3. The Exclusive Rules of Evidence

Question 1

Rules of Admissibility are rules of Law…what case law supports this?

Answer 1

R v Gwaze…It was made clear in the Supreme Court that rules of admissibility including sections 7 and 8 are not matters of discretion. Although they involve questions of judgement they “Prescribe standards to be observed”.

Question 2

Veracity and Propensity

The relationship between veracity and propensity rules

Answer 2

Veracity - is the disposition of a person to refrain from lying and

Propensity is a tendency to act in a particular way

The rules to not apply to evidence about a person’s veracity if veracity is an element of the offence for which the person is being tried. (eg perjury)

They don’t apply to bail or sentencing hearings except when the evidence is covered by section 44 (sexual cases etc)

Question 3

Veracity

What section sets out veracity rules?

Answer 3

Section 37

Question 4

May a party offer evidence in a civil or criminal proceedings about a person’s veracity?

Answer 4

Yes, on the grounds that the evidence is substantially helpful to assessing that person’s veracity.
(subsection 1)

Question 5

What is outlined in section 37(2)?

Answer 5

In a criminal proceeding evidence about a defendant’s veracity must also comply with sections 38 and 39

Question 6

In section 37(3) what may a Judge consider when making a decision whether the evidence is “SUBSTANTIALLY HELPFUL” in assessing veracity?

Answer 6

May consider among any other matters whether the proposed evidence tends to show 1 or more of the following matters?

(a) a lack of veracity on the part of the person when under a legal obligation to
tell the truth. (eg: 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 dishonesty or lack of veracity
(c) any previous inconsistency around statements made by that person.
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.

Question 7

Under section 37(4) what may a party do who calls a witness?

Answer 7

a) may not offer evidence to challenge a witness’s veracity unless the Judge declares that witness to be hostile. BUT
b) may offer evidence as to the facts in issue contrary to the evidence of that witness.

Question 8

What is in section 37(5)?

Answer 8

For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 9

What is the SUBSTANTIAL HELPFULNESS test?

Answer 9

To assess the veracity of a person. It has a higher threshold than relevance, it has to be more than just have a “tendency”.

Judge may consider only matters pointed out in 37(3) (a) to (e).

There is no automatic right to ask a witness if they have been convicted of an offence. This will have to meet the substantial helpfulness test.

In R v K it was suggested that someone’s reputation is for veracity is potentially admissible under section 37 but the substantial helpfulness threshold will only be met in exceptional cases.

Substantial helpfulness test is not a sufficient test in two instances:

• where the prosecution which to offer evidence about a defendant’s veracity (s38) and
• where a defendant offers veracity evidence about a co-defendant (s39)

Question 10

Section 38 - Evidence of Defendant’s Veracity.

Can a defendant offer evidence of his or her veracity?

Answer 10

Yes under subsection 1 of 38 it allows this.

Question 11

Can Prosecution offer veracity evidence for the defendant?

Answer 11

Section 38(2) allows Prosecution to do so if

• the defendant has offered veracity evidence of himself or has challenged the veracity of any other prosecution witness by reference other than the facts in issue:

AND

the judge permits the prosecution.

Question 12

Under Section 38(3), what may the Judge take into account in determining permission for Prosecution to give veracity evidence?

Answer 12

Subsection 3

a) the EXTENT to which the defendant’s veracity or the veracity of a prosecution witness has been PUT IN ISSUE in the defendant’s evidence;
b) the time that has ELAPSED since any conviction about which the prosecution seeks to give evidence;
c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 13

In summary what must be in place that evidence is able to be offered about the defendant’s veracity?

Answer 13

Under section 38

1 - Prosecution must show that the veracity evidence is
relevant and that the veracity is an issue.

2 - That the defendant has offered evidence of himself / herself or challenge the veracity of prosecution witness by reference to matters other than the facts in issue.

3 - the proposed evidence meets the SUBSTANTIAL HELPFULNESS test.

