Admissibility and the principles of evidence law Flashcards
Determining admissibility
Evidence is admissible if it can be legally received by a court. If evidence
cannot be received, it is inadmissible. No particular standard of proof attaches
to decisions as to admissibility of evidence unless a particular provision of the
Evidence Act 2006 provides for it (for example s45 of the Evidence Act
relating to the admissibility of identification evidence). The judge decides on
admissibility.
In R v Burrows11 the Court held that “The party wishing to bring the evidence
has the burden of showing the evidence is admissible. It is illogical to require
the Crown to show admissibility beyond reasonable doubt because
circumstantial facts do not have to be proved to that standard. Admissibility is
essentially a question of law which has no room for the application of varying
standards of proof. Any evidence on which an individual juror might rely in
reaching a conclusion as to guilt is admissible.”
In deciding whether evidence is admissible, the courts have reference to
certain principles of evidence law. These are drawn from common law and
find their way into various provisions of the Evidence Act 2006:
* relevance
* reliability
* unfairness
Relevance
The fundamental condition for the admissibility of evidence is that it must be
relevant. Section 7 provides that:
7 Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
Relevant evidence is defined as any “evidence that has a tendency to prove or
disprove anything that is of consequence to the determination of the
proceeding” (s7(3)). It includes direct evidence and circumstantial evidence.
It excludes any extraneous matters that do not relate to the precise issue or
issues to be determined by the court. Evidence can be admitted on any basis
for which it is relevant.
This means that, whereas irrelevant facts will always be inadmissible,
relevant facts are not always admissible. For facts to be received in evidence,
they must be both relevant and admissible. For example, evidence that was
improperly obtained may be relevant, but may not be admissible under s30 of
the Evidence Act 2006.
If the judge decides that a piece of evidence is relevant then, subject to any
other legal rules of inadmissibility or exclusion, the party will be entitled to
present the evidence in the proceeding. However, once received, the degree of
probative force, or “weight”, to be given to the evidence is a question for the
judge alone or for the jury.
Evidence that is not relevant will not be admissible. However, as stated at the
start of this section, the fact that evidence is relevant does not necessarily
mean that it will be admitted into evidence; it may be inadmissible or
excluded under the Act or any other Act. Inadmissibility or exclusion will
usually be due to a lack of reliability, fairness, public interest, or a
combination of these factors. Relevance is therefore a necessary, but not a
sufficient, condition of admissibility under the Evidence Act 2006.
Reliability
Although unreliability is not a general ground of inadmissibility, the Act
contains specific exceptions to this. Therefore, relevant evidence may
sometimes be excluded - or if admitted may attract a judicial warning because
it is regarded as unreliable (s122 is the primary section dealing with this). The
Act contains some exclusionary rules that look to reliability, including rules
relating to hearsay and identification evidence. For this reason, it is important
to ensure that evidence obtained is reliable.
Fairness, and the general exclusion under s8 Evidence Act 2006
Even though evidence is relevant, it may be excluded if it would result in
unfairness. Unfairness can cover a variety of situations and is a matter of
discretion for the trial judge. It usually arises in two ways:
- 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 well lead to its exclusion under the
fairness discretion.
General exclusion provision
It is to the first type of unfairness that the general exclusion provision in s8 is
directed:
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is
outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the
Judge must take into account the right of the defendant to offer an effective defence.
Section 8 sets out a general requirement for exclusion of evidence that is
otherwise relevant and not excluded or rendered inadmissible by some
specific provision of the Act or any other Act. It is intended to help a judge
manage the length of a trial and/or ensure fairness of the proceeding. The
judge has to conduct a “weighing up” process under s8(1). However, once he
or she decides that s8(1)(a) or (b) apply, the requirement of general exclusion
is mandatory (“must exclude”).
Section 8 test
The s8 test involves balancing the probative value of evidence against the risk
that it will:
* have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or
* “needlessly prolong the proceeding” (s8(1)(b)).
Evidence that would have an unfairly prejudicial effect on the proceeding
Evidence will be admitted under s8 if its probative value outweighs the risk of
any unfairly prejudicial effect on the proceeding, or if it is strong enough to
justify a prolonging of the proceeding.
The risk of “unfair prejudice” will typically refer to the danger that a trier of
fact will give some piece of evidence more weight than it deserves, be misled
by evidence, or use evidence for an illegitimate purpose. The s8 focus allows
exclusion of evidence that is unfair for either party’s case, or is likely to be
unfair for the proceeding as a whole by drawing jury members away from the
real issues in the trial.
