3 - The Exclusive Rules Of Evidence

Question 1

What do the exclusive rules of evidence deal with?

Answer 1

Veracity
Propensity
Hearsay
Opinion
Identification
And properly obtained evidence

In addition, there is also the section 8 Test probative value versus prejudicial effect on proceeding

Question 2

Veracity definition

Answer 2

A disposition to refrain from lying

One of two classes character evidence

Question 3

Propensity definition

Answer 3

Attend to act in a particular way

Question 4

Veracity rules

Answer 4

Section 37
Veracity rules
(1)
A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
(2)
In a criminal proceeding, evidence about a defendant’s veracity must also comply with section 38 or, as the case requires, section 39.
(3)
In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a)
lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b)
that the person has been convicted of 1 or more offences that indicate a propensity for 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.
(4)
A party who calls a witness—
(a)
may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b)
may offer evidence as to the facts in issue contrary to the evidence of that witness.
(5)
For the purposes of this Act, veracity means the disposition of a person to refrain from lying

Question 5

Substantial helpfulness

Answer 5

In order to be a admissible veracity evidence must be substantially helpful and assessing the veracity of the person.

The test applies to evidence and chief and that elicited through cross-examination

Question 6

When is substantial helpfulness not a sufficient test?

Answer 6

With the prosecution wish to offer evidence about a defendants veracity s38

and where a defending offers the evidence about a co - defendant

Question 7

When can you offer evidence of a defendant veracity?

Answer 7

Prosecution must show that veracity is relevant

The defendant has offered evidence about his or her veracity by testimony or questioning witnesses,or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue

The proposed evidence must meet the substantial helpfulness Test

The prosecution must get permission from the judge to offer the evidence

Judge may take an account the timelapse since any convection whether any evidence given by the defendant about the veracity was elicited by the prosecution

and the extent to which the defendants veracity or the veracity of a prosecution witness has been put in issue in the defendants evidence

Question 8

Propensity rule

Answer 8

Section 40

Propensity rule
(1)
In this section and sections 41 to 43, 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 tried; or
(ii)
the cause of action in the civil proceeding in question.
(2)
A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3)
However, propensity evidence about—
(a)
a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b)
a complainant in a sexual case in relation to the complainant’s sexual experience, sexual disposition, or sexual reputation may be offered only in accordance with sections 44 to 44A.
(4)
Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

Question 9

What does propensity evidence include?

Answer 9

Propensity as to actions
Propensity as to state of mind

Question 10

Propensity evidence does not include

Answer 10

Evidence of an act or a mission that is one of the elements of the offence for which the person has been tried

Evidence that is solely or mainly about veracity this is governed by the veracity rule

Question 11

Propensity evidence about defendants

Answer 11

Section 41:
1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2)
If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
(3)
Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).

Question 12

When can the prosecution offer propensity evidence about a defendant?

Answer 12

S41

If the defendant offers propensity evidence about himself or herself

NOTE the door is not open by defence attack on the propensity of a prosecution witness

Question 13

Propensity evidence offered by prosecution about defendants - requirement for admission:

Answer 13

Evidence must:
Constitute propensity events there is evidence that tends to show a person propensity to act in a particular way or have a particular state of mind being evidence of act admissions events or circumstances with which that appeal as alleged to have been

Have probative value in relation to an issue in dispute

Have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 14

How to determine probated value of propensity evidence?

Answer 14

For admissible propensity evidence the probative value must outweigh the risk that the evidence may have unfairly prejudicial affect under the defendant.

The greater the linkage or coincidence provided by the evidence the greater the pro value that evidence is likely to have .

The judge must also take into account the nature of the issue and dispute and the linkage act in this manner

Question 15

Hearsay statement defined

Answer 15

Statement that was made by person other than a witness

and

it offered in evidence at the proceeding to prove the truth of its contents

Question 16

Define statement

Answer 16

Spoken or written assertion by a person of any manner or non-verbal conduct of a person that is intended by that person as an assertion of any matter

This means unintended assertions are not statements and so are not hearsay statements

Question 17

Why is hearsay statement ‘other than a witness’ important?

Answer 17

The definition of hearsay means that out of court statements made by a witness are able to be cross examined and are not hearsay

Question 18

Hearsay - the purpose for which evidence is offered:

Answer 18

A statement offered for some other purpose for example, merely to show that the statement was made is not a PSA statement and need not meet the hearsay admissibility test.

Hearsay statement as offered to prove the truth of its content.

Doctor example- hearsay to say that patient X sufferered chest pains, but not hearsay to outline why they might in concluding they had angina

Question 19

Hearsay Rule

Answer 19

Section 17
Hearsay rule
A hearsay statement is not admissible except—
(a)
as provided by this subpart or by the provisions of any other Act; or
(b)
in cases where—
(i)
this Act provides that this subpart does not apply; and
(ii)
the hearsay statement is relevant and not otherwise inadmissible under this Act.

Question 20

General admissibility of hearsay

Answer 20

Section 19

General admissibility of hearsay
(1)
A hearsay statement is admissible in any proceeding 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 that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2)
This section is subject to sections 20 and 22.

Question 21

What are the two key criteria for admissibility of a heasrsay statement?

Answer 21

-Reliability

and

-unavailability/and your expense delay would be caused

Question 22

Why does hearsay evidence lack reliability?

