Evidence Module Flashcards
1
Q
What is the definition of evidence?
A
Evidence is the term for the whole body of material which a court or tribunal may take into account in reaching their decision.
Evidence may be in oral, written or visual form.
2
Q
What is the definition of admissible evidence?
A
Evidence is admissible if it is legally able to be received by the court. If evidence cannot be received, it is inadmissible.
3
Q
What is the definition of relevance?
A
Evidence is relevant ‘if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding’.
4
Q
What is the definition of facts in issue?
A
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
5
Q
What is the definition of exclusionary rules?
A
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).
6
Q
What is the definition of weight of evidence?
A
The ‘weight’ of evidence is it’s value in relation to the facts in issue.
The ‘weight’ is the degree of probative force that can be accorded to the evidence.
7
Q
What is the definition of ‘offer evidence’?
A
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.
Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross-examination of a witness called by another party.
8
Q
What is the definition of ‘giving evidence’?
A
Giving evidence is included in offering evidence: a witness ‘gives evidence’; a party ‘offers evidence’. A party who testifies both gives and offers evidence.
9
Q
What are the three different ways of giving evidence?
A
In a proceeding, evidence may be given:
- in the ordinary way either orally in a courtroom or in an affidavit filed in court or by reading a written statement in a courtroom
- in an alternative way - in the courtroom but unable to see the defendant or other person; outside the courtroom (AVL); or by video recording made before the hearing
- in any other way provided for by the Evidence Act 2006 or any other relevant enactment
10
Q
What is the definition of incriminate?
A
To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
11
Q
What is the definition of a proceeding?
A
This means a proceeding conducted by a court, and any application to a court connected with a proceeding.
12
Q
What is the definition of a statement?
A
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.
13
Q
What is the definition of witness?
A
This is a person who gives evidence and is able to be cross-examined in a proceeding.
14
Q
What is the definition of hearsay statement?
A
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.
15
Q
What is the definition of veracity?
A
This is the disposition of a person to refrain from lying, whether generally or in a proceeding.
16
Q
What is the definition of propensity?
A
Propensity evidence 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.
17
Q
What is the definition of direct evidence?
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
What is the definition of circumstantial evidence?
A
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.
19
Q
What is the definition of ‘circumstances’ under s16(1) of the Evidence Act 2006?
A
In relation to a statement by a person who is not a witness, include -
(a) the nature of the statement
(b) the contents of the statement
(c) the circumstances that relate to the making of the statement
(d) any circumstances that relate to the veracity of the person
(e) any circumstances that relate to the accuracy of the observation of the person
20
Q
What is the definition of ‘unavailable as a witness’ under s16(2) of the Evidence Act 2006?
A
If the person -
(a) is dead
(b) is outside NZ and it is not reasonably practicable for him or her to be a witness
(c) is unfit to be a witness because of age or physical or mental condition
(d) cannot with reasonable diligence be identified or found
(e) is not compellable to give evidence
21
Q
What is the definition of enforcement agency?
A
This refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the New Zealand Customs Service, the Ministry of Fisheries, and the Inland Revenue Department.
22
Q
What is the definition of ‘associated defendant’?
A
A person against whom a prosecution has been instituted for -
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
23
Q
What is involved in the Woolmington principle?
A
The fundamental principle in criminal law is the presumption of innocence, known as the Woolmington principle.
The 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.
24
Q
What was held in Woolmington v DPP?
A
The prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
25
What is the difference between 'practical obligation on the defence' and 'evidential burden on the defence'?
The prosecution proves facts that the defendant committed the act and the defendant is to produce some story or evidence if he or she wants to suggest the conclusion is wrong. This is not a burden of proof - the defendant does not have to prove anything. It is simply a practical obligation to point to some evidence that suggests a reasonable doubt.
Where the defendant wishes to put up a defence to the charge, it is not just a 'practical obligation', rather there is an 'evidential burden' on the defendant. Once the basic elements have been proved, it is up to the defendant to point to some evidence that suggests an explanation e.g. self-defence.
26
What are 3 of the exceptions to the Woolmington principle?
- defence of insanity (s23(1), CA61)
- some offence provisions shift the burden of proof of specific defences to the defendant e.g. s202A(4)(b), CA61 where the defendant can prove the absence of intent
- the Evidence Act 2006 places the burden of proving a particular issue on one party in relation to the admissibility of evidence and occasionally this may be the defendant.
