Short Answer

Question 1

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

Answer 1

• where the defence of insanity is claimed
• specific statutory exceptions exist
• where the offence is a public welfare regulatory offence

Question 2

Describe 5 matters which the judge may consider when determining whether veracity evidence is substantially helpful?

Answer 2

1. a lack of veracity on the part of the person when under a legal obligation to tell the truth
2. that the person has been convicted of one or more offences that indicate a propensity for dishonesty or lack of veracity
3. any previous inconsistent statements made by the person
4. bias on the part of the person
5. a motive on the part of the person to be untruthful

Question 3

Define circumstantial evidence and statement

Answer 3

CE - This 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.

S - 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

Question 4

Define presumption of law and fact

Answer 4

POL - are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttal.

POF - are those that the mind naturally and logically draws from the given facts. They are always rebuttal.

Question 5

Define Circumstances s16(1) EA06

Answer 5

Circumstances, in relation to a statement by a person who is not a witness, includes:

(a) the nature of the statement
(b) the content of the statement
(c) the circumstances that relate to the making of the statement
(d) the circumstances that relate to the veracity of the person
(e) the circumstances that relate to the accuracy of the observations of the person

Question 6

Why is opinion evidence so unreliable?

Answer 6

1. Where a witness offers a bare opinion, it holds little probative use
2. 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.
3. A witness’ evidence of opinion may be based on other evidence, which is stated expressly would be inadmissable

Question 7

Describe privilege and provide 4 examples

Answer 7

The right to refuse to disclose, or to prevent disclosure of what would otherwise be admissable-
S54 - communications with legal advisors
s55 - solicitors trust accounts
s56 - preparatory materials for proceedings
s57 - settlement negotiations or mediation

Question 8

Explain the S8 test?

Answer 8

The S8 test involves balancing the probative value of evidence against the risk that it will:

• have an unfairly prejuducial effect on the proceeding S8(1)(a)
• needlessly prolong the proceeding S8(1)(b)

Question 9

S9 Expert evidence. The opinion must:

Answer 9

• be that of an expert
• comprise expert evidence
• offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

Question 10

3 reasons why S85 EA06 Leading Questions are not permitted

Answer 10

1. 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.
2. Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity or geniuneness of the testimony.
3. There is a danger that leading questions will result in the manipulation or counsel a construction of the evidence through collusion conscious between counsel and the witness

Question 11

5 types of unacceptable question

Answer 11

1. Unfair
2. Improper
3. Misleading
4. Needlessly repetitive
5. Expressed in a language that is too complicated for the witness to understand

Question 12

Define corroboration and list 2 examples

Answer 12

Independant evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.
Perjury - S108
Treason - S73

Question 13

What are 4 reasons why rebuttal evidence can be recalled?

Answer 13

1. Relates to a purely formal matter
2. Relates to a matter arising out of the conduct of the defence, the relevance of which could could not reasonably have been forseen
3. was not available or admissable before the prosecution case was closed
4. is required to be admitted in the interest of justice for any other reason

Question 14

Explain to an 11 year olds parents what the judge will expect of the 11 year old in relation to oath and affirmation (promise to tell the truth)

Answer 14

Witnesses under the age of 12 must-

1. be informed by the judge of the importance of telling the truth and not telling lies
2. after being given that information, make a promise to tell the truth, before giving evidence

Question 15

What is the purpose of a cross examination?

Answer 15

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

Question 16

What are the 4 principles of admissibility?

Answer 16

1. Relevance
2. Reliability
3. Unfairness
4. Public Interest

Question 17

What are the 6 exclusive rules of evidence?

Answer 17

1. Veracity
2. Propensity
3. Hearsay
4. Opinion
5. Identification
6. Improperly obtained evidence

Question 18

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

Answer 18

A reasonable doubt is an honest and reasonable uncertain left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence

Question 19

Explain the term, facts that prove the charge?

Answer 19

The facts must prove the elements of the charge and the evidence should be made up of facts that prove that charge. The actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 20

Explain 2 ways of giving evidence?

