship between the witness and the maker of the statement
131
R v Gwaze - Hearsay statements - what was held?
This consideration into circumstances must include the nature and the contents of the statement.
132
When is a witness not available?
If they are:
* Dead
* Out side NZ
* Cannot be identified or found
* Can not be compelled
133
When can a witness not be called?
* If they are the defendant
* The sovereign
134
SECTION 19 - TITLE?
ADMISSIBILITY OF HEARSAY ON BUSINESS RECORDS
135
Hearsay business records are admissible if?
* the person who submitted them is unavailable
* The judge considers no useful purpose from requiring them to be called as a witness as the person cannot be expected to recall the information they are supposed to be a witness for
* Undue expense / delay would be caused if they were required to be a witness
136
Business Record definition
A document that is made:
* To comply with a duty / in the course of business
* From info supplied directly/indirectly by a person who had personal knowledge of the matters
137
What does a business record include?
A statement made to a Police Officer that is written down in a notebook or job sheet
138
Does a business record have to be reliable?
A business record DOES NOT have to be reasonably reliable HOWEVER this may affect the weight that is afforded to the evidence.
139
Section 22 - Title?
Notice of hearsay in a proceeding
140
No hearsay can be admitted to a proceeding unless..
The party has:
* Met the requirements
* The other party has waive the requirements OR
* The judge dispenses with the requirements
141
When MUST a notice of hearsay be provided to the other parties?
In SUFFICIENT time before the hearing
142
What MUST a notice of hearsay include?
* The parties intention to offer hearsay evidence
* The name of the maker
* If made orally, the contents of the evidence
* If S18 is relied on, the grounds for the reasonable reassurance that it is reliable.
* If S19 is relied on, why it is a business record
* If the witness is unavailable - why?
* If undue expense / delay - why?
* If it is a written document - a copy of the document must be provided to the other party
143
When can a judge "do away" with the hearsay notice requirement?
IF:
* No party is prejudiced by the failure to provide notice OR
* Compliance was not reasonably practicable
* The interests of justice so require
144
Section 23 - What is the title?
Opinion evidence
145
What is a statement of an opinion?
based on opinions beliefs or inferences where it should be based on the FACTS. These are not perceptions but inferences drawn from perceptions
146
Is opinion evidence admissible?
is not admissible unless it is in compliance with Section 24 and 25
147
Why is opinion evidence excluded?
* Bare opinion offers little probative weight
* It draws unnecessary conclusions from facts which can confuse the tribunal and prolong the trial.
* It might be based on other evidence which would be otherwise inadmissible.
148
What is the exceptions to opinion evidence being excluded?
A witness may state an opinion that is NECESSARY for them to communicate he fact to the fact finder to understand what they saw, heard or perceived.
This can include things like speed, identity, emotional state, weather or age etc.
149
Section 24 - What is the title?
General Admissibility of opinion evidence?
150
What is the criteria for opinion evidence to be admitted?
Two criteria for admissibility
* Opinion must be the ONLY way to communicate AND
* The witness MUST ONLY state what they PERSONALLY perceived.
151
Section 25 - What is the title?
ADMISSIBILITY OF EXPERT OPINION EVIDENCE
152
What may Expert evidence consist of?
may consist of fact, opinion or a mixture of the two
153
What MUST expert evidence be?
* That of an expert
* Comprise ‘expert evidence’
* Offer substantial help to the fact finder in understanding
154
Who is considered an expert?
a person who has specialised knowledge or skill based on training study or experience. This MUST be demonstrated to the court that he / she has the requisite qualification to be considered “an expert”.
155
Who determines if an expert is properly qualified?
The judge will determine if the expert is properly qualified to testify.
156
B v R - What was held (expert evidence)?
Necessitates consideration of relevance, reliability and value of the expert evidence
157
R v Turner - What was held (expert evidence)
Before the courts can assess the value of opinion, it must know the facts from which it is based.
158
What must there be for opinion evidence to be admissible?