27
What are public welfare offences?
The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public.
28
When does the Woolmington principle not apply?
During public welfare regulatory offences, once the prosecution has proved actus reus, the burden passes to the defendant to prove a total absence of fault as a defence.
These are 'strict liability' offences, which may be seen as sitting outside the Woolmington principle, as opposed to true exception.
29
To what standard is the burden of proof for the prosecution?
Beyond reasonable doubt.
30
To what standard is the burden of proof for the defence?
Balance of probabilities.
31
In R v Wanhalla, what guidance was provided as a definition for 'beyond reasonable doubt'?
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.
32
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. If the probabilities are equal, the burden is not discharged.
33
What is outlined in s6 of the Evidence Act 2006? (6 components)
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; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights 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
34
What is outlined in s7 of the Evidence Act 2006?
Fundamental principle that relevant evidence admissible.
(1) all relevant evidence is admissible in a proceeding except evidence that is -
(a) inadmissible under this Act or any other Act; or
(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
35
What is outlined in s8 of the Evidence Act 2006?
General exclusion.
(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
36
What is the s8 test?
The s8 test involves balancing the probative value of evidence against the risk that it will:
- have an 'unfairly prejudicial effect on the proceeding' or
- 'needlessly prolong the proceeding'
37
What is the general rule of evidence?
All facts in issue and facts relevant to the issue must be proved by evidence.
38
What are the 2 main exceptions to the general rules of evidence?
The two main exceptions to the general rule are when no evidence needs to be given of facts because:
- judicial notice is taken
- the facts are formally admitted
39
What is the definition of judicial notice?
When a court takes judicial notice of a fact, it 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.
40
What is outlined in s9 of the Evidence Act 2006?
Admission by agreement.
(1) in any proceeding, the Judge may, -
(a) with the written or oral agreement of all parties, admit evidence that is not otherwise admissible, and
(b) admit evidence offered in any form or way agreed by all parties
(2) in a criminal proceeding, a defendant may admit any fact alleged against that defendant so as to dispense with proof of that fact.
(3) in a criminal proceeding, the prosecution may admit any fact so as to dispense with proof of that fact.
41
What is the definition of 'presumptions of law'?
Inferences that have been expressly drawn by law from particular facts. They may be either conclusive or rebuttable.
42
What is the definition of 'presumptions of fact'?
Presumptions of fact are those that the mind naturally and logically draws from the given facts. Presumptions of fact are simply logical inferences, and so are always rebuttable.
43
What was held in R v Burrows?
"The party wishing to bring the evidence has the burden of showing the evidence is admissible. It is illogical to require the Crown to show admissibility beyond reasonable doubt because circumstantial facts do not have to be proved to that standard."
44
What are the 3 principles when deciding whether evidence is admissible?
- relevance
- reliability
- unfairness
45
Why might evidence be excluded due to unfairness?
- evidence may be excluded if it would result 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.
46
What are the similarities between the s8 test and s43?
Under s43, there is a similar balancing exercise, with specific focus on the prejudicial effect on the defendant, where the prosecution wish to offer propensity evidence about the defendant.
47
What was held in R v Hannigan?
The Judge retains control of the admission of evidence and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.
48
What is outlined in s14 of the Evidence Act 2006 regarding provisional admission of evidence?
If a question arises concerning the admissibility of any evidence, the Judge may admit that evidence subject to evidence being later offered that establishes its admissibility.
49
What is outlined in s15 of the Evidence Act 2006 regarding evidence given to establish admissibility?
Evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding -
(a) is admissible in the proceeding if the evidence given by the witness is inconsistent with the witness's subsequent testimony in the proceeding (whether or not the other evidence is admitted)
(b) is not otherwise admissible in the proceeding
50
What was held in Hart v R?
It stated that 'the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all."
51
In relation to limiting the use of evidence and use for multiple purposes, what does s27 involve?
Controls the use of pre-trial statements of defendants and co-defendants.
52
In relation to limiting the use of evidence and use for multiple purposes, what does s31 involve?
Forbids the prosecution from relying on certain evidence offered by defendants in a criminal case.
53
In relation to limiting the use of evidence and use for multiple purposes, what does s32 involve?
Forbids the fact-finder from using a criminal defendant's pre-trial silence as evidence of guilt.
54
What 6 areas do the exclusive rules of evidence deal with?