Answer 22

The maker is not a witness, therefore there is no opportunity to cross examine them.

The jury cannot evaluate the evidence properly without being able to see the demeanour of the person who made the statement .

There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people the game of Chinese .

There is a real danger of attributing and deserve weight evidence which cannot be adequately or properly tested .

Question 23

Section16(1) Circumstances in relation to a statement by person who is not a witness - how to determine if it is reasonably reliable?

Answer 23

The nature of the statement
The contents of the statement
The circumstances that relate to the making of the statement
Any circumstances that relate to the veracity of the person
Any circumstances that relate to the accuracy of the observation of the person

This can be used when determining whether the circumstances relating to the statement provided reasonable assurance that is reliable

Question 24

Define unavailable as a witness?

Answer 24

-Dead
-Outside of New Zealand and not reasonably practical to be a witness
-is unfit to be a witness because of age or physical woman mental condition
-Cannot reason will diligence be identified or found
-is noted to give evidence

Question 25

Define unavailable as a witness?

Answer 25

-Dead
-Outside of New Zealand and not reasonably practical to be a witness
-is unfit to be a witness because of age or physical woman mental condition
-Cannot reason will diligence be identified or found
-is noted to give evidence

Question 26

Admissibility of hearsay statements contained in business records

Answer 26

19 Admissibility of hearsay statements contained in business records
(1)
A hearsay statement contained in a business record is admissible if—
(a)
the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b)
the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c)
the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
(2)
This section is subject to sections 20 and 22.

Question 27

Notice of hearsay in criminal proceedings:

Answer 27

Section 22:

Notice of hearsay in criminal proceedings
(1)
In a criminal proceeding, no hearsay statement may be offered in evidence unless—
(a)
the party proposing to offer the statement has complied with the requirements of subsections (2), (3), and (4); or
(b)
every other party has waived those requirements; or
(c)
the Judge dispenses with those requirements.
(2)
A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating—
(a)
the party’s intention to offer the hearsay statement in evidence; and
(b)
the name of the maker of the statement, if known (subject to the terms of any witness anonymity order); and
(c)
if the hearsay statement was made orally, the contents of the hearsay statement; and
(d)
if section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and
(e)
if section 19 is relied on, why the document is a business record; and
(f)
if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and
(g)
if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness; and
(h)
if section 19(1)(b) is relied on, why no useful purpose would be served by requiring the person to be a witness; and
(i)
if section 22A is relied on, why the 3 matters comprising the required threshold in that section are satisfied.
(3)
If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.
(4)
The requirements of subsections (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.
(5)
The Judge may dispense with the requirements of subsections (2), (3), and (4) if,—
(a)
having regard to the nature and contents of the statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b)
compliance was not reasonably practicable in the circumstances; or
(c)
the interests of justice so require.

Question 28

Definition of business record (S19)

Answer 28

Document that is made :

• to comply with a duty or in the course of business, and as a record or part of a business record.

-from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have a personal knowledge of matters dealt with in the information he or she supplied.

Includes a statement made to a Police Officer recorded in their notebook

Question 29

The opinion rule

Answer 29

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

Question 30

What is the rationale of the opinion rule?

Answer 30

• Where a witness offers a bare opinion it hold little probative weight
• there is a danger the witness offering opinion evidence will ‘usurp’ the function of the tribunal which is to draw the necessary inferences from facts presented in evidence
• a witnesses opinion may be based on only inadmissible evidence

Question 31

General admissibility of opinions - non expert

two key criteria

Answer 31

A witness may state an opinion in evidence in a proceeding 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.

Criteria:

1) only way to effectively communicate

2) stating an opinion from something personally perceived

Can be hard to separate inference and fact

Question 32

Admissibility of expert opinion evidence:

Answer 32

Section 25
(1)
An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
(2)
An opinion by an expert is not inadmissible simply because it is about—
(a)
an ultimate issue to be determined in a proceeding; or
(b)
a matter of common knowledge.
(3)
If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.
(4)
If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person’s state of mind, then—
(a)
the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
(b)
neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.
(5)
Subsection (3) is subject to subsection (4).

Question 33

Key points for expert evidence:

Answer 33

• Qualification as an expert
  -be expert evidence
  -likely to obtain substantial help
• If based on proven facts, information will need to be proven or Judicial Notice

Question 34

Expert opinion- sanity

Answer 34

Section 25 (4)
Provides for the admissibility of a persons statement about his state of mind in order to establish the factual basis for the experts opinion on the sanity of that person. It Limits its scope to opinions based on statement made by the person who is sanity is an issue thereby excluding statements by others or statements pertaining to mental disorders for short legal insanity. The statement must be about the persons state of mind therefore statements informing the experts opinion made about other issues will not be covered by 25 (4)

Question 35

Conduct of experts

Answer 35

• an expert must state has or her qualifications
• The facts matters and assumptions on which opinions expressed must be stated explicitly
• The reasons for opinions must be stated explicitly
  -Literature or other material use or relied on to support opinions must be referred to by the expert
  -Expert witness must state if they believe his or her evidence may not be accurate without some qualification
  -Must be impartial
  -not an advocate for either party

Question 36

Notice requirement expert

Answer 36

Defence must disclose expert they wish to call at least 14 days before the trial