Answer 20

Ordinary way - either orally in a courtroom in the presence of a judge or judge and jury, parties to the proceeding, counsel and members of the public allowed by the judge, or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible and it is the personal statement of the deponent or maker.

Alternative way - in a courtroom but unable to see the defendant or other persons, outside of the courtroom or by video recording made before the hearing. The court provides for audio and visual communication between participants (AVL) where some or all of them are not physically present at the place of hearing for all or part of the proceeding

Question 21

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

Answer 21

S4 EA2006
A hostile witness means the 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
- 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 that witness
- refuses to answer questions or deliberately withholds evidence

Whether the witness is hostile in one of these ways is a question of law for the judge, on application from a party in the proceeding.

The fact that a witness suffers from memory loss does not by itself, justify finding the witness hostile.

Question 22

Define the terms facts in issue and witness

Answer 22

FII: Facts in issue are the facts which in law need to be proven to succeed with a case. In criminal cases the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.
Facts in issue are those which:
- The prosecution must prove to establish elements of the offence
- The defendant must prove to succeed with a defence in respect of which he or she carries the burden of proff

Witness - This is a person who gives evidence and is able to be cross examined in a procceding.

Question 23

What did the case Woolmington v DPP establish in relation to the presumption of innocence?

Answer 23

Subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution, in relation to all of the elements of the offence.

Question 24

Explain reasonable doubt/balance of probabilities

Answer 24

The crown must prove that the accused is guilty beyond a reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the crown will have met only if at the end of the case you are sure that the accused is guilty.

A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

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 required in a criminal case

Question 25

Define hostile witness S4 EA 06

Answer 25

A hostile witness means the 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. 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. Refuses to answer questions or deliberately withholds evidence.

Question 26

Define leading question and what is the general rule in relation to leading questions?

Answer 26

One that directly or indirectly suggests a particular answer to the questions eg. answer yes or no. The general rule is that leading questions may not be asked during evidence in chief or re-examination.

Question 27

When are leading questions permitted?

Answer 27

S89(1), in any proceeding a leading question must not be put to a witness in examination in chief or re-examination unless- (a) the question relates to introductory or undisputed matters (b) the question is put with the consent of all other parties (c) the judge, in exercise of the judges discretion, allows the question

Question 28

Explain a voir dire

Answer 28

A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Facts determined at a voir dire are sometimes referred to as preliminary facts

Question 29

Explain privlidge and list 4 categories of privlidge

Answer 29

The right to refuse to disclose, or to prevent disclosure of what would otherwise be admissable- S54 - communications with legal advisors s55 - solicitors trust accounts s56 - preparatory materials for proceedings s57 - settlement negotiations or mediation

Question 30

What is the judge's role in a trial by jury?

Answer 30

- 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

Question 31

Can a witness refresh their memory before court? Explain

Answer 31

S90(5) EA 2006 For the purposes of refreshing his or memory while giving evidence, a witness may with the prior leave of the judge, consult a document made before or adopted at the time when his or her memory was fresh. The following conditions must be satisfied: - The leave of the judge must be obtained - The document was be shown to every other party in the proceeding - The document must have been made or adopted by a witness at the time when his or memory was fresh

Question 32

What is presumption of fact and give an example?

Answer 32

Presumptions of fact are those that the mind naturally and logically draws from the given facts. They are always rebuttal. Eg. One presumes that a person has guilty knowledge if they have possession of recently stolen goods

Question 33

What is the purpose of evidence law and give 6 examples?

Answer 33

S6 EA 2006 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 rule (b) providing rules of evidence that recognize the importance of the right affirmed by the NZBORA1990 (c) promoting fairness to parties and witnesses (d) protecting right of confidentiality and other important public interests (e) avoiding unjustifiable expense and delay (f) enhancing access to law of evidences

Question 34

Define hearsay statement?

Answer 34

S4 EA 2006 A statement that (a) was made by a person other than a witness (b) is offered in evidence at the proceeding to prove the truth of its contents

Question 35

Define expert witness

Answer 35

S4 EA 2006 A person who has specialized knowledge or skill based on training, study or experience. A judge must determine whether the expert witness is properly qualified to testify.