There must be a factual basis for opinion evidence otherwise the evidence will carry little weight and therefore not relevant. If they are not proven and therefore not relevant, they will be inadmissible.
159
If an expert does not have the correct qualification what must they do?
Express that they cannot offer an opinion on a topic because they lack the qualification.
160
What can an expert base their evidence on?
Material information and other peoples facts and findings.
161
Can assumed facts be used for expert evidence?
They can be used but they must not be relayed directly to the court. Instead, they must be used to explain the conclusions that were reached.
162
Do facts need to be proven during expert evidence?
Facts need to be proven or the expert needs to state that they WILL be proven. Either:
* The expert needs to state the facts that the opinions are based on OR
* State that they will be proven
163
Can a witness offer state of mind evidence?
a witness can offer a statement of his / her state of mind to establish the factual basis for the expert opinion.
164
When can state of mind evidence be offered?
By a person where sanity is the issue.
165
What is excluded as state of mind evidence?
This EXCLUDES statements made by others or where a mental disorder falls short of insanity
166
R v Hutton - What are the 8 principles of expert evidence?
* QUALIFICATIONS must be stated
* Facts, matters and information on which OPINION was formed must be stated
* REASON for the opinion must be stated
* Literature / material used or relied on MUST be referred to
* MUST NOT give evidence outside expertise
* If evidence is incomplete w/out a qualification - state that qualification
* ASSIST the court IMPARTIALLY
* DOES NOT advocate for either party
167
When must expert evidence be disclosed to other parties?
At least 14 days prior
168
What is a witness?
Someone who is:
Eligible: If they are lawfully able to give evidence on behalf of the prosecution OR defence
Compellable: If they can be REQUIRED to give evidence against their will
In a criminal proceeding, ANY person is eligible to give evidence and a person who is eligible is compellable.
169
What does the Evidence Act eliminate in terms of eligibility to give evidence?
* Objections due to age or mental disability
* Removes the ‘non-compellability’ for the spouse of the defendant
170
Who MAY be excluded from giving evidence?
People who are UNABLE to give a rational and coherent testimony MAY be excluded as irrelevant OR if they are under 16 due to “age or physical condition”.
171
When may a witness be excused?
A witness may be excused for “just cause” OR excused from answering certain questions if under privilege.
172
Who is not eligible to give evidence?
Judges, jurors and the counsel are not eligible to give evidence.
173
When can jurors give evidence?
Jurors can be given the JUDGES permission to give evidence but will then be discharged from the jury and it would run with 11 jurors.
174
Who is not compellable to give evidence?
* A defendant in a criminal proceeding
* An associated defendant UNLESS
They are tried separately
The proceeding against them is determined
Sentencing has been completed
* The sovereign
* The governor general
* Sovereign / heads of states of other countries
* Bank officers (if not a party in the prosecution if the contents can be included in “hearsay for business records”.
175
What is an associated defendant?
* A defendant in a prosecution that was initiated from the same event as the defendant
* A prosecution that relates to OR is connected with the offence that the defendant is being tried
176
What does "Associated defendants" include?
not just co-defendants but people that are charged with connected offending.
177
What is privilege?
The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
178
How can privilege arise?
From:
* CONTENTS of evidence or
* CLASS of evidence or
* Due to a particular RELATIONSHIP
179
Relationship privilege includes:
* S54 - Communication with legal advisors
* S55 - Solicitors of trust accounts
* S56 - Preparation materials for proceedings
* S57 - Settlement negotiations
* S58 - Communication with ministers of religion
* S59 - Information obtained by medical practitioners / clinical psychologists
180
What information can a person with privilege refuse to disclose?
They have the right to refuse to disclose ANY communication, information or opinion AND
REQUIRE it not to be disclosed by a person to whom it was given or person who came into the possession of it.
181
OTHER PRIVILEGES:
* S60 - Privilege against self incrimination
* S64 - Informer priilege
182
What must be confirmed when a CLAIM OF PRIVILEGE is made?
Confirm whether the material in question is within the scope of the privilege claimed.