- veracity
- propensity
- hearsay
- opinion
- identification
- improperly obtained evidence
55
What was held in R v Gwaze?
The Supreme Court has made it clear that rules of admissibility, including ss 7 and 8, are rules of law and are not matters of discretion.
56
'Character evidence' is now separated into what two classes of evidence?
Veracity - a disposition to refrain from lying.
Propensity - a tendency to act in a particular way.
57
What is outlined in s37 of the Evidence Act 2006 with regard to veracity rules?
(1) A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity
(2) in a criminal proceeding, evidence about a defendant's veracity must also comply with s38 or s39
58
Evidence that is 'substantially helpful' is a higher threshold than relevance under s7. What may the Judge consider in order for the evidence to be admissible? This is also known as the 'substantial helpfulness test'.
(3) in deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider whether 1 or more of the following applies:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth
(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
59
What is outlined in s37(4) regarding challenging the veracity of their own witness?
(4) a party who calls a witness -
(a) may not offer evidence to challenge that witness's 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
60
What was held in R v K?
It was suggested that someone's reputation for veracity is potentially admissible under s37, but the substantial helpfulness threshold will only be met in exceptional cases.
61
When is the substantial helpfulness not a sufficient test?
- where the prosecution wish to offer evidence about a defendant's veracity (s38)
- where a defendant offers veracity evidence about a co-defendant (s39)
62
What matters must occur in order to be able to offer evidence of a defendant's veracity (s38(2))?
- 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
- the Judge permits the prosecution to do so
63
What matters must occur in deciding whether to give permission for the prosecution to question the defendant about his or her veracity (s38(3))?
- 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
- the time that has elapsed since any conviction about which the prosecution seeks to give evidence
- whether any evidence given by the defendant about veracity was elicited by the prosecution
64
What is the definition of propensity evidence in s40 of the Evidence Act 2006?
(1) Propensity evidence -
(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is -
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question
65
What does propensity evidence include?
- propensity as to actions
| - propensity as to state of mind
66
What does propensity evidence not include?
- evidence of an act or omission that is one of the elements of the offence for which the person is being tried
- evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37)
67
What is outlined in s41 of the Evidence Act 2006?
Propensity evidence about defendants
(1) a defendant in a criminal proceeding may offer propensity evidence about himself or herself
(2) if a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about the defendant
(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2)
68
What is outlined in s43(1) of the Evidence Act 2006?
Propensity evidence offered by prosecution about defendants.
(1) the prosecution may offer propensity evidence about a defendant in a criminal proceeding 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
69
Under s43(2), what MUST the Judge consider when assessing the probative value of propensity evidence?
The nature of the issue in dispute.
70
Under s43(3), what MAY the Judge consider when assessing the probative value of propensity evidence?
- the frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred
- the connection in time OR the extent of the similarity between the AOEC which are the subject of the evidence and the AOEC which constitute the offence for which the defendant is being tried
- the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried
- whether the allegations described above may be the result of collusion or suggestibility
- the extent to which the AOEC which are the subject of the evidence and the AOEC which constitute the offence for which the defendant is being tried are unusual
71
Under s43(4), what MUST the Judge consider when assessing the prejudicial effect of evidence on the defendant?
- whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
- whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
72
What was held in Rei v R in relation to the requirements for the admission of propensity evidence?
The evidence must:
- constitute propensity (definition)
- have a probative value 'in relation to an issue in dispute' and other matters that may be relevant, including those prescribed in s43(3); and
- have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
73
What is outlined regarding probative value and prejudicial effect?
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.
74
What is outlined regarding prior convictions as part of propensity evidence?
The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence. In addition, it is well-established that conduct that is subsequent to the present offending is capable of being propensity evidence.
75
What must the Judge take into account with regard to the probative value of the evidence and the prejudicial effect on the defendant?
When assessing the probative value of the evidence, the Judge MUST take into account the nature of the issue in dispute. Only then he or she MAY consider s43(3).
When assessing the prejudicial effect on the defendant, the Judge MUST consider s43(3). If the Judge decides that there is a risk that the propensity evidence will have an unfairly prejudicial effect on the defendant, he or she must weigh that risk against the probative value of the evidence.
76
What is outlined in s17 of the Evidence Act 2006 regarding the hearsay rule?
