3. The Exclusive Rules of Evidence

Question 1

Section 37 of the Evidence Act sets out the veracity rules:

When may a party offer veracity evidence?

What must a judge assess?
LLC IBM

Answer 1

1. Party may not offer evidence of veracity unless substantially helpful in assessing that persons veracity.
2. In assessing the evidence, Judge may consider whether proposed evidence tends to show: (Substantially Helpful Test)
   a- lack of veracity of the person when under a legal obligation to tell the truth
   b- convictions for 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.

Question 2

38 Evidence of defendant’s veracity

1. Defendant
2. Prosecution
3. Judge ETEE

Answer 2

(1) A defendant may offer evidence about his or her veracity.

(2) The prosecution may offer evidence about a defendant’s veracity only if -
(a) the defendant has offered veracity evidence or has challenged the veracity of a prosecution witness. and
(b) the Judge permits the prosecution to do so.

(3) Judge may take into account
(a) - extent the veracity put in issue in defendants evidence
(b) time lapse since conviction
(c) whether evidence was elicited by the prosecution

Question 3

Section 40 Propensity rule
What is propensity evidence 1(a)
1(b)?

Whats the general rule regarding Propensity evidence? (3)

Answer 3

(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 related to the offence or the proceeding

General Rule:
(3) Party may offer propensity evidence about any person. however, may only be offered in accordance with S41 - 44

Question 4

Propensity evidence about defendants – s41 Evidence Act 2006

41 (1) ?

41 (2)

Answer 4

(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself. (Good character evidence)

allows defendants to offer:
* evidence of disreputable conduct about themselves
* neutral propensity. (attending a class every Tuesday for last 1 year)

(2) the defendant opens the door to rebutting evidence from the prosecution or another party (with the permission of the judge).

Question 5

When may Propensity evidence be offered by prosecution about defendants – s43(1)

What may the judge consider when assessing value of propensity evidence ? - Section 43(3), Evidence Act 2006
FCS NCSU

What must a judge consider? (4)

Answer 5

(1) Propensity may be offered only if it has probative value towards the issue that outweighs the risk of prejudicial effect

(3)
a- the frequency of AOEC have occurred
b- connection between AOEC of evidence and current offence
c- extent of similarity between AOEC of evidence and current offence

d- number of persons making allegations against defendant that are same, similar to subject of offence being tried
e- whether allegations in (d) are result of collusion or suggestibility
f- extent to which AOEC of evidence and current offence are unusual.

(4) Judge must consider:
unfairly predispose the fact-finder
fact-finder disproportionate weight in reaching verdict

Question 6

What is Hearsay (4)

Section 18 General admissibility of hearsay - RUDE!
CAR WU ED

Answer 6

“a statement made by a person other than a witness and offered in evidence to prove the truth of its contents”

18 - RUE
(1) A hearsay statement is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers undue expense or delay if statement maker were required. x

Question 7

Issues with hearsay is reliability
Why?

how can police satisfy statement is admissible?
The circumstances to consider under section 16(1) of the Evidence Act 2006, include:

Answer 7

• No opportunity to cross examine witness
• juries cannot evaluate evidence properly
• Mistakes about the meaning or content of statements made by other people.

16(1)
- the nature of the statement;
- the contents of the statement;
- the circumstances relating to the making of the statement;
- circumstances relating to the veracity of the person; and
- circumstances relating to the accuracy of the observation of the person.

Question 8

Unavailability or undue expense and delay
A person is unavailable as a witness in a proceeding if the person— Section 16(2)

5 points

Answer 8

• Dead
• Outside New Zealand, not reasonably practicable to be witness
• is unfit because of age or physical or mental condition;
• cannot be identified or found; or
• is not compellable to give evidence.

Question 9

Section 22
A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating

Answer 9

• intention to offer
• name
• contents
• reliability, reasons for unavailability, or undue expense

Question 10

Section 23 - Opinion rule.

The general exclusionary rule
The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence.
What is the justification for that rule?

LUCO

Answer 10

23- A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.

• witnesses opinion holds little probative weight
• Danger that opinion evidence will “usurp” the function of the court and confuse court thus.
• Opinion may be based on other evidence which would be inadmissible.

Question 11

Section 24 - General admissibility of opinions
A witness may state an opinion if

Section 25 - Admissibility of expert opinion evidence
In order to comply with s25, the opinion must?

Answer 11

24- A witness may state an opinion if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

25-
*be that of an “expert”
*comprise “expert evidence”,
*offer substantial help to the fact-finder in understanding evidence or ascertaining fact.

Question 12

Define Expert

Where an expert is called to give specialised evidence, they must

Answer 12

Expert- someone with specialised knowledge or skill based on training, study or experience

The expert must demonstrate to the court that they have the qualifications to be deemed an expert