183
Section 52 - what is the title?
Waiving privilege
184
What does a waiver to privilege end?
The privilege holders rights over the material BUT they still have the right to require that the material not be disclosed in the proceeding.
This reflects that someone OTHER than the privilege holder wants to prevent privileged material being disclosed.
185
Who can waive privilege?
Can ONLY be done by someone who is entitled to rely on it and it can be done at any time.
186
R v Derby - What was held (privilege)?
Privilege is a FUNDAMENTAL condition on which the administration of justice as a whole rests.
187
Section 54 - What is the title?
Legal privilege
188
When can legal privilege be claimed?
* Communication INTENDED to be confidential
* Communication to OBTAIN or GIVE legal services
* A person SEEKING or RECEIVING legal services
189
When is legal privilege voided?
If it was made for a dishonest purpose OR to enable anyone to commit or plan to commit an offence.
190
Does information being overheard negate privilege?
Not necessarily
191
B v Auckland District Law Society - What was held (legal privilege)?
Legal privilege is NOT to be balanced against public interest as a lawyer MUST be able to give absolute and unqualified assurance that what they reveal will NOT be disclosed.
192
Section 54 - What is the title?
Prepatory material for proceedings
193
What does "prepatory material for proceedings" apply to?
* Communication OR Information made, received, compiled or prepared for the primary purpose of preparing.
* If a person is Contemplating becoming a party to
* Communications with an Authorised representative of the privilege holder
* Documents that by themselves are not privileged but become so when compiled.
194
"Communications with an authorised representative" - Prepatory material - Can be in respect of:
* A communication between the party and any other person
* Between the parties legal advisor and another
* Information compiled/prepared by legal advisors
* Information compiled/prepared at the request of the legal advisor.
195
Section 58 - What is the title?
COMMUNICATION WITH MINISTERS OF RELIGION
196
What does religious privilege focus on ?
Advice, benefit or comfort of a spiritual nature
197
What does religious privilege not include?
Communities that do not depend on the belief in some god, Divine force or other spiritual basis for life
198
When does a person have privilege for communication with ministers?
* If the communication was made in confidence AND
* Made for the purpose of the person obtaining or receiving religious or spiritual advice, benefit or comfort
199
Who is a "minister of religion"?
A person that has STATUS within a church or other religious community that calls for that person to received confidential communications and to respond with religious or spiritual advice, benefit or comfort.
And includes a Kaumatua in community groups
200
What are the conditions that have to be met for privilege with ministers of religion communication to qualify?
* Communications MUST be made in confidence and in a persons CAPACITY as a minister
* The person must be at least PARTIALLY compelled by their religion
* They must seek out the minister for spiritual communication
* MUST be aiming to receive spiritual advice, benefit OR comfort
* MUST occur personally with the minister (not through someone else)
201
When may privilege in respect of communication with ministers of religion be disallowed?
This must also be DISALLOWED by a judge if it is made for a dishonest purpose or to aid / enable the commission of an offence.
202
Section 59 - what is the title?
INFORMATION OBTAINED BY MEDICAL PRACTITIONERS AND CLINICAL PSYCHOLOGISTS
203
Who does - Information obtained by medical practitioners and clinical psychologists - apply to?
* A person who consults with / is examined by a medical practitioner or clinical psychologist FOR:
* Drug dependancy or
* Another condition / behaviour that may manifest in criminal conduct
204
What does - Information obtained by medical practitioners and clinical psychologists - include?
A person acting in a professional capacity on behalf of a medical practitioner
205
When does a person have PRIVILEGE under "Information obtained by medical practitioners and clinical psychologists"?
When:
* Any communication is necessary to enable them to examine, treat or care for the person
* When information is obtained by consulting or examining
* Information consisting of a prescription or notes of a prescription
206
What is drug dependancy?
* A state of periodic or chronic intoxication by repeated consumption of a controlled drug
* Involves a COMPULSIVE desire to continue consumption of the drug
207
What does privilege for medical practitioners / clinical psychologists allow?
