Short Answers

Question 1

What are the two exemptions to the burden of proof being on the Prosecution?

Answer 1

• Where the defence of insanity is claimed, Section 23(1) CA
• Express Statutory exemptions exist. Some offence provisions shift the burden of proof of specific defences to the Defendant
• The offence is a public welfare regulatory offence

Question 2

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

Answer 2

(a) 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 one or more offences that indicate a propensity for dishonesty or a 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

Question 3

Define ‘Circumstantial Evidence’

Answer 3

Circumstantial Evidence - 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

Question 4

Define ‘presumptions of law’ and ‘presumption of fact’

Answer 4

Presumptions of law - Are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable

Presumptions of fact - Are those that the mind naturally and logically draws from the given facts. They are always rebuttable

Question 5

Define Circumstances - S 16(1) EA 2006

Answer 5

Circumstances in relation to a statement by a person who is nat a witness includes -

(a) That nature of the statement; and
(b) The contents of the statement; and
(c) The circumstances that relate to the making of the statement; and
(d) Any circumstances that relate to the veracity of the person; and
(e) Any circumstances that relate to the accuracy of the observation of the person

Question 6

Why is opinion evidence 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 he facts presented in evidence. The opinion evidence could confuse the tribunal of fact and prolong he proceeding
(3) A witness’s evidence of opinion may be based on other evidence which, if stated expressly would be inadmissible

Question 7

Describe privilege and give two examples

Answer 7

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

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

Section 8 sets out the general requirement for exclusion of evidence that is otherwise relevant and not excluded or rendered inadmissible by some specific provisions of the Act or any other Act. It is intended to help a Judge manage the length of a trial and/or ensure fairness of the proceeding.

The s8 test involved balancing the probative value of evidence against the risk that it will

• Have an unfairly prejudicial effect on the proceeding (s8(1)(a)), or
• needlessly prolong the proceeding (s8(1)(b)).

Question 9

Expert opinion evidence(s25). The opinion must:

Answer 9

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 or ascertaining any fact in the proceeding

Question 10

Three (3) reasons why s85, EA ‘06 Leading Questions are not permitted?

Answer 10

The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:

(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 and genuineness of their testimony
(3) There is a danger that leading questions will result in the manipulation or counsel a construction of the evidence through collusion conscious or otherwise, between counsel and the witness

Question 11

What are four reasons that evidence in rebuttal can be recalled?

Answer 11

Such leave may be given to the Prosecution if the further evidence:

(1) Relate to a purely formal matter
(2) Relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen
(3) Was not available or admissible before the prosecutions case was closed
(4) Is required to be admitted in the interests of justice for any other reason

Question 12

What are five types of unacceptable questions?

Answer 12

S85 - In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers:

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

Question 13

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

Answer 13

Corroboration - Indépendant évidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged

(1) s108 Perjury
(2) s73 Treason

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, and
(2) After being given that information, make a promise to tell the truth, before giving evidence

Question 15

Explain two ways of giving evidence:

Answer 15

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, an edit is the personal statement of the deponent or maker

Alternative Way - In a courtroom but unable to see the defendant or other person, outside the courtroom, or by video recording made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio visual link AVL) where some or all of them are not physically present at the place of hearing for all or part of the proceeding.

Question 16

What is the purpose of cross examination

Answer 16

There are 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.

Question 17

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

Answer 17

Section 4, Evidence Act 2008
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 in 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 called the witness: or
- 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 18

What are the four principles of admissibility?

Answer 18

In deciding whether evidence is admissible, the Courts have reference to certain principles of law. These are drawn from common la and find their way into various provisions of the Evidence Act 2006:

(1) Relevance
(2) Reliability
(3) Unfairness
(4) Public Interest

Question 19

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

Answer 19

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

Question 20

Explain the term, “Facts that prove the charge?”

Answer 20

The facts must prove the elements of the charge and the evidence should be made up of facts that prove the 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 21

What are four of the six exclusive rules of evidence

Answer 21

(1) Veracity - A disposition to refrain from lying
(2) Propensity - A tendency to act in a particular way
(3) Hearsay - A statement that is made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents.
(4) Opinion - A statement of opinion that tends to prove or disprove a fact
(5) Identification
(6) Improperly obtained evidence

Question 22

Define the following terms:

• Facts in Issue

- Witness

Answer 22

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

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

Question 23

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

Answer 23

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

Question 24

Explain Reasonable doubt and balance of probabilities - Include the part in the module where it says ‘it means:’

Answer 24

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 to met only if at the end of the case, you are sure 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 the evidence.

Balance of probabilities is the standard of proof required for the defence to prove a particular element of the case. It must simply show that to os more probable than not. If the probabilities are equal, the burden is not discharged/

Question 25

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

Answer 25

A leading question is one that directly or indirectly suggests a particular answer to the question (s4) eg. answer yes or no - The general rule is that leading questions may not be asked during evidence in chief or re-examination

Question 26

When are leading questions permitted?

