2.Elements of Evidence

Question 1

What is the purpose of the Evidence Act and its 6 objectives?

Answer 1

The purpose of the Act is to help secure the just determination of proceedings by-

a) Providing for facts to be established by the application of logical rules
b) Providing rules of evidence that recognise the importance of the rights affirmed by the NZ Bill of Rights Act 1990
c) Promoting fairness to parties and witnesses
d) Protecting rights of confidentiality and other important public interests
e) Avoiding unjustifiable expense and delay
f) Enhancing access to the law of evidence.

Question 2

What is meant by circumstantial evidence?

Answer 2

is a fact from which the judge or jury may infer the existence of a fact in issue. As such it offers indirect proof of a fact in issue.

Question 3

What is the general rule of evidence?

Answer 3

the general rule of evidence is that all facts in issue and facts relevant to the issue must be proved in evidence.

Question 4

What is meant by judicial notice?

Answer 4

when the court 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

Question 5

What is meant by facts formally admitted?

Answer 5

in a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed.

Question 6

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These include?

Answer 6

• relevance
• reliability
• unfairness

Question 7

What must facts be in order to be received as evidence?

Answer 7

they must be both relevant and admissible

Question 8

What may happen if evidence is regarded as unreliable?

Answer 8

relevant evidence may sometimes be excluded – or if admitted may attract a judicial warning because it is regarded as unreliable.

Question 9

Even though evidence is relevant, it could be excluded if it would result in unfairness. How can unfairness arise?

Answer 9

• if it would result in some unfair prejudice in the proceeding
• where it has been obtained in circumstances that would make admission against the defendant unfair.

Question 10

The general exclusion (s8) deals with excluding evidence based on unfair prejudice. What does the test say?

Answer 10

the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will:

• have an unfairly prejudicial effect on the proceeding
• needlessly prolong the proceeding.

Question 11

What are the exceptions to the general rule of evidence?

Answer 11

There are two main exceptions to the general rule when no evidence needs to be given of facts because:

• judicial notice is taken
• the facts are formally admitted.

Question 12

What is meant by presumptions of law?

Answer 12

these are inferences that have been expressly drawn by law from particular facts. They may be either conclusive or rebuttable.

Question 13

What is meant by presumptions of fact?

Answer 13

those that the mind naturally and logically draws from the given facts. They are simply logical inferences and are always rebuttable.

Question 14

What is a voir dire (preliminary facts)?

Answer 14

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. It is conducted without a jury being present.

Question 15

If evidence is admitted, for what purpose can it be used?

Answer 15

it can generally be used for all purposes. Generally speaking evidence is either admissible for all purposes or it is not admissible at all.

Question 16

What is meant by facts that prove the charge?

Answer 16

The facts must prove the elements of the charge and the evidence should be made up of facts that prove the charge. These should take into consideration what evidence is relevant and what evidence will help prove the guilt of the person charged.