This ALLOWS drug addicts and people with mental disorders to obtain assistance and communicate candidly with those from whom they seek help
208
When will communication with medical practitioners / clinical psychologists privilege not apply?
* If the communication is ORDERED by a judge
* When statements / information is obtained for conditions that result FROM unlawful conduct OR are the product of criminal behaviour.
209
Section 60 - Title?
SELF INCRIMINATION
210
What is self incrimination?
Information that could reasonably lead to OR increase the likelihood of, the prosecution of that person of a criminal offence
211
Who does "self incrimination" apply to?
If a person is:
* Required to provide specific information
* in the course of a proceeding OR
* By a person exercising a statutory power or duty OR
* A police officer in the course of an investigation into a criminal offence AND
* The information would likely to incriminate the person under NZ law
212
What does it mean if they meet the criteria set out for self incrimination?
then they have privilege and are therefore not required to give evidence and CANNOT be charged for failing to do so.
213
When does self incrimination NOT apply?
* On behalf of a body corporate
* On behalf of any person other than the person required to provide the information
* By a defendant in a criminal matter for an offence they are being tried
* Where there is NO compulsion to produce information
214
Can an individual from a body corporate apply for privilege?
While the self-incrimination provision does not apply to the body corporate itself, employees of the body corporate can claim privilege on their own behalf when PERSONALLY liable to self incriminate.
215
When can privilege for self-incrimination not be asserted?
It cannot be asserted when giving evidence about the matter for which they are being tried. If they choose to testify then this would ONLY apply ti the risk of conviction for a DIFFERENT offence.
216
Section 64 - What is the title?
PRIVILEGE FOR INFORMERS
217
Who is an informer?
Someone who has supplied, gratuitously or for reward, information to an enforcement agency (or representative) concerning possible or actual commission of an offence in circumstances where they have REASONABLE EXPECTATION that their identity will not be disclosed.
218
What does an informer include?
A Police Officer working under cover
219
When does informer privilege not apply?
When the person is called as a witness by the prosecution
220
When MUST the informer privilege be disallowed?
Where there is a suggestion that it was given for a dishonest purpose OR to aid / plan the commission of an offence
221
When MAY the informer privilege be disallowed?
When the judge is of the opinion that it is necessary for the defendant to establish a defence.
222
What is covered in Sections 68 - 70?
Judicial discretion to protect confidetniality
223
Section 68 - What is the title?
Journalists promise not to disclose informants
224
What is covered by a journalists promise not to disclose informants?
The journalist NOR his employer is compellable to provide any document or answer any questions that would disclose their identification.
225
When can a "journalists promise" be removed from court?
A HIGH COURT judge can order that this protection not apply if he/she is satisfied that the public interest outweighs:
* Any likely adverse reactions on the informant AND
* The public interest in the communication of facts AND the ability of the news media to access facts
226
Is a journalists promise considered a privilege?
No - A journalist can disclose the identification of the source if they wish to.
227
Section 69 - What is the title?
Overriding discretion as to confidential information
228
What does "overriding discretion to confidential information" allow the judge to do
Prevent disclosure of confidential information after weighing up various factors to determine if public interest justifies protection of material.
AND
To prevent disclosure even when the party does not wish to preserve the confidence.
229
What confidential information can be excluded by a judge?
ANY confidential communication or information that would OR might reveal a confidential source of information
230
What does the "overriding discretion as to confidential information" Protect public interest in?
* Preventing harm to a person or
* Preventing harm to a particular relationship in the course of which this communication was made or
* Preventing harm to any relationships similar to above or
* Maintaining activities that contribute or rely on the free flow of information
231
If excluding confidential information, what MUST the judge have regard to?
* The likely EXTENT of the harm that may result
* The nature of the communication / information and its importance
* The nature of the proceeding
* The availability of the material
* The availability of preventing its release
* The sensitivities of the evidence
* Societies interest in protecting privacy
232
Section 76 - What is the title?