A hearsay statement is not admissible except -
- as provided by this subpart or by the provisions of any other Act; or
- in cases where
——this Act provides that this subpart does not apply; and
——the hearsay statement is relevant and not otherwise inadmissible under this Act.
77
What is outlined in s18 of the Evidence Act 2006 regarding the general admissibility of hearsay?
A hearsay statement is admissible in any proceeding if the statement is reliable and either:
- the maker of the statement is unavailable as a witness; or
- undue expense or delay would be caused
78
What 3 components are involved in the lack of reliability of hearsay evidence?
- where the maker is not called as a witness, there is no opportunity to cross-examine them
- the juries cannot evaluate evidence properly without being able to see the demeanour of the person
- witnesses may make mistakes about the meaning or content of statements made by other people
79
What is the main reason for the hearsay rule's existence?
The danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.
80
What is outlined in s19 of the Evidence Act 2006 regarding the admissibility of hearsay statements contained in business records?
A hearsay statement contained in a business record is admissible if -
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness
80
What is outlined in s22 of the Evidence Act 2006 regarding notice of hearsay in criminal proceedings?
The rationale for the notice provision is, where possible, to encourage admissibility decisions concerning hearsay to me made pre-trial.
81
What is outlined in s23 of the Evidence Act 2006 regarding the opinion rule?
A statement of opinion is not admissible in a proceeding, except as provided by ss 24 or 25.
82
What is the definition of opinion?
A statement of opinion that tends to prove or disprove a fact.
83
What is the rationale for the exclusionary rule?
To prevent the admission of unreliable, superfluous or misleading evidence.
84
What are the 3 justifications for the exclusionary rule around opinion evidence?
- where a witness offers a bare opinion, it holds little probative weight
- there is a danger that the witness offering opinion evidence will 'usurp' the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence
- a witness's evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible
85
What is outlined in s24 of the Evidence Act 2006 regarding non-expert opinion evidence?
General admissibility of opinions.
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.
86
What are the two basic criteria that the statement of opinion must fulfil in order to be admissible under s24?
- opinion must be the only way in which to effectively communicate the information to the finder of fact
- the witness must be stating an opinion from something personally perceived
87
What is outlined in s25 of the Evidence Act 2006 regarding expert opinion evidence?
Admissibility of expert opinion evidence.
If the evidence is opinion evidence, then in order to comply with s25, the opinion must:
- be that of an 'expert'
- comprise 'expert evidence', and
- offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding
88
What is outlined n s25(3) of the Evidence Act 2006?
If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.
89
What is the definition of an 'expert'?
A person who has specialised knowledge or skill based on training, study or experience.
90
What was held in R v Turner in relation to evidence based on proven facts?
Before the court can assess the value of an opinion it must know the facts upon which it is based... In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based.
91
What are the 8 principles regarding the conduct of experts?
1. State his or her qualification
2. The facts must be stated explicitly
3. The reasons for opinions given must be stated explicitly
4. Any literature or other material used must be referred to by the expert
5. Must not give opinion evidence outside his or her area of expertise
6. If an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
7. Must be impartial on relevant matters with that expert's area of expertise
8. An expert is not an advocate for any party
92
What is the notice requirement regarding expert evidence?
If the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report at least 14 days before the date fixed for the trial.
93
What 4 areas of verification must be made before a person is served with a summons to appear in court?
- whether they are allowed to give evidence
- whether they are required to give evidence
- whether they can refuse to give evidence, and
- what type of witness they will be
94
What is outlined in s71 of the Evidence Act 2006 regarding eligibility and compellability?
In a civil or criminal proceeding, any person is eligible to give evidence and a person who is eligible to give evidence is compellable to give that evidence.
95
What 3 areas might testimony be excluded?
- irrelevant (s7)
- general exclusion (s8)
- a person is unavailable as a witness if he or she is 'unfit to be a witness because of age or physical or mental condition' (s16)
96
What areas might a person be ineligible to give evidence?
- a judge in that proceeding (s72)
- a juror in that proceeding (s72)
- counsel in that proceeding (unless the defendant is self-representing)(s72)
97
What situations are people not a compellable witness?
- defendants (s73)
- associated defendants (s73)
- judges (s74)
- bank officers (s75) - no bank officer is compellable to produce banking records if the contents can be proven under the 'business records' exception to the hearsay rule (s19)
98
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations.
1. the associated defendant is being tried separately from the defendant; or
2. the proceeding against the associated defendant has been determined
99
What areas might witnesses who are otherwise compellable be excused by a Judge from testifying?
