The Trial Notes

Evidence: 23rd March: OUTLINE 2: THE TRIAL Voir Dire: Trial within a trial. Deals with whether pieces of evidence are admissable. Comes up most often in cases with admissability of confession. Meyrick: - Trial at court, admissability of evidence - Mayrick asked for voir dire Trial judge said no. Appealed to HC, when the judge said 'no', breached my right of silence - s25(d) BORA - person shall not be compelled to be a witness. Argument was accepted. Evidence you give at a voir dire is not admissable at the trial - Defendant, if he or she wants, can get up and testify. Should be able to feel safe that your testimony won't be admissable, so then you don't have to get up and testify at trial. Breached right of silence because practically forced to get up in the witness box and testify. HC judge agreed. S15: Evidence you give at a voir dire is inadmissable unless evidence is inconsistent with what's said at the trial proper. It becomes admissable because of the inconsistency, s15(b) otherwise not admissable. s15(a) Evidence given on voir dire is admissable if inconsistent with trial proper, no matter whether it was ruled admissable or not at voir dire. S83 Ordinary way for a witness to give evidence in court: orally testifying. s83(b) In criminal cases, can be an affidavit, or reading a written statement, if agreed to by prosecution and defence. In civil cases, can read a written statement. S83(2) Affidavit or written statement can only be given if sworn by maker of statement. S79 Support persons - People who sit with the witness in question for moral support. Criminal victims can have one too. No reaction when the witness answers questions, and can't speak. S80 Communication assistants - s4 definition: translating, communication disability). Person has the right to understand the evidence given. Willeman: - Sexual violation, woman violated man - Victim was tetraplegic - Woman perfomed oral sex on him without consent - Can only communicate by moving his big toe. Judge can order evidence be given not in the ordinary way. Did it by video feed. Defence didn't want toe translator to be one of the victim's regular carers (might be biased). Couldn't really do it like this though, because nobody else would know how to do it. S87 Special permission needed to get witnesses adress repeated in court. In sex cases, victim won't have to give occupation unless relevant to the case, e.g. sex worker. S103 Power to let evidence be given in an alternative way to orally. Child sex abuse cases only in the past. Now, available for any witness/any proceeding. S103: (1) If victim is likely to be absent from NZ, can give evidence in an alternative way, namely video link up. (4)(b)(ii) Need to promote recovery of complainant for offence (judge should consider this) s105 Alternatives: (1)(a) Screen, video link up (1)(a)(iii) video record must be made before the hearing Took what was just child sex abuse cases and made it allowable for all cases. S106 Video Record: Before the Act only child cases, (evidence in chief covered only), then had to sit in witness box for cross examination. Cross examination can be video now? Law comission didn't mean to change the law, s103(1) seems to suggest victim can even be cross examined by video somewhere else. S105(2) Doesn't give the same impression. S107 Judge must consider every case with a child complainant whether child's evidence should be given in an alternative way. S108109: Keeping undercover cops identities secret. Only for indictable offences. Commissioner of Police issues certificate saying who the undercover cop is, sets out convictions if any, and credibility issues, if any. S110119 - Witness anonymity: Only indictable offences can invoke this. Judge can make an order to keep a witness anonymous. 25th March: Stages of a Trial: Crown calls evidence first, then defence. S98 (1) Must get permission from judge (2) May not grant permission under (1) if any unfairness caused by granting permission can not be remedied in costs/ajournment (3) Reasons for letting crown open the case (very discretionary) R v Sweeney: Too late on appeal to contest Crown bringing rebuttal evidence. s98(3)(b) Defence always gets the last word to the jury. S67 Summary Proceedings Act - Unless the Court otherwise directs, neither party may sum up his case or address the court upon the evidence given by either party. Civil: If the defence calls no evidence, he or she gets the last say. If the defence does call evidence, he or she argues first, right after defence evidence. S367 Generally crown will call witnesses, then the defence. (1)(c) When the crown calls an expert, defence can call their expert right away instead of after the crown has finished.

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