Confidentiality of jury deliberations
233
What is covered in confidentiality of jury deliberations?
Everything around what was said and done during the time that the jury was performing its fact-finding function is protected.
234
What does confidentiality of jury deliberations promote?
Finality of verdicts and permits unencumbered discussions during deliberations
235
What can be disclosed under confidentiality of jury deliberations ?
Evidence that did not form part of the deliberations
* E.g. Juror competence OR knowledge gained by, or conduct, that may disqualify a juror
236
What MAY be disclosed under confidentiality of jury deliberations ?
When the JUDGE is satisfied that there is exceptional circumstances and a sufficiently compelling reason to allow the evidence
237
What can be weighed up when the judge is deciding what can be disclosed under confidentiality of jury deliberations ?
They CAN weigh up:
* The public interest in protecting the confidentiality and
* The public interest in ensuring that justice is done
238
Section 121 - What is the title?
Corroboration
239
What is corroboration?
Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant
240
Does evidence have to be corroborated?
Evidence from which the prosecution lies DOES NOT have to be corroborated
EXCEPT for offences of:
* Perjury
* False oaths
* False statements / declarations
* Treason
241
Is one witness statement sufficient to prove a case?
ONE witness statement is sufficient to prove a case IF the court is satisfied that it is reliable and accurate and provides proof to standard.
This does NOT mean that the court WILL act on it. It just means that it CAN.
242
Can uncorroborated evidence attract a judicial warning?
If the judge believes that the evidence is unreliable then they MAY warn the jury of the need for a caution.
243
What is prohibited under Section 125?
This prohibits a warning in cases involving a child complainants where it WOULD NOT attract a warning if they were an adult.
244
What do the conduct of criminal trials in NZ follow?
The adversarial and accusatorial system of justice.
245
A judge presiding over a jury trial must:
* Decide all questions regarding admissibility
* Explain and enforce the general principles of law
* Instruct the jury on the rule of law
246
What are the ESSENTIAL features of the adversarial or accusatorial system of justice?
* FACTS of the case
* Each party chooses who to call, in which order and what questions to ask them
* Each party can cross-examine other parties witnesses
* The judges FUNCTION is to ensure evidence is produced according to rules (e.g. on admissibility)
* Neither the Judge NOR the jury can go beyond the evidence provided (seek their own witnesses etc)
* The judge can only ask questions when required by JUSTICE
* The defendant does NOT have to give evidence / assist the prosecution
* Facts may be JUDICIALLY noticed
247
What can a judge require (in regard to witnesses) ?
Prosecution to call a NEW witness or RECALL a witness.
However this doesn’t happen very often.
248
What must an adult (12+) witness do prior to giving evidence?
Take an OATH or AFFIRMATION before giving evidence
249
What must a child (under 12) witness do prior to giving evidence?
* Be informed by the judge the importance of telling the truth and not telling lies
* Make a promise to tell the truth’
250
Can an adult (12+) witness give evidence WITHOUT giving an oath?
They can, with the judges permission, in cases of adult witnesses with an intellectual disability or the inability to promise.
They MUST be advised the same as a child and will then be treated as though an oath was given.
251
SEQUENCE OF JURY TRIAL
* After empanelling - the judge commences the trial
* The crown makes opening address
* Case for crown presented
* The defence opens and addresses the jury
* Defence witnesses are called
* Crown concludes - closing address
* The defence concludes - closing address
* The judge sums up
* The jury retires
252
OPENING INSTRUCTIONS COVER
* The role of the jury
* The mechanics of jury service
* The need to keep an open mind
* The burden and standard of proof
253
PROSECUTION/DEFENCE OPENING ADDRESS
* Provide a detailed explanation of the charge
* Reiterate the burden/standard of proof
* Summarise the case against the defendant and the evidence it proposes.
254
PROSECUTION/DEFENCE - PRESENTATION OF CASE
* Each Witness is called and questioned
* The other party has the opportunity to cross-examine
* If required - prosecution can re-question the witness
* The judge may ask a question if required.