4 - Prosecution must get permission from the Judge

Question 14

In deciding to give permission under section 38(3) what may the judge take into account:

Answer 14

• The extent to which the veracity evidence by the defendant or prosecution evidence has been put in issue in the defendant’s evidence.
• The time lapse since any conviction about which the prosecution seek.
• whether any evidence given by the defendant has been elicited by the prosecution.

Question 15

Can prosecution attack the defendant’s veracity evidence if a prosecution witness’s veracity has been attacked?

Answer 15

Yes, but prosecution cannot offer evidence attacking the veracity of the defendant if it is in REFERENCE to any of the facts in issue.

Question 16

PROPENSITY - Section 40 to 43

How is propensity define in the Act?

Answer 16

Section 40(1) points out that propensity evidence means

That section 41 41 43 defines Propensity as:

40(1)(a)(b)
- means evidence that tends to show a particular way a person acts, state of mind, being any evidence of acts, omissions, events or circumstances in which the person is alleged to have been involved in

BUT

Does not include evidence of acts or omissions-

• 1 of the elements of the offence in which that person is being tried; or
• any cause of action in the proceeding in question.

Question 17

Can any party offer evidence of propensity in a civil or criminal proceedings?

Answer 17

Yes under section 40(2) it allows any party to offer propensity.

Question 18

What does section 40(3) outline for a Judge to consider

when assessing probative value of propensity evidence?

Answer 18

Among other matters,

• a frequency….
• the connection of time
• similarity in…
• number of person making the allegation…
• whether there was any collusion or suggestibility by the people making the complaint
• the extent of the evidence being unusual.

Question 19

What must the Judge consider among any other matters when assessing prejudicial effect?

Answer 19

In section 40(4) it points out

• whether the evidence will likely unfairly predispose the fact-finder from the defendant and
• whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 20

What was found in Court in the case of Rei v R?

Answer 20

The requirements for the admission of propensity evidence under section 43.

• Propensity evidence must constitute propensity and it tends to show a person acts in a particular way, state of mind, being evidence of acts, omissions, events and any circumstances in which the person is alleged to have been involved with.
• Have a probative value in relation to an issue in dispute and other matters that may be relevant inclduing those prescirbed in section 43(3) and
• Have a probative value that outweighs the risk that the
  evidence will have an unfair prejudicial effect on the defendant.

Question 21

In relation to propensity, what was found in Mv R et alia?

Answer 21

That the judge must identify the relevance of the evidence, outline the completing positions of the parties and want the jury against illegitimate reasoning processes.

Question 22

Probative Value and Prejudicial Effect

Points to remember

Answer 22

Mahomed v R

there must be a concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the provative value that evidence is likely to have.

Question 23

What should the Courts do around propensity?

Answer 23

It should focus on the terms of the Act which codifies the previous law.

In Mahomed v R the marjority of the Supreme Court stated that “we do not consider a great deal is now to be gained from an examination of pre-Evidence Act.

Question 24

In relation to section 43(2) what does the Judge do?

Answer 24

The Judge must take into account the issue in dispute. The Court in Vuletich gave recognition to the fact that the test should be tailored to each individual case.

Question 25

What section does the Judge have to consider certain factors while assessing prejudicial effect?

Answer 25

Section 43(4)

The Judge must consider the risk outlined. IF the Judge identifies there is a risk of prejudicial effect on the defendant then it has to be weighed up against the probative value of the evidence.

Question 26

HEARSAY

What is the definition of Hearsay?

Answer 26

Section 4

Hearsay is a statement that

• is made by a person other than a witness; and
• is offered in evidence at the proceeding “to prove the truth of its contents”

Question 27

What is the definition of a statement?

Answer 27

A statement is;

• a SPOKEN or a WRITTEN ASSERTION by a person of any matter, or
• a non verbal conduct of a person that is intended by that person as an assertion of any matter.

Question 28

Is a hearsay statement admissible?

Answer 28

No, only if there is an exception for admissibility under the Evidence Act or any other Act; or where there is express provision that the hearsay rules do not apply. (section 17 Evidence Act )

Question 29

Out of Court statements are admissible on what grounds?