Question 36

Explain the S8 Test?

Answer 36

The S8 test involves balancing the probative value of evidence against the risk that it will: - have an unfairly prejuducial effect on the proceeding S8(1)(a) - needlessly prolong the proceeding S8(1)(b)

Question 37

List 5 examples of unacceptable questions

Answer 37

``` Unfair Improper Misleading Needlessly repetitive Expressed in a language that is too complicated for the witness to understand ```

Question 38

What is the purpose of a cross examination?

Answer 38

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

Question 39

Define statement

Answer 39

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

Question 40

List and describe 3 alternative ways of giving evidence

Answer 40

- in a courtroom unable to see the defendant or other person - outside of the courtroom - by video recording made before the hearing

Question 41

Does a judge have to give a warning re: directions about evidence given by children?

Answer 41

In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the judge must not give any warning to the jury about the absense of corroboration of the evidence of the complainant if the judge would not have given that kind of warning had the complainant been an adult

Question 42

Relevant evidence may be excluded if its unfair:

Answer 42

- 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

Question 43

Propensity - What does propensity evidence mean and what does it exclude?

Answer 43

S40- Propensity evidence: (1) (a) means evidence that tends to show a persons propensity to act in a particular way or have 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) one of the elements of the offence for which the person is being charged (ii) the cause of action in the proceeding in question

Question 44

The judge must consider giving a warning whenever the following evidence is givenL

Answer 44

- Hearsay evidence - Evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant - Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant - Evidence of a statement by the defendant to another person made where both the defendant and the other person were detained in prison, a police station or other place of detention

Question 45

What are the two exceptions to the general prohibition on previous consistent statements?

Answer 45

S35(2) - A previous statement of a witness that is consistent with the witnesses evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witnesses veracity or accuracy based of a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness. 35(3) - A previous statement of a witness that is consistent with the witnesses evidence is admissible if- (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable (b) the statement provides the court with information that the witness is unable to recall

Question 46

Are all people eligible and compellable to give evidence?

Answer 46

A witness is eligible if they are lawfully able to give evidence on behalf of the prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn they are under a compellable obligation to answer all questions put to them. As a general proposition all people are eligible and compellable to give evidence.

Question 47

Define what is meant by unavailable witness?

Answer 47

16(2) EA 2006 For the purposes of this subpart a person is unavilable as a witness in a proceeding if the person- (a) is dead (b) is outside of 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

Question 48

What is the test for admissability under S43 EA 2006?

Answer 48

Is whether 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

Question 49

Fairness and general exclusion, S8 EA 2006:

Answer 49

- 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

Question 50

Case Law: Balance of Probabilities

Answer 50

Miller v Minister of Pensions 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 probably than not. If the probabilities are equal, the burden is not discharged

Question 51

Judicial notice S128 and 129 EA 2006

Answer 51

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. S128 - is concerned only with facts that are facts in issue or relevant to a fact in issue S129 - codifies the common law exception to the hearsay rule, that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature

Question 52

In deciding whether to give permission for the prosecution to question the defendant about their veracity, the judge may take into account:

Answer 52

- the extent to which the defendants veracity or the veracity of a prosecution witness has been put in issue in the defendants 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

Question 53

Under S16(1) a business record means a document that is made:

Answer 53

(1) to comply with a duty or in the course of a business, and as a record or part of a record of that business (2) from information supplied directly or indirectly by a person who had or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied

Question 54

Define Privlege S59(1)(b)

Answer 54

This section does not apply in the case of 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

Question 55

Define corroboration S121 EA 2006

Answer 55

``` It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to the offences of: Perjury False oaths False statements and declarations Treason ```

Question 56

Rules on Oaths and Affirmations

Answer 56

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence S77 EA 2006 Witnesses under the age of 12 must- 1. be informed by the judge of the importance of telling the truth and not telling lies 2. after being given that information, make a promise to tell the truth, before giving evidence