255
Can the sequence of a jury trial differ?
Yes, it is becoming more and more common. Specifically common for the defence to give a brief opening after the prosecutions opening so that the jury get a better understanding of the case about to be presented.
256
What are the four categories of offences?
CAT 1 and 2 - Not punishable by imprisonment OR by less than two years
CAT 3 - JAT with the OPTION of electing jury. More than two years imprisonment
CAT 4 - Limited list of offences under Schedule 1. Tried by the HIGH COURT unless a JAT is ordered.
257
What is a "view"?
An inspection of a place or thing that is not in the court room. E.G a scene or building where offending took place.
258
Is a view taken as evidence?
Once conducted, it is accepted as though it were given in evidence.
259
Who decides whether a ‘view’ takes place?
The judge
260
Who is entitled to go to a view?
Any party and their lawyers
261
What is an alternative to a ‘view’?
Reconstructions and demonstrations can be used.
262
What are the restrictions on reconstructions and demonstrations?
The probative value of the evidence has to outweigh the risk of unfair prejudice on the proceeding.
263
Section 32 - What is the title?
PRESERVES RIGHT TO SILENCE AND THAT NO GUILT CAN BE INFERRED
264
What MUST the judge to do preserve the right to silence etc?
* Emphasise that the burden of proof remains with the prosecution AND
* Must not give / leave the jury with the impression that if innocent, he would have testified.
265
What is evidence in chief?
Evidence in chief is used to ELICIT testimony that supports the case of the party calling the evidence.
Evidence in chief is GENERALLY given orally by a witness in court after giving an OATH or AFFIRMATION - can extend to providing this evidence by Videolink.
266
What is the goal of evidence in chief?
To draw the witnesses own recollections and allow the trier to judge the quality of the testimony.
267
Section 89 - What is the title?
Leading questions allowed
268
What is a leading question?
A DIRECT or INDIRECT question that suggests a certain answer, E.g. a yes / no question.
What is considered to be “Leading” will depend on the facts in issue and what is being asked.
269
What is not included as a "leading question"?
Assumed facts or disputed facts about which the witness has given no evidence.
It will likely, however, be disallowed as an UNACCEPTABLE question
270
Why are leading questions prohibited?
There is a belief that they will produce UNRELIABLE testimony because:
* there is a natural tendency to say yes when they are put to you
* They can elicit answers that you WISH to receive and reduce the genuine testimony
* Could result in the manipulation OR construction of evidence through COLLUSION
271
When are leading questions allowed?
Allowed when:
* The question relates to introductory or disputed matters
* The question is put with consent of all parties
* The judge in exercise of discretion may allow it
272
When May the judge allow leading questions?
* To direct the witnesses attention to the subject of its evidence
* In respect of questions about SURROUNDING circumstances
* To elicit evidence in chief from young people, people who have difficulty speaking English and people of limited intelligence
* Where the witness has been declared hostile
273
Why may a judge limited leading questions?
in the interests of justice - e.g. to prevent the defendants from running a coordinated defence.
274
Section 90 - What is the title
MAY CONSULT A DOCUMENT TO REFRESH MEMORY
275
What conditions MUST be satisfied to allow a witness to refresh their memory?
* Leave of the judge must be obtained
* All parties must be shown the document
* The document MUST have been made or adopted at a time when their memory was fresh.
276
CAMERON v R - Fresh memory - What was held?
Has a non-exhaustive list to determine what is defined as “fresh memory”
This includes:
* Time elapsed
* Significance of the event
277
RONGONUI v R - Fresh memory - what was held?
A statement made 6 weeks after could still be considered to be made or adopted when memory was fresh.
278
Witnesses may refresh their memory out of court by...
* Referencing statements, briefs of evidence or a deposition statement or
* Check their recollection with the officer who interviewed them
279
What is the GENERAL rule around witnesses?
* A party cannot examine a witness with LEADING questions and
* They are not (generally) able to challenge the veracity of their own witness through cross-examination
280
What is a hostile witness?