Answer 29

They give evidence and are available to be cross-examined. This also applies if the statement maker does not give evidence in chief on the statement made out of Court.

Question 30

Does an unintentional statement or assertion qualify as a statement?

Answer 30

No there has to be an intention to make that non verbal conduct to be an assertion. So if it is not a statement then it is not a hearsay statement.

Question 31

What is the purpose for which evidence is offered?

Answer 31

The focus of the hearsay rule is on the purpose for which the evidence is offered, rather than just the fact that the statement was made out of Court, is not a hearsay statement and need not meet the hearsay admissibility test in section 18 EA Act.

Question 32

Hearsay Rule - what section is it?

Answer 32

Section 17 which sets out the exclusionary rule for hearsay.

Question 33

What is the admissibility in section 17?

Answer 33

(1) A hearsay 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 34

What is the general admissibility of hearsay?

Answer 34

Section 18 covers this, 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 cause if the maker of the statement were required to be a witness.  

Hearsay is admissible if the statement is reasonably assurance that it is reliable and

either

• the maker of the statement is unavailable or
• calling the witness will cause an undue delay and expense.

AND this is subject to section 20 and 22

Question 35

Reliability for hearsay?

Answer 35

Rule against hearsay would be determined on the lack of reliability of the hearsay evidence this is due to the following:

• Witness not being called will not be given the opportunity to give evidence.
• the rule addresses the concern that the juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
• there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people
• The reason for the rule’s existence is there fore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 36

What does “reasonable assurance” mean?

Answer 36

It relates to the reliability of evidence that it will reliable enough for the fact-finder to consider it, and draw its own conclusions as to the weight to be placed on the evidence.

Question 37

Circumstances - Section 16(1) Evidence Act 2006 defines

Answer 37

Circumstances from a person who is not a witness include:

• the nature of the statement and
• the contents of the statement, and
• the circumstances that relate to the making of the
  statement, and
• any circumstances that relate to the veracity of the person; and
• any circumstances that relate to the accuracy of the observation of the person.

This is a non-exhaustive definition. It provides the list of matters the court should consider when determining whether the circumstances relating to the statement provide reasonable assurance that the statement is reliable.

Question 38

What defines unavailable as a witness?

Answer 38

Under section 16(2) it defines it as:

a- dead or
b- outside of new zealand and not reasonably practicable to call as a witness
c- Unfit to be a witness due to age, physical or mental condition
d- Cannot with reasonable diligence be identified or found
e- is not compellable to give evidence.

Question 39

Is there a provision that prevents a party from deliberately interfering with a witness being found or unavailable to be found or identified?

Answer 39

Yes - Section 16(3) outlines that subsection 2 does not apply to a person whose statement is sought to be offerred in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

Question 40

What is the section that relates to hearsay statements contained in business records?

Answer 40

Section 19 - They are admissible if:

(a) The who supplied the information is not available as a witness or
(b) the Judge considers no useful purpose to call that person as that person cannot be reasonably expected to recollect the information 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 41

Under Section 19(1) a business document means?

Answer 41

a document that is made:

• to comply with a duty or in the course of business, and as a record or part of a record of that business
• from information supplied directly or indirectly, by a person who had, or may reasonably be supposed by the court to have had, a personal knowledge of the matters dealt with in the information being supplied

Question 42

Is there a threshold of reasonable assurance involved with section 19?

Answer 42

No there isn’t however a challenge can be posed and it may be excluded under section 8.

Question 43

Notice requirement has to be submitted before any statements under section 18 or 19 be admitted, what section outlines the requirements?

Answer 43

Section 22 - No hearsay statement may be offered in evidence unless:

(1) (a) parties proposing the evidence has complied with requirements of subsections 2, 3, and 4 OR
(b) every other party has waived those requirements OR
(c) the JUDGE dispenses with those requirements.

Question 44

Under section 22(2) what is required for a party to propose to offer a hearsay statement?

