Evidence Test - Notes PDF

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Evidence Test – NotesBurden and Standard of Proof - Which party has the evidential onus and which has the probative onus for the element? - To what standard must each of the elements be proved?Probative onus - Proving the issue - Reasonable - Presumption in an Act can put a probative onus on the D o...

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Evidence Test – Notes

Burden and Standard of Proof - Which party has the evidential onus and which has the probative onus for the element? - To what standard must each of the elements be proved? Probative onus - Proving the issue - Reasonable - Presumption in an Act can put a probative onus on the D on the BOP o E.g. presumption of possession to supply drugs Evidential onus - Producing enough evidence to make something a live issue – discharging the evidential onus - Worthy of the courts time raising the issue – duty to pass the judge - Proves on the BOP it occurred Prosecution elements - Elements of the offence - Evidential onus on P - Probative onus on the P – BRD - Woolmington o The position is therefore that the prosecution has the burden of proving BRD every element of a charge, as well as disproving any defence that is a live issue o Allocating the burden this way is consistent with the presumption of innocence - Two exceptions o S 23 presumption of sanity o Specific statutory exceptions Defence elements - Including general defences - Not AR or MR - Evidential onus on the D - Probative onus on the P (to disprove BRD)– unless specific statutory exception will be on the D on BOP - Don’t need to prove anything just point to evidence which could lead the jury to entertain reasonable doubt Examples of Statutory Exceptions - S 6 Misuse of Drugs Act– presumption to supply drugs o SC in Hansen held this presumption operated to place the probative onus on the D - S 23 Crimes Act – presumption of sanity - Look for; exception, exemption, excuse, proviso, justification How to figure out if it is a defence or prosecution element? - Is the act Innocent (except when…) – prosecution element - Is that act an offence (unless…) – defence element - The ‘mischief’ test o Is it what Parliament was intending to address? o Is the element a part of the mischief, without it would it be an offence? o If not, it is a prosecution element

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Categorise the element Explain the implications

Consequences - S 67(8) – going to be repealed as infringes right to be presumed innocent - If D element and JAT o D must prove the D element on the BOP - If D element in jury trial o D bears only the evidential onus - If P element o P must prove or disprove the element BRD in either proceeding Standard - BRD o Wanhalla  Sure the accused is guilty  Reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of an accused after careful and impartial consideration of all the evidence - BOP o More likely probable than not o D’s version is more likely than any other version Examples Section 27 of the Summary Offences Act 1981 Indecent exposure (1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals. (2) It is a defence in a prosecution under this section if the defendant proves that he or she had reasonable grounds for believing that he or she would not be observed. Prosecution elements - Subsection 1 - AR and MR - Prosecution has to establish including whether the person knew it was a public place o Has to prove everything in this section BRD Defence element - Subsection 2 - Defence has to prove on reasonable grounds on BOP they wouldn’t be observed - Specific stat exception - Shifts the probative onus to the defendant - “if the defendant proves” probative onus wording

Section 202A(4) of the Crimes Act 1961 Every-one is liable to imprisonment for a term not exceeding 2 years who, without lawful authority or reasonable excuse, has with him in any public place any knife…. Which elements are for the D to raise and make a live issue?

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Usually anything that looks like an exemption, exception, proviso or excuse, justification, qualification ‘without lawful authority or reasonable excuse’ o Is this element part of the offence itself, or something Parliament though could be a defence? o Would parliament have intended someone to be liable for that conduct? NO o Otherwise every time you went into a public place with a knife would be an offence o Appears to be a part of the mischief, without this it would not be an offence – prosecution element Prosecution element o Innocent unless you do it without lawful authority of reasonable excuse

HC appeal Judge notes s67(8) is going to be repealed For the prosecution to prove BRD that the authority or excuse didn’t exist, on the D to raise to make a live issue Only evidential onus on the D, has to make reasonable excuse or lawful authority a live issue McDonald – disagrees thinks it’s a prosecution element

Section 37 of the Summary Offences Act 1981 Disturbing meetings Every person is liable to a fine not exceeding $200 who, in any public place, unreasonably disrupts any meeting, congregation, or audience. Who must prove (and to what standard) the elements of this offence? - Prosecution element – P has to raise and prove they were in a public place when they disrupted - D element – ‘unreasonably’ ? o Apply the mischief test to see if it is a D element, take the word away and see if its needed to form part of the offence, if it’s what parliament intends to stop o Problem – start criminalising people for disrupting, infringes rights for freedom of expression o Mischief of the offence is that the disruption is unreasonable therefore it is a P element and they would have to establish BRD o Mischief = unreasonably disrupting

227 Being in possession of instrument for conversion Everyone is liable to… without lawful excuse has in his possession any instrument capable of being used for taking or converting any vehicle, ship, or aircraft with intent to use it for such purpose -