A witness that:
* Shows a lack of veracity when giving unfavourable evidence to the party that called them about something they are SUPPOSED to have knowledge
* Gives evidence that is INCONSISTENT with a statement made by them in a manner that shows they intend to be unhelpful to the party that called them
* Refuses to answer questions or deliberately withholds evidence
281
When is a witness declared hostile?
If a witness displays ACTIVE HOSTILITY toward the party that called him / her.
Leave from the judge can be sought to declare them HOSTILE.
282
What questions can be asked of a ‘hostile witness’?
If approved, they can be asked questions that amount to cross examination to the extent that they consider necessary. This CAN include:
* Asking leading questions
* Asking questions as to prior inconsistent statements
283
R v VAGAIA - Hostile witnesses - What was held?
There is NO rule restricting a party from calling a witness they know to be hostile towards them.
284
What is an unfavourable witness?
An unfavourable witness is a witness who simply fails to come up to brief but are not necessarily hostile.
Just because they give evidence that is adverse to a party, suffers loss of memory or provides evidence inconsistent with their statement does not BY ITSELF justify declaring them to be hostile.
285
What is the purpose of cross examination?
* To elicit information supporting the case of the party conducting the cross examination
* To challenge the accuracy of the statement
286
Who has a right to cross-examination?
ALL PARTIES have the right to cross-examination.
If there are MULTIPLE defendants they ALL have the right to cross examination of crown witnesses AND witnesses of co-defendants.
287
What is cross-examination subject to?
* S92 - Cross-examination duties
* S95 - Limits on cross-examination by parties in person
* S85 - Prohibition on unnacceptable questions
288
If you wish to introduce evidence to contradict a witness, what MUST you do?
Put that evidence to the witness during cross-examination so he/she has the opportunity to explain it.
289
If you fail to put contradictory evidence to a witness during cross-examination, what is the consequence?
IF you do not meet this, then little to no weight can be afforded the contradictory material OR the opposing party may be granted leave to recall their witness for the purpose of rebuttal.
290
What does Section 85 - Judges discretion over questions - give the judge?
Wide discretion to control the nature of the questions and the manner in which they are put.
291
What happens if an unacceptable question is asked?
then the judge MAY disallow it OR direct a witness that they are not obliged to answer.
292
When does a judges discretion over questions apply?
All stages of questioning - typically used during cross-examination.
293
Section 96 - What is the title?
PREVIOUS INCONSISTENT STATEMENTS
294
Why are previous consistent statements normally inadmissible?
These are generally inadmissible because repetition does not increase the TRUTHFULNESS but will give greater impact and introduces the danger that the judge / jury will put more weight on it than it is worth.
295
When are previous consistent statements admissible?
When:
* It responds to a challenge about the witnesses accuracy or veracity OR
* Forms an integral part of the events OR
* Consists of mere fact that a complainant has been made in a criminal case.
296
What is the GENERAL rule of previous consistent statements?
That a witness cannot give evidence about statements made BEFORE TRIAL that are consistent with evidence given AT TRIAL - Unless exceptions are met.
297
How many ‘previous consistent statements’ will be admitted by the judge?
As many as NECESSARY to respond to the challenge of accuracy or veracity.
298
UNDER S96, When a witness is cross-examined over a previous statement what must happen?
What applies:
* A witness may be cross-examined about a previous statement WITHOUT being shown the statement or having its contents disclosed.
* The cross-examiner MUST ID the time, place and other circumstance of the making of the statement
* If a witness denies its making the cross examiner may prove the statement.
299
What are the LIMITATIONS of re-examination?
You can only re-examine for the purposes of clarifying or qualifying any issue raised during cross-examination BUT must NOT be questioned on any other matter UNLESS permission is granted by the judge.
300
IF able to re-examine a witness, what MUST be allowed to happen?
The other parties must be allowed to cross-examine on the new evidence and the judge may allow further RE-EXAMINATION on matters that arise.
301
Can rebuttal evidence be admitted after the conclusion of the case?