- 'just cause' (s165)
| - privilege
100
What is the definition of privilege in relation to the giving of evidence?
The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.
101
What are the 8 types of privilege?
1. Communications with legal advisers (s54)
2. Solicitors' trust accounts (s55)
3. Preparatory materials for proceedings (s56)
4. Settlement negotiations or mediation (s57)
5. Communications with ministers of religion (s58)
6. Information obtained by medical practitioners and clinical psychologists (s59)
7. Privilege against self-incrimination (s60)
8. Informer privilege (s64)
102
What is outlined in s53(1) of the Evidence Act 2006 regarding effect and protection of privilege?
(1) A person who has a privilege conferred by any of the ss 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding -
(a) the communication; and
(b) the information, including any information contained in the communication
(c) any opinion formed by a person that is based on the communication or information
103
What is an exception to privileged communication?
The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
104
When would a communication with a legal adviser be 'privileged'?
(a) the communication must be intended to be confidential
| (b) the communication must be made for the purposes of obtaining or giving legal services
105
What is included in preparatory materials for proceedings?
The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose or preparing for a proceeding or an apprehended proceeding.
106
What is outlined in s58 of the Evidence Act 2006 regarding privilege for communications with ministers of religion?
A person has a privilege in respect of communication between that person and a minister of religion if the communication was -
(a) made in confidence to or by the minister in the minister's capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
107
What is the definition of a minister of religion?
If the person has a status within a church or other religious or spiritual communicate that requires or calls for that person -
(a) to receive confidential communications of the kind described in subsection (1); and
(b) to respond with religious or spiritual advice, benefit, or comfort
108
What is outlined in s59 of the Evidence Act 2006?
A person has a privilege in a criminal proceeding in respect of any communication or information made/obtained by the person to a medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
109
Who does s59 apply to?
A person who consults of it examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
110
Who does s59 NOT apply to?
A person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.
111
What is the definition of a clinical psychologist?
A health practitioner who is, or is deemed to be, registered with the Psychologists Board
AND
Who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems
112
What is the definition of self-incrimination?
The provision by a person of information that could reasonably be lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.
113
What is outlined in s60 of the Evidence Act 2006 regarding privilege against self-incrimination?
If a person is required to provide specific information and the information would, if so provided, be likely to incriminate the person, that person has a privilege and cannot be required to provide it, and cannot be prosecuted or penalised for refusing or failing to provide the information.
114
What is the definition of an informer?
Someone who has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed.
An informer may be a member of the police working undercover.
115
What is outlined in s64 of the Evidence Act 2006 regarding informers?
An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer's identity.
116
In what 2 situations MUST or MAY (respectively) privilege be disallowed by the Judge?
1. Where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence.
2. Where the Judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.
117
What must the Judge weigh up when evidence may be given about the deliberations of a jury?
- the public interest in protecting the confidentiality of jury deliberations generally, and
- the public interest in ensuring that justice is done in those proceedings
118
What is outlined in s68 regarding the protection of journalists' sources?
Where a journalist promises an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would do so.
119
What is outlined in s69 regarding overriding discretion as to confidential information?
Allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.
120
What is the definition of corroboration?
Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.
121
What types of offences are considered by law to require corroboration?
- perjury
- false oaths
- false statements or declarations
- treason
122
What is the Judge's role in a jury trial?
- decide all questions concerning the admissibility of evidence
- explain and enforce the general principles of law applying to the point at issue
- instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted
123
What are the general features of the justice system?
The conduct of criminal trials follows the 'adversarial' or 'accusatorial' system of justice:
- facts and evidence emerge by means of questions by the prosecution and defence to witnesses
- cross-examination
- the Judge rules on the admissibility of evidence
- Judge or jury may ask questions
- defendant does not have to give evidence
- facts may be judicially noticed and accepted as fact (and therefore not questioned)
124
What must occur for a witness under the age of 12?
Be informed by the Judge of the importance of telling the truth and not telling lies, and
After being given that information, make a promise to tell the truth, before giving evidence
125
According to s84 of the Evidence Act 2006, what is the order of proceedings when examining witnesses?
1. A witness gives evidence in chief
2. The other party cross-examines the witness
3. The witness may be re-examined by the party who called the witness
126
What is the sequence of a jury trial?
