Flashcards in Short Answers Deck (45)
Define the following terms :
Facts in Issue and Witness
The facts in issue are the facts which in law need to be proved to succeed with the case. In criminal case the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.
Facts and issue are those which:
- The prosecution must prove to establish the elements of the offence or
- The Defendant must prove to succeed with defence, in respect of which he or she carries the burden of proof.
This is a person who gives evidence and is able to be cross - examined in a proceeding.
What did the case Woolmington V DPP establish in relation to the presumption of innocence?
It was held that the prosecution has a duty to prove the prisoners guilt, subject to the defence of insanity and subject to any statutory exception. The burden of proof lies clearly with prosecution in relation to all the elements of the offence
Explain reasonable doubt/balance of probabilities -
The crown must prove that the accused is guilty beyond 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.
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 the evidence.
Balance of probabilities 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.
Define hostile witness
Hostile witness is defined in section 4 of the evidence act 2006, in relation to a witness means the witness
Exhibits or appears to exhibit, a lack of veracity when giving evidence unfavorable 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 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.
Define leading question and what is the general rule in relation to leading questions?
The evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4)
The general rule is that a leading question may not be asked during evidence in chief or re examination (s89)
There is no comprehensive test for whether a question is leading, but examples include questions that seek a "yes or no" answer.
When are leading questions permitted?
89 leading Questions in examination in chief and re examination
(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 or
(b) the question is put with the consent of all other parties or
(c) the judge in exercise of the judges discretion allows the question.
(2) Subsection (1) does not prevent a judge if permitted by rules of court from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.
Explain a voir dire?
Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly refereed to as a "Voir Dire", particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes refereed to as preliminary facts.
Describe privilege and list four categories of privilege?
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 advisers Section 54
Solicitors trust accounts section 55
Preparatory Materials for proceedings section 56
Settlement negotiations or meditations section 57
Communications with ministers of religion section 58
information obtained by medical practitioners and clinical psychologists section 59
Judges role in trial by jury
When a judge is presiding over a trail by jury, he or she must:
Decide all questions concerning the admissibility of the 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.
Can a witness refresh their memory in court - explain
If a witness wishes to consult a document while giving evidence the following conditions designed to ensure so far as possible the accuracy of the document must be satisfied.
The leave of the judge must be obtained
The document must be shown to every other party in the proceeding
Section 90 (5) requires the document to have been "made or adopted" by a witness "at a time when his or her memory was fresh". Whether a document was made while the memory was fresh depends on the circumstances of the individual case.
What is 'Presumption of fact' and give an example
Presumption of fact are those that the mind naturally and logically draws from the given facts. For example one presumes that a person has guilty knowledge if they have possession of recently stolen property.
Purpose of evidence law - give four examples
Section 6 Evidence Act 2006 Purpose
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.
Define hearsay statement -
A statement that -
(a) was made by a person other than a witness and
(b) is offered in evidence at the proceedings to prove the truth of its contents
Define expert witness
Section 4 of the Act defines an "expert" as a "person who has specialized knowledge or skill based on training, study or experience". The judge must determine whether the expert witness is properly qualified to testify.
What are the two exceptions to the general prohibition n previous consistent statement (section 35 of the evidence Act 2006)
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
Section 40 (1) propensity - What does propensity evidence mean? and what does it exclude 40 (1) (b)
40 Propensity rule
(1) In this section and sections 41 to 43, 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
Explain the Section 8 test
The section 8 test involves balancing the probative value of evidence against the risk it will:
have an unfairly prejudicial effect on the proceeding (SB (a) (a) or
needlessly prolong the proceeding (s8 (1) (b)
Evidence will be admitted under section 8 if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding or if it is strong enough to justify a prolonging of the proceeding.
Explain section 125 (1) Does a judge have to give a warning
Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults. Thus it prohibits:
• the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
• any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.
List examples of unacceptable questions
85 Unacceptable questions
(1) 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 language that is too complicated for the witness to understand.
What is the purpose of Cross Examination
There are two purposes 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 (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).
Section 122 (2) types of evidence that may be unreliable list four
(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
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.
List and describe two alternative ways of giving evidence
In the court room but unable to see the defendant or other person
Or by video recording made before the hearing
Evidence may be given in the following ways
- the ordinary way
the alternative way such as by video link.
Two cases where evidence is excluded about prejudicial and relevant evidence
7 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.
What are two exceptions to the burden of proof being on prosecution?
There are some exceptions to the general principle of burden of proof, which means that in some cases it reverses and falls on the defendant including where,
The accused wishes to rely on the defence of insanity
Specific statutory exceptions exist
Explain the two prongs of relevance (materiality and probativeness)
Two prongs of relevance can be broken down into two prongs:
Materiality asks whether the evidence in the case is offered on a matter or a a fact at issue (of consequence to the determination of the proceeding section 7 (3)
probativeness asks whether the evidence has a logical "tendency to prove or disapprove" the material proposition on which it is offered section 7 (3)
Describe two matters which the judge may consider in determining whether veracity evidence is substantially helpful.
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, 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.
Define Circumstantial evidence
This is evidence of circumstances that do not directly prove any fact in issue, but which allows inferences about the existence of those facts to be drawn (e.g the defendant was seen in the vicinity of the scene of the crime)
Define presumption 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.
For example, a conclusive and irrebuttable presumption would be that a child under ten years of age is unable to be convicted (Crimes Act 1961, section 21(1)). These are, in effect, rules of substantive law as they refer to the substance of the law rather than the procedure contained in the law. A rebuttable presumption would be that all defendants are innocent until proven guilty.