Under s43, there is a similar balancing exercise, with specific focus on the
prejudicial effect on the defendant, where the prosecution wish to offer
propensity evidence about the defendant.
Evidence that would needlessly prolong the proceeding
Section 8(1)(b) excludes evidence that will needlessly prolong the
proceedings (for example where a defendant wishes to call 20 witnesses to
give evidence as to his or her veracity, section 8(1)(b) could be used by the
judge to limit the evidence to one or two witnesses).
Take into account the right of the defendant to offer an effective defence
The assessment under s8(1)(a) “must take into account the right of the
defendant to offer an effective defence” (s8(2)). This reflects s25(e) (the right
of criminal defendants to present a defence) and s25(a) (the right to a fair
trial) of the New Zealand Bill of Rights Act 1990. Nothing in s8(2) requires
the admission of evidence where its unfairly prejudicial effect on a
proceeding is held by a court to outweigh its probative value in the case.
However, in finely balanced cases, s8(2) may make a difference – either to
allow admissibility where the defence wish to offer the evidence, or to find
that the evidence is inadmissible where prosecution evidence may risk an
illegitimate prejudicial impact on the defence case.
Admission by agreement
Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if
it is not otherwise admissible, where the parties agree. The Court in R v
Hannigan12 highlighted that the Judge retains control of this process and may
decline to admit the evidence even if all parties agree to its admission, or not
allow its admission in the form agreed to by the parties.
Provisional admissibility and evidence on ‘hearing in chambers’
Section 14 of the Evidence Act 2006 provides that, where a question arises
concerning the admissibility of any evidence, the judge may admit the
evidence, subject to further evidence being offered later which establishes its
admissibility. If the other evidence required to establish admissibility is not
forthcoming, the provisionally admitted evidence must be excluded from
consideration.
Section 15 of the Evidence Act 2006 governs evidence given by a witness to
prove the facts necessary for deciding whether some other evidence should be
admitted in a proceeding. Such a hearing is commonly referred to as a
‘hearing in chambers’, or ‘chambers hearing’, particularly where the jury is
excluded from the courtroom for the duration of the admissibility hearing.
Facts determined at a hearing in chambers are sometimes referred to as
‘preliminary facts’, or ‘preliminary hearing’.
Section 15 applies to all witnesses (not only defendants), and to evidence
given in any type of hearing held to determine the admissibility of evidence.
Evidence given at a ‘hearing in chambers’ will be admissible in other stages
of the proceeding only if the evidence given by the witness at this hearing is
inconsistent with the witness’s subsequent testimony at another stage of the
same proceeding. It is admissible in order to demonstrate the inconsistency.
Limited use of evidence and use for multiple purposes
The Evidence Act 2006 allows evidence to prove “anything that is of
consequence to the determination of the proceeding” (s7(3)).
Admissible evidence may be used in different ways and for different purposes
in a proceeding, not necessarily only for the purpose for which it has been
admitted.
The Supreme Court in Hart v R13 has confirmed this approach, stating that
“the statute proceeds on the basis that generally speaking evidence is either
admissible for all purposes or it is not admissible at all.”
This general rule is subject to various provisions of the Act specifically
limiting the use to which some evidence can be put, such as:
- s27, which controls the use of pre-trial statements of defendants and codefendants
- s31, which forbids the prosecution from relying on certain evidence
offered by defendants in a criminal case - s32, which forbids the fact-finder from using a criminal defendant’s pretrial silence as evidence of guilt.
To minimise the danger that the trier of fact will misuse the evidence, the
2006 Act provides for directions which allow (or require) judges to warn
juries against reliance on some types of evidence for certain purposes, such as
s124 (warning about evidence that the defendant has lied).
Summary
- The aim of the Evidence Act 2006 is to help secure the just determination
of proceedings. - All facts in issue and facts relevant to the issue must be proved by
evidence. The two exceptions are where judicial notice is taken of facts,
and when facts are formally admitted. - In deciding whether evidence is admissible, the courts have reference to
certain principles of evidence law. These include:
− relevance
− reliability
− unfairness. - For facts to be received as evidence they must be both relevant and
admissible. - Relevant evidence is defined as any evidence that has a tendency to prove
or disprove anything that is of consequence to the determination of the
proceeding (s7). - Section 8 sets out a general requirement for exclusion of evidence that is
otherwise relevant and not excluded, or rendered inadmissible by some
specific provision of the Act or any other Act. The s8 test involves
balancing the probative value of the evidence against the risk that it will
have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or
“needlessly prolong the proceeding” (s8(1)(b)).
