Evidence Bully 2021 Flashcards
Define ‘evidence’
Evidence is a term for the whole body of material which a court or tribunal (i.e in criminal cases the judge or jury), may take into account in reaching their destination. May be in oral, written, or visual form
Define ‘admissible evidence’
Evidence is admissible if it is legally able to be received by a court
Define ‘weight of evidence’
It is the value in relation to the facts in issue. The value will depend on a wide range of 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
Its the ‘probative force’ that can be given to evidence
Define ‘Statement’
This is a spoken or written assertation by a person, or non-verbal conduct of a person intended by that person as an assertation of any manner
Define ‘hearsay statement’
- out-of-court statements
This is a statement that was made by a person other than a witness, and is offered in evidence in the proceeding to prove the truth of its contents.
Out-of-court statements made by a “witness” are not excluded by hearsay rule because the maker is available to be cross-examined.
Such statements may still be excluded by a different rule. A statement offered for some purpose other than proving the truth of its contents, e.g. merely to show that the statement was made or uttered, is not a hearsay statement
Define ‘direct evidence’
This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced (an eyewitness saw defendant stab the complainant with a knife)
Define ‘circumstantial evidence’
This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences (by Judge and jury) about the existence of those facts to be drawn (the defendant was seen in the vicinity of the scene of the crime). As such, it offers indirect proof of a fact in issue.
What are ‘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.
eg. a person under 10 years old can’t be charged OR the defendant is innocent until proven guilty.
What are ‘presumptions of facts’?
Presumptions of Fact are those that the mind naturally and logically draws from the given facts, e.g. one presumes that a person has guilty knowledge if they have possession of recently stolen goods. Presumptions of facts are simply logical inferences, and so are always rebuttable
What is corroboration?
Corroboration is not defined in the Act. It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged
Explain ‘burden of proof’ (Woolmington Principal)
Burden of Proof – Whoever asserts something must prove it.
‘Woolmington Principle’ fundamental principle in criminal law is the ‘presumption of innocence’. 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
Explain what ‘evidential burden’ means
Ultimate question for the jury “has the prosecution proved its case”?
Having an evidential burden means that a defence cannot be left to the the Judge or Jury unless it has been made a live issue by the defence.
It is not a burden of proof, and once it is made a ‘live issue’ then the prosecution must destroy the defence, because the burden of proof remains with the prosecution.
What are the exceptions of ‘evidential burden’?
There are exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant. The most common example is the defence of insanity (s23(1) CA 61).
Furthermore, the principle can be overridden by Parliament by express statutory exceptions. Some offence provisions shift the burden of proof of specific defences to the defendant
Explain ‘beyond reasonable doubt’
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”.
What is the ‘balance of probabilities’?
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. If the probabilities are equal, the burden is not discharged
What is the purpose of evidence law (found in S6 of the Evidence Act)?
The purpose of this Act is to help secure the just determination of proceedings by:
(a) Providing for facts to be established by the application of logical rules.
(b) Providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990.
(c) Promoting fairness to parties and witnesses.
(d) Protecting rights of confidentiality and other important public interests.
(e) Avoiding unjustifiable expense and delay.
(f) Enhancing access to the law of evidence.
Explain what good evidence is in relation to ‘facts that prove the charge’
Facts that Prove the Charge (good evidence) establishes what you are trying to prove (in light of the other purposes in s6). The facts must prove the elements of the charge, and the evidence should be made up of facts the prove the charge.
What is Circumstantial Evidence?
Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof of a fact in issue
What is the general rule of evidence?
That all facts in issue and fact relevant to the issue must be proved by evidence
What is S128 of the Evidence Act (Notice of Uncontroverted Facts)
Notice of Uncontroverted Facts Section 128
(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding it is being held that they cannot reasonably be questioned
What are ‘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
What are ‘presumptions of fact’?
Presumptions of Fact are those that the mind naturally and logically draws from the given facts, e.g. one presumes that a person has guilty knowledge if they have possession of recently stolen goods. Presumptions of facts are simply logical inferences, and so are always rebuttable.
How do you determine admissibility?
In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the EA 06:
- Public Interest (tentatively)
- Unfairness
- Relevance
- Reliability
What is the fundamental principal that relevant evidence is admissible under S7(3)? (evidence is relevant…)
Fundamental Principle that Relevant Evidence Admissible Section 7
(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.
For facts to be received, they must be what? (two things)
Relevant and admissable.
What is inadmissibility or exclusion?
Inadmissibility or exclusion will usually be due to a lack of reliability, fairness, public interest, or a combination of these factors.
When is evidence excluded? (‘general exclusion test’ under S8)
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will-
(a) Have an unfairly prejudicial effect on the proceeding; or
(b) Needlessly prolong the proceeding.
What is the S8 test?
Section 8 Test Involves balancing the probative value of evidence against the risk that it will:
• Have an “unfair prejudicial effect on the proceeding” s8(1)(a), or
• “Needlessly prolong the proceeding” s8(1)(b).
What is a ‘voir dire’ hearing?
It is where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
The jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a Voir Dire are sometimes referred to as “preliminary facts”
What does S6 allow in terms of evidence?
S6 Evidence Act allows evidence to prove ‘anything that is of consequence to the determination of the proceeding’ (relevant evidence defined)
What are the exclusive rules of evidence?
The exclusive rules of evidence deal with: • Veracity • Propensity • Hearsay • Opinion • Identification • Improperly Obtained Evidence
Under S6 of the Evidence Act, what are the two classes of ‘character’ evidence?
EA 06 divides what was called “character” evidence at common law into two classes of evidence:
• Veracity – a disposition to refrain from lying, and
• Propensity – a tendency to act in a particular way
Under S37 of the Evidence Act, outlines the veracity rules. What is held in SS3 of this section?
(3) In deciding whether or not evidence will be offered about the veracity of a person, the Judge may consider whether the proposed evidence tends to show 1 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 (for example, in an earlier proceeding or in a signed declaration):
b. That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
c. Any previous inconsistent statements made by the person:
d. Bias on the part of the person:
e. A motive on the part of the person to be untruthful
S38 of the Evidence Act outlines the evidence of a defendants veracity.
The defendant may offer evidence about his or her veracity provided that it meets the substantial helpfulness test set out in S37… what is held in S38 EA?
(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.
(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if –
a. The defendant has offered evidence about his or her 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.
(3) In determining whether to give permission under subsection (2(b), the Judge may take into account any of the following matters:
a. The extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:
b. The time that has elapsed since any conviction about which the prosecution seeks to give evidence:
c. Whether any evidence given by the defendant about veracity was elicited by the prosecution