1. Jury is empanelled and a foreperson selected
2. The Judge commences the trial with opening instructions
3. The Crown makes an opening address detailing the allegation(s) and evidence to be called
4. The Crown's case is presented including all witnesses (and follows evidence in chief > cross-examination > re-examination)
5. Defence makes an opening address
6. The defence's case is presented including all witnesses (and follows evidence in chief > cross-examination > re-examination)
7. The Crown closes
8. The defence closes
9. The Judge sums up to the jury
10. The jury retires to consider its verdict
127
What is the definition of 'evidence in chief'?
Evidence given by the witness through questioning by the party having called the witness.
128
What is the definition of 'cross-examination'?
The party who DIDN'T call the witness questions and challenges the testimony of the witness.
129
What is the definition of 're-examination'?
Further questioning by the party who called the witness to clarify or qualify any matter which was raised during the cross-examination.
130
What is a 'view' during a jury trial?
An inspection of a place or thing that is not in the courtroom.
131
Who are the only people able to comment on the fact that the defendant did not give evidence at his or her trial (s33)?
No persons other than the defendant or the defendant's counsel or the Judge may comment on this.
132
What is the definition of a leading question?
One that directly or indirectly suggests a particular answer to the question.
133
In what situations are leading questions permitted (s89)?
- the question relates to introductory or undisputed matters; or
- the question is put with the consent of all other parties; or
- the Judge, in exercise of the Judge's discretion, allows the question
134
What factors can be considered when consulting a document for the purpose of refreshing memory?
- the significance of the events to the witness
- the time elapsed between the events and the making or adoption of the document
- evidence from the witness about the freshness of their memory
- the detail and lucidity of the recollection recorded in the document
135
What was held in Rongonui v R?
A statement made 6 weeks after the event could still be a document made or adopted at a time when the witness's memory was fresh.
136
What are the two different types of memory refresh for witnesses?
1. Refreshment of memory by reference to written documentation in court.
2. Refreshment of memory out of court.
137
Under what circumstances outlined in s35(2) are previous consistent statements admissible?
(a) responds to a challenge that will be or has been made to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complain has been made in a criminal case
138
What is the general rule regarding previous consistent statements?
A witness cannot give evidence about statements made before the trial that are consistent with the evidence given at the trial unless the exceptions contained in s35(2) apply.
139
What is the definition of a hostile witness?
- exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
- gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
- refuses to answer questions or deliberately withholds evidence
140
Once a witness is declared hostile by the Judge, what may the party do that called the witness?
- ask leading questions
- ask questions designed to probe the accuracy of memory and perception
- ask questions as to prior inconsistent statements
- challenges to veracity, including evidence from other witnesses
The party who called the witness can now, essentially, 'cross-examine' their own witness.
141
What is the difference between a hostile witness and an unfavourable witness?
An unfavourable witness may be a witness who simply fails to come up to brief and is therefore unfavourable to the party calling them.
142
What are the two purposes of cross-examination?
1. To elicit information supporting the case of the party conducting the cross-examination
2. To challenge the accuracy of the testimony given in evidence in chief
143
What are the 4 components where there is a duty during cross-examination?
- the cross-examination deals with 'significant matters' in the proceeding, and
- the matters are 'relevant' and 'in issue' in the proceeding, and
- the matters 'contradict the evidence of the witness', and
- the witness may 'reasonably be expected to be in a position to give admissible evidence on those matters'
144
What is outlined in s85 of the Evidence Act 2006 regarding unacceptable questions?
In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in a language that is too complicated for the witness to understand.
145
What is outlined is s96 of the Evidence Act 2006 regarding cross-examination on previous statements of witnesses?
A witness may be cross-examined about a previous statement, whether in oral or documentary form, without either being shown the statement or having its contents disclosed by the cross-examiner.
The cross-examiner must 'adequately identify' to the witness 'the time, place and other circumstances concerning the making of the statement'.
If the witness does not admit to making the statement, the cross-examiner may wish to provide the statement.
146
Under what circumstances may a Judge direct the jury that evidence should be scrutinised with particular care, or should be given less weight?
- judicial warning that evidence may be unreliable (s122)
- judicial directions about certain ways of giving evidence (s123)
- judicial warnings about lies (s124)
- judicial directions about children's evidence (s125)
- judicial warnings about identification evidence (s126)
- delayed complaints or failure to complain in sexual cases (s127)