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The prosecution must raise and prove all elements of the offence BRD o Unless there is a specific stat exception Everything appears to be prosecution element except ‘without lawful authority or excuse’ Removing words, is parliaments intention still there? (mischief test) Did parliament intend to criminalise this kind of behaviour o Taking away intent, would people be included that shouldn’t be? o People who have jobs e.g. locksmith o The act is an offence unless (d) having the ‘bad stuff’ is an offence unless o Standalone defence element – D will have to establish they had lawful authority o If P element – P would have to establish all the elements and that there is no lawful excuse Everything is prosecution except that and the defence has the evidential onus to make it a live issue

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If you take the words away and that seems like a bad thing of itself doesn’t matter, that there is a dew AA people might get caught up along the way, therefore it is an offence unless

Curle v Police - Stopped in stolen car, had stolen number plates, in the car two screwdrivers, a hammer and a pair of gloves – containing D’s DNA - Could be several reasons someone has these in their car for innocent purposes. The issue is the intent and the purposes for. 36 Lighting fires Every person is liable to a fine not exceeding $200 who, without reasonable excuse, sets fire to any material or substance near any structure or vegetation (of which he is neither the owner or the occupier) in such a manner as to be likely to cause damage to the structure or vegetation. Elements - Are there any express statutory exceptions? - Any D elements? – ‘without reasonable excuse’ - Determine if D element or part of mischief of the act and for P to prove? - Take the words away – looks like something terrible to do, stands alone without those words – bad thing in itself - Appears to be a defence element – D has to make that a live issue

11 Wilful damage (1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who intentionally – (a) Damages any property… (2) For the purposes of subsection (1) of this section, a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification ... Elements - Crime when you intentionally damage any property (2) defines the MR of the offence – prosecution element - Even though it includes ‘without lawful justification’ it is working as a P element o Because it is up to the prosecution to prove o Because part of the definition of the MR

Section 100A of the Civil Aviation Act 1990 Burden of proof of exceptions, etc, for offences in rules and regulations (1) This section applies to any offence contained in rules or regulations made pursuant to this Act. (2) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence (a) may be proved by the defendant; but (b) need not be negatived in the charging document, and, whether or not it is so negatived, no proof in relation to the matter is required on the part of the prosecutor. -

Anywhere where there is an offence if there is an excuse, the probative onus is on the D

Section 75 of the Land Transport Act 1998 Certificates in blood-alcohol proceedings

(1) … production of a certificate to which this section applies in proceedings for an offence against this Part is sufficient evidence, in the absence of proof to the contrary, of such of the matters as are stated in the certificate and of the sufficiency of the authority and qualifications of the person by whom the certificate is made and, in the case of a certificate referred to in subsection (5), of the person who carried out the analysis. Elements - Example of a presumption - Use of ‘proof’ shifts the probative onus onto the Defence - The ‘certificate’ is proof unless the D proves it is not valid on the BOP

Section 8 of the Summary Offences Act 1981 Publishing document or thing explaining manufacture of explosives, etc (1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding [$2,000] who, for the purposes of sale or distribution to the public, prints or publishes or makes any document or thing (not being a document or thing of a technical, scientific, literary, or artistic character) that describes or depicts the method of manufacture of any explosive device or incendiary device or [restricted weapon (within the meaning of section 2 of the Arms Act 1983)], or any part of any such device or weapon. (2) It is a defence in a prosecution under this section if the defendant proves that it was reasonable in all the circumstances to print or publish or make the description or depiction to which the prosecution relates. Element questions - Argument about mischief - Specific stat exceptions where D has probative onus - Who has evidential onus and probative onus and to what standard Criminal offence - Usual rule is prosecution has to prove something BRD - Usually defence don’t have to prove anything unless stat exception - Stat exception – look for language of proof - Prosecution elements – defence elements – stat exceptions Defence Elements - Defence elements – D has to make it a live issue, once they have done this the P has to disprove that element BRD - Statutory exception because it says ‘it is a defence’ – if uses this language you know it is an expectation and D would have to raise and prove everything in (2) - Defence element – (2) ‘proves that it was reasonable in all the circumstances’ - Prove – key word it is a statutory exception, placing the probative onus on the D - D has the evidential and probative onus on the BOP Prosecution elements - (1) ‘purposes of sale or distribution to the public’ - ‘describes or depicts the method of manufacture of any explosive device or incendiary device, or any part’ - Makes any document or thing o Raise and prove it o P must discharge evidential onus and prove BRD - ‘(not being a doc or thing of a technical, scientific, literary, or artistic character)’

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Can be arguable for both, leans more to prosecution element, also there is already a defence in (2) meaning Parliament have already considered a defence If you take it away is it still a bad thing of itself? Yes – D element Doesn’t matter what decision you come up with as long as you make the argument to come to that decision

Three exceptions to requirement evidence must be offered by the parties: - Presumptions o Where proof to some degree is needed to rebut the legal presumption (for example, the presumption of sanity, section 23 of the Crimes Act 1961. No evidence of sanity is required.) - Admissions o When a party admits facts, thereby dispensing with the need to call evidence on the fact. Formal admissions of this nature are usually made in writing in civil proceedings. o See 34 of the Evidence Act 2006 - Judicial notice o A proxy for proof by admissible evidence – is confined to “indisputable” questions of fact, for example, facts generally accepted by the community at large or ascertained from reliable sources which command popular respect. A fact “so notorious that it cannot be the subject of serious dispute” Wood [1981] 2 NZLR 233, 235. Some examples from case law include: cats are domestic pets; young boys have playful habits; a fortnight is too short a period for human gestation. An unsuccessful example is in the case of Kapi (the defence of necessity case studied in criminal law) in which counsel tried to get the court to take judicial notice of the “violent nature of life in Porirua”. o The Evidence Act 2006 codifies the common law rules: sections 128 and 129.

