8 - Evidence

Question 1

Even though evidence is relevant, it may be excluded if it would result in some unfairness to the party against whom it is admitted. Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:

Answer 1

• evidence may be excluded if it would result in some unfair prejudice in the proceeding.
• evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may lead to its exclusion under the fairness discretion.

Question 2

In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will..

Answer 2

(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding

Question 3

Witnesses who are 12 years of age or older must..

Answer 3

take an oath or affirmation before giving evidence.

Witnesses under the age of 12:
•must be informed by the Judge of the importance of telling the truth and not telling lies (there is no requirement for a judge to determine a child’s understanding of the difference between truth and lies or of the importance of telling the truth: R v Tanner [2007] NZCA 391); and
•must, after being given that information, make a promise to tell the truth, before giving evidence.

Question 4

Where the judge is satisfied that the witness should be able to give evidence in an alternative way, he or she may direct that the witness gives evidence:

Answer 4

• while in the courtroom but unable to see the defendant or some other specified person (this will include methods such as use of screens and one way mirrors)
• from an appropriate place outside the courtroom, either in New Zealand or elsewhere
• by a video record made before the hearing of the proceeding.

Question 5

Section 18: main exception to hearsay rule

Answer 5

Section 18 makes it clear that there are two criteria for admissibility:
• reliability and
• unavailability or undue expense or delay