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Flashcards in Module 9: Evidence Deck (114)
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What is evidence?

“Evidence” is the term for the whole body of material which a court or tribunal may take into account in reaching their decision.


What is admissible evidence?

Evidence is admissible if it is legally able to be received by a court.


What are Facts in issue?

The facts which in law need to be proven to succeed with the case. Usually alleged by the charging document and denied by a not guilty plea.

• 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.


The “weight” of evidence is its 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.


What is the definition of incriminate?

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.


What is a statement?

This is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter


What is the Woolmington v DPP principle: 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.


In a proceeding, evidence may be given in the following ways?

− the ordinary way
− the alternative way such as by video link
− any other way provided for by the Evidence Act 2006 or any other enactment.


The burden of proof lies with the prosecution (Woolmington principle) except where?

− the defence of insanity is claimed
− specific statutory exceptions exist
− the offence is a public welfare regulatory offence.


The standard of proof where the legal burden is on the prosecution is “beyond reasonable doubt”. Where the defence bears the burden, it need only be proved on the?

Balance of probabilities


Explain the difference between the terms “beyond reasonable doubt" and on the “balance of probabilities"?

Beyond reasonable doubt is the standard of proof required for the Prosecution to prove its case. It means that jurors must be satisfied of guilt before they can convict.
Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.


What was held in Woolmington v DPP?

It was held that 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.


What are two exceptions to the burden of proof being on the prosecution?

Defence of insanity.

Possess an offensive weapon in circumstances that prima facile show an intention to use it, defendant has no prove no such intent.


Describe 4 matters which the Judge may consider in determining whether veracity evidence is substantially helpful?

(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.


What is the definition of 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.


Define both "Presumption of law" and Presumption of fact"?

Presumptions of law are inferences that have been expressly drawn by law from particular facts.

Presumptions of fact are those that the mind naturally and logically draws from the given facts.


Section 16(2) defines what is meant by “unavailable as a witness”?

(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.


Why is opinion evidence unreliable?

• where a witness offers a bare opinion it holds little probative weight
• there is a danger that a 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. The opinion evidence could confuse the tribunal of fact and prolong proceedings.
• a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence).


Describe privilege and give two examples?

A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

• communications with legal advisors – section 54
• solicitors’ trust accounts – section 55
• preparatory materials for proceedings – section 56
• settlement negotiations or mediation – section 57
• communications with ministers of religion – section 58
• information obtained by medical practitioners and clinical psychologists – section 59.


What are three reasons why leading questions are not permitted?

• There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.


What are four reasons that evidence rebuttal can be recalled?

• relates to a purely formal matter
• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
• was not available or admissible before the prosecution’s case was closed, or
• is required to be admitted in the interests of justice for any other reason.


What are four types of questions that the judge can state are unacceptable?

Improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.


Define corroboration and list two offences which corroboration is required by the prosecution?

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.

(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).


Explain the an 11 year old's parents what the judge will expect of them in terms of oath and affirmation?

(Promise to tell the truth)


Explain two ways of giving evidence?

Ordinary way - orally in court room or affidavit written for court

Alternative way - behind screen, video link, video previously made


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 testimony given in evidence-in-chief


If a witness has memory loss, citing legislation can they be called hostile?

A clear distinction must be drawn between unfavourable witnesses and hostile witnesses. Witnesses who simply fail to come up to brief may be unfavourable to the party calling them, but they are not necessarily hostile.
This indicates that the simple fact that a witness gives evidence adverse to a party, suffers a loss of memory, or provides evidence inconsistent with another statement does not, by itself, justify finding the witness is hostile.


What are the four principles of of evidence law?

Public Interest


What was found in R v Wanhalla in relation to reasonable doubt?

If after careful and impartial consideration of all the evidence, you are sure the accused is guilty you must find him or her guilty.


Explain the term "Facts that prove the charge"?

The facts must prove the elements of the charge, and the evidence should be made up of facts that prove the charge.