Answer 26

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, or (b) the question is put with the consent of all parties, or (c) the Judge, in exercise of the Judges discretion, allows the question

Question 27

Explain a 'Voir dire"?

Answer 27

A Voir Dire is 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.

Question 28

What is the Judge's role in a trial by Jury

Answer 28

When a Judge is presiding over trial by Jury, he or she must: - 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 29

Can a witness refresh their memory before Court? Explain

Answer 29

S90(5) EA '06 provides that for the purposes of refreshing his or her memory while giving evidence, a witness may with prior leave of the Judge, consult a document made or adopted at the time when his or her memory was fresh. If a witness wishes to consult a document while giving evidence, the following condition must be satisfied: The following conditions must be satisfied: - The leave of the judge must be obtained - The document must 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 her memory was fresh

Question 30

What is presumption of fact and given an example?

Answer 30

Presumptions of fact are those that the mind naturally and logically draws from given facts. Example: One presumes that a person has guilty knowledge if they have possess of recently stolen goods

Question 31

What is the purpose of evidence law and give 4 examples

Answer 31

s6 - 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 recognised the importance of the rights affirmed by the NZBOR 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

Question 32

Define 'Hearsay Statement'

Answer 32

S4 EA '06 - A statement that: (a) Was made by a person other than a witness; and (b) Is offered in evidence at the proceeding to prove the truth of its contents

Question 33

Define expert witness

Answer 33

s4 EA '06 - A person who has specialized knowledge or skill based on training, study or experience. The judge must determine whether the expert is properly qualified to testify

Question 34

What are the 2 exemptions to the general prohibition on previous consistent statements

Answer 34

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 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 s35(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; and (b) The statement provides the Court with information that the witness is unable to recall

Question 35

s40(1) Propensity - What does 'Propensity evidence' mean? And what does it exclude s40(1)(b)?

Answer 35

s40 (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) One of the elements of the offence for which the person is being charged (ii) the cause of the action in the proceeding in question

Question 36

s125(1) - Does a Judge gave to give a warning re:directions about evidence given by children?

Answer 36

S125(1) - 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 absence of corroboration of the evidence of the complaint if the Judge would not have given that kind of warning had the complainant been an adult

Question 37

What is the purpose of cross examination?

Answer 37

There are two purposes of cross examination: - To elicit information supporting the case of the party conducting the cross-contamination - To challenge the accuracy of the testimony given in evidence in chief

Question 38

S122(2) Judge must consider giving a warning whenever the following evidence is given:

Answer 38

In a criminal proceeding tried with a Jury, the Judge must consider whether to 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 where 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 od that conduct is alleged to have occurred more that 10 years previously

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 two alternative ways of giving evidence

Answer 40

- In the Court room but unable to see the Defendant or other person - Outside the Courtroom - By video recording made before the hearing

Question 41

Are all people eligible and compellable to give evidence?

Answer 41

A witness is eligible if they are lawfully able to give evidence on behalf of both 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 42

Define what is meant by unavailable witness s16(2)?

Answer 42

s16(2) For the purpose of this subpart, a person is unavailable as a witness in proceeding if the person - (a) is dead, or (b) Is outside NZ 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

Question 43

Fairness and General exclusion s8, EA '06

Answer 43

Even though evidence is relevant, it may be excluded if it would result in unfairness. It usually arises in two ways - (1) Evidence may be excluded if it would result in some unfair prejudice in the proceeding (2) Evidence not prejudicial in itself in terms of actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the Defendant unfair.

Question 44

Define Balance of Probabilities

Answer 44

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 probable that not. If the probabilities are equal, the burden is not discharged

Question 45

Define judicial Notice - S128& 129 EA '06

Answer 45

When a Court takes judicial notice of a fact, it declared 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. Eg. Rather than calling an expert witness to swear Christmas is on 25 December, Judicial notice would be taken of the date. S128 - Is concerned only with facts that are facts in issue or relevant to the fact in issue S129 - Codifies the common law exemption 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 46

In deciding whether to give permission for the prosecution to question the Defendant about their veracity, the Judge must take into account:

Answer 46

S38(3) (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.

Question 47

Under s16(1), a business record means a document that is made:

Answer 47

(1) To comply with Duty or in the course of business, and as 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 matters dealt with in the information he or she supplied.

Question 48

Define Privilege s59(1)(b) Medical Practitioner and clinical psychologists

Answer 48

S59(1)(b) - 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 or for any other purpose

Question 49

Define Oaths and Affirmations

Answer 49

(1) Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (S77) (2) witnesses under the age of 12 must: - 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

Question 50

Define Previous consistent statement rule S35(3) EA '06

Answer 50

S35(3) EA '06 - A previous statement of a witness that is consistent with the witness's evidence is admissible if: (a) The circumstances relating to the statement provide reasonable assurance that the statement is reliable, and (b) The statement provides the Court with information that the witness is unable to recall.

Question 51

What is the test for admissibility of Propensity Evidence under s43 EA '06?

Answer 51

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 unfairly prejudicial effect on the Defendant.