Civil proceedings - The party who wants the court to take action on a particular issue bears the responsibility of proving to the court why it should take such an action – so in the absence of any admissions by the defendant (for example, in the pleadings) the plaintiff must prove all the elements of the civil action (and has the evidential onus). The D will usually bear the burden of proof where D goes beyond making mere denials and raise positive defences or counter-claims. Standard of proof - In civil cases the standard is on the balance of probabilities – more likely than not, more probable than not. If two explanations are equally likely then the burden is not discharged. - The balance of probabilities is not between the parties – it does not mean D’s explanation is more likely than P’s: it must be that D’s version is more likely than any other version. - Two exceptions o Contempt of court or when allegations of crimes or serious misconduct are made in civil proceedings – standard said to be approaching BRD, commensurate with the gravity of what is alleged. o This is contentious – for discussion of the debate see Mahoney “Evidence” [2005] NZ Law Review 69ff. See also the judgment of Elias CJ in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 (SC).

Role of the Judge and Jury

Jury trial - Judge o Controls the proceedings o Directs the jury about the law o Judge decides what evidence the jury hears and can tell them to disregard certain information o Asks the witnesses questions which is usually for clarification o Gives the jury any warnings about how they should give weight to particular evidence (s 123) o Plays no role in determining the verdict - Jury o Determining questions of fact – are the fact-finders o Instructed on substantive law to apply and how to appropriately use and give weight to evidence o Cannot do own investigation e.g. finding out if they defendant had previous convictions o Jury may also ask questions of the witnesses (will be written down and given to registrar then the Judge which will then be determined whether the question is appropriate) o Apply the law to the facts, determining the verdict Judge alone trial - Judge o Basically doing everything therefore can be conflicting at times o Both gate-keeper and decision maker in these trials o Gwaze  All rules of exclusion provided by the Act are binding on all judges  They prescribe standards to be observed

Section 5 – Application (1) If there is an inconsistency between the provisions of this Act and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise. (2) Despite subsection (1), if there is any inconsistency between rules of court made under any enactment with the concurrence of 2 or more members of the Rules Committee and this Act, the provisions of this Act prevail. (3) This Act applies to all proceedings commenced before, on, or after the commencement of this section except— (a) the continuation of a hearing that commenced before the commencement of this section; and (b) any appeal from, or review of, a determination made at a hearing of that kind - This act is subject to any other act if there is a consistency (1) - Only exception is the high court rules - The act applies to proceedings, the definition in turn relies on the definition of courts

Section 4 – Interpretation proceeding means— (a) a proceeding conducted by a court; and (b) any interlocutory or other application to a court connected with that proceeding

- All of those things are covered by the act. court includes the Supreme Court, the Court of Appeal, the High Court, and any District Court - Other things such as tribunal, family court etc have their own ability to disregard the act. offer evidence includes eliciting evidence by cross-examining a witness called by another party - when crown calls witness and gets information it is known as the crowns evidence not the witness. But if the defence then cross examine the person their info becomes defence evidence statement means— (a) a spoken or written assertion by a person of any matter; or (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter witness means a person who gives evidence and is able to be cross-examined in a proceeding give evidence means to give evidence in a proceeding— (a) in the ordinary way, as described in section 83; or (b) in an alternative way, as provided for by section 105; or (c) in any other way provided for under this Act or any other enactment

Section 9: 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 - Means that parties can agree between themselves about things which removes the need to further clarify or determine them. - Still subject to s8, the Judge retains the ability to allow that information to be admissible or inadmissible. - Hazelwood v R

Section 13: establishment of relevance of document - If a question arises concerning the relevance of a document, the Judge may examine it and draw any reasonable inference from it, including an inference as to its authenticity and identity Section 14: 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 which establishes its admissibility Section 11: Inherent and implied powers not affected (1) The inherent and implied powers of a court are not affected by this Act, except to the extent that this Act provides otherwise. (2) Despite subsection (1), a court must have regard to the purpose and the principles set out in sections 6, 7, and 8 when exercising its inherent or implied powers - Yes you have the inherent powers, but also have to regard the principles in ss 6,7,8

Section 10: Interpretation of the act (1) This Act— (a) must be interpreted in a way that promotes its purpose and principles; and

(b)

(2)

is not subject to any rule that statutes in derogation of the common law should be strictly construed; but (c) may be interpreted having regard to the common law, but only to the extent that...