A party can introduce such evidence at the conclusion of their own case to rebut something arising from the trial IF they have sought and been granted leave of the court.
302
WHEN will rebuttal evidence at the conclusion of a case be granted?
If the evidence:
* Relates to a purely formal matter
* Relates to a matter arising out of the conduct of defence (that could not have been foreseen)
* Was not available OR admissible before the prosecutions case was closed
* Is required to be admitted in the interests of justice.
303
When is the introduction of this evidence permitted until?
It can only be permitted until the jury retires.
The JUDGE can recall any witness where he or she considers it to be in the interests of justice.
304
When can the judge give direction to the jury?
Directions about:
* S122 - Evidence may be unreliable
* S123 - Certain ways of giving evidence
* S124 - Lies
* S125 - Childrens evidence
* S126 - ID evidence
* S127 - Delayed complaints or failure to complain (sexual cases)
305
What types of evidence might attract a judicial warning for unreliable information?
For:
* Hearsay evidence
* Evidence of a statement by the defendant - if it is the ONLY evidence
* Evidence by witness with motive to give false evidence
* Statement of defendant while in custody to another person
* Evidence of conduct alleged to have occurred more than 10 years ago.
306
Under S122 (unreliable evidence) a party can request a warning however the judge need not comply if they are of the opinion that it will:
* Unnecessarily emphasise evidence OR
* They think there is another good reason NOT to comply
307
Warnings under S123 (certain ways of giving evidence), what MUST the judge do?
The judge MUST direct that:
* the law makes special provisions for giving evidence in alternative ways AND
* No inferences should be drawn against the defendant where:
* A witness has offered evidence in an alternate way
* A defendant has not been allowed to personally cross-examine a witness
* A witness offers evidence in accordance with a witness anonymity order
308
Warnings under S124 (Direction around lies), when does this arise?
When the defendant lied before / during the trial - It is up to the jury to decide if the defendant did in fact lie.
309
When will the judge give a direction around lies?
It will ONLY be given if the judge believes that undue weight will be put on evidence OR if it is requested by the defendant.
If requested by the defendant it is most likely to be granted.
310
What must be included in a direction against lies?
* The jury needs to be satisfied that they did lie before using it
* People lie for various reasons AND
* The jury should not necessarily conclude that because the defendant lied he / she is guilty.
311
What is prohibited under S125 (childrens evidence)?
It is prohibited for:
* The judge to give a warning about evidence corroboration if it would not have been given in an adult case
* Any direction or comment that there is a need to scrutinise children’s evidence with special care OR that children have a tendency to invent or distort.
HOWEVER all other parts of the evidence act take priority over S125 and therefore if it attracts warnings for other reasons they should be given.
312
OFFICER IN CHARGE - what to do with witnesses - NOT GUILTY HEARINGS
* Time / date / place of trial and any exhibits
* Of procedure when giving evidence
* They can refresh their memory before giving evidence
* Remain within call if excluded from court
* (Ensure) no jurors are known to witnesses
* Not to mix / speak with jurors
* Witness expenses
313
OC - General - MUST
- Ensure you look, stand and speak correctly
- Identify your defendant
- Locate your witnesses and help as required
- Do not mix with jurors or members of defence
314
OC - Giving evidence - MUST
- Take care to answer the question actually asked
- Say you don't know rather than guess
- Do not be flippant
- Address the judge as sir/ma’am or your honour
- Address the defence / prosecution as sir/ma’am
- Advise the judge of any mistakes you make OR the prosecutor if you have finished giving evidence
315
OC - IF you need to refer to notebooks:
* Ask the courts permission
* Introduce any material properly by saying “I interviewed the defendant and wrote answers in my notebook at this time”
* Remember the defence and jury are entitled to view your notes so SEAL any other notebook entires
* You are only allowed to REFRESH your memory UNLESS you have permission to read the entry / whole interview.
316
Why is it important to introduce your notebook?
It is important to introduce your notebook in case the statement itself is rejected and the only admissible evidence of an admission is in your notebook.