Answer 44

(2) A party who proposes to offer hearsay statement in a criminal proceeding MUST provide every party with a written notice stating:
(a) the intention to offer hearsay 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 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 reasonable assurance that the statement is reliable AND
(e) if section 19 is relied on, why the business 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 be caused if the person were required to be a witness.

Question 45

If the hearsay statement was made in writing what must accompany the notice under section 22(2)

Answer 45

Subsection 3 points out that the written hearsay statement must accompany the notice.

Question 46

Is there a time requirement for subsection 2 and 3 (Section 22)?

Answer 46

Yes in 22(4) it stipulates that to comply with subsection 2 and 3 must give sufficient time for the other parties to give a fair opportunity to respond to the statement.

Question 47

Can a Judge dispense with the requirements set out in section 22 (2) , (3) or(4)?

Answer 47

Yes, the Judge may dispense the requirements having:

(a) regards 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 48

What is the rationale for the notice of requirements for hearsay statements?

Answer 48

Is to encourage admissibility decisions concerning hearsay to be made at pre-trial.

Question 49

OPINION RULE

What section is the general exclusion rule for Opinion Rule?

Answer 49

Section 23, it states that an opinion is not admissible, except as provided by in section 24 or 25.

Basically that opinions are not admissible to prove the truth of what is believed or inferred. The premise of the general rule of exclusionary rule is that a witness’s opinions, beliefs or inferences are not their perceptions, but are conclusions drawn from those perceptions.

Question 50

What does the Act define “Opinion” as?

Answer 50

Section 4 - it is a statement that tends to prove or disprove a fact.

Question 51

For opinion, what is the rationale behind the exclusionary rule?

Answer 51

To prevent the admission of unreliable, superfluous or misleading evidence. To admit such evidence would present doubtful relevance and waste of court time.

Question 52

What is included in the justification of the opinion exclusionary rule?

Answer 52

• Where a witness offers a bare opinion it holds little probative weight.
• The danger of the witness causing USURP the function of the tribunal of fact, which will draw unnecessary inferences from the facts presented in evidence. The opinion could confuse the tribunal of fact and prolong the proceedings.

Question 53

What are the sections are the exception to the exclusionary rule for opinion? (23)

Answer 53

Section 24 or 25. It can be assumed that if these sections are satisfied then it should also satisfy any other rules set out in the Act (for example - propensity rules)

Question 54

(Non-expert opinion evidence)

What does section 24 relate to?

Answer 54

It covers off the General admissibility of opinions.

It states:

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.

Question 55

In section 24 what is the criteria for the opinion to be admissible?

Answer 55

There are two basic criteria:

• Opinion must be the only way in which to effectively communicate the information to the finder of fact.
• the witness must be stating an opinion (be it conclusion, inference etc…) from something personally perceived.

Question 56

In the end what will have non-expert opinions accepted?

Answer 56

Is where perceptions and statements of fact of the witness are conclusions in themselves, or where there is a mixture of inference and fact that cannot be separated.

Question 57

Admissibility of expert opinion evidence - what section governs the admissibility of this opinion?

Answer 57

Section 25 -

(1) An opinion of an expert that is part of expert evidence offered in a proceedings is admissible if the fact-finder is likely to obtain substantial help from the opinion in the understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceedings.

(2) An opinion by an expert is not inadmissible simply because it is about -
(a) an ultimate issue to be determined in a proceedings or
(b) a matter of common knowledge.

(3) If the opinion by the expert is based on a fact outside of 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 the 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 or 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 58

If evidence is opinion evidence what must be in order for to comply with section 25?

Answer 58

The opinion must be:

• that of an expert
• comprise of expert evidence and
• offer substantial help to the fact finder in understanding other evidence or any facts in proceedings

Question 59

What does section 25 only concern?

Answer 59

It is only concerned with the admissibility of an expert opinion evidence. Expert evidence may consist of fact, opinion or a mixture of both. Factual evidence from an expert will be governed only by the general rules in ss7 and ss8 and any other admissibility rules applicable in the individual case.

Question 60

What does the Act define EXPERT as?

Answer 60

Section 4 defines expert as a person who has specialized knowledge or skill based on training, study or experience. The judge must determine whether the expert witness is properly qualified to tesitify: opinions given by non experts on matters calling for expertise are inadmissible.

It is upto the expert to show to the Court that they possess the requisite qualification to be deemed expert in the field in question. It should be within their area of expertise. They may have received formal study and training, from experience, or both.

Question 61

What is likely to obtain substantial help (Section 25(1)

Answer 61

• this will help the fact finder to understand other evidence OR
• in ascertaining any fact that is of consequence in the determination of the proceeding.

Question 62

What was found in B v R - this relates to Substantial Help ?

Answer 62

The Court held that it necessitates consideration of an amalgam of relevance, reliability and probative value.

Question 63

Evidence based on proven facts - Does opinion based on facts need to be proven?

Answer 63

Yes it does, if the opinion is based on facts that are outside the general body of the information it will need to be proven.

In R v Turner the Court sad that:

Before the court can assess the value of an opinion it must know that the facts upon which it is based. Counsel calling an expert should in examination in chief ask the witness to state the facts upon which his opinion is based. It is wrong to leave it up to the other side to facts by cross-examination.

Question 64

The conduct of experts - Should expert witnesses be impartial in their assistance to the court?

Answer 64

Yes, In r C Hutton the Court of Appeal approved principles similar to those for experts in civil cases. These principles summarise much of the discussion of s 25 -

• expert must state his/her qualification
• facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
• any literature or other material used or relied on to support opinions must be referred to by the expert
• if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated.
• an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, AND
• an expert is not an advocate for any party.

Question 65

Under the Criminal Disclosure Act 2008 introduced an obligation on the defence to give notice of expert evidence in criminal proceedings. Under section 23, what is the least amount of days that the defence have to provide a brief or summary?

Answer 65

At least 14 days before a fixed trial date.

Question 66

Summary Point 3

The exclusive rules of evidence deal with?

Answer 66

• Propensity
• Veracity
• Hearsay
• Opinion
• Identification
• Improperly obtained evidence

Question 67

Summary Point 3

The Evidence Act 2006 divides what was called character evidence into?

Answer 67

• propensity - a tendency to act in a particular way or have a state of mind
• veracity - a disposition to refrain from lying

Question 68

Summary Point 3

The two criteria for admissibility of hearsay are?

Answer 68

Reliability and unavailable - or that undue delay or expense would be caused.

Question 69

Summary Point 3

In criminal proceedings a notice of hearsay must be served on the other parties, and what is the purpose of this?

Answer 69

To allow the other party to have sufficient time to respond to the statement.

Question 70

Summary Point 3

What is the exception for opinion evidence not being admissible?

Answer 70

Section 23 outlines that section 24 or 25 are admissible.

Question 71

Progress Test 3

What is the propensity Rule of Evidence?

Answer 71

Section 40

Stipulates that propensity in section 41, 42, 43 means evidence,

(1) (a) evidence that tends to show a person’s propensity to act in a particular way, have a state of mind, being evidence of acts, omissions, events or circumstances that the person is alleged to have been involved in,
(b) but does not include acts or omissions

(i) is one of the elements of the offence or
(ii) any cause of action in the proceedings in question

(2) A party may offer propensity evidence about any person.
(3) However evidence about:

(a) a defendant in a criminal proceeding may be offered only in accordance with section 41, 42 or 43 and
(b) a complainant in sexual cases about their sexual experience may only be offered in accordance with section 44.

(4) Evidence that is solely veracity or mainly relevant to veracity is governed by rules set out in the veracity rules under section 37, this section does not apply to evidence of that kind.

Question 72

Progress Test 3

2. What is the definition of a hearsay statement in Evidence Act 2006

Answer 72

Section 4 defines Hearsay as:

A statement made by a person other than a witness and is offered in a proceeding to prove the truth of its contents.

Question 73

Progress Test 3

3. Define an expert under section 4 of the Evidence Act?

Answer 73

An expert under section 4

A person who has specialised knowledge or skill based on training, study or experience.