Ariroa - Ev Flashcards

Question

Fundamental principle that relevant evidence admissible

Answer 1

(3) Evidence is relevant in a proceeding if it has a tendency to prove / disprove anything that is of consequence to the determination of the proceeding.

Answer 2

There must be some logical connection between the evidence and the fact it is said to prove. Relevant evidence may include direct evidence and circumstantial evidence (Ev doesn't directly prove anything but infers about such proof).

Answer 3

If judge dcyds a pece of Ev is rlevnt, sbjct 2 any thr lgl rles of nadmsblty / xclsn, th prty wl b nttld 2 prsnt Ev n prcdg. Rlvnc s ncsry bt nt sfcint cndtn of admsblty U 2006 Act Onc rcved, th dgre of prbtve frc, or “wyht”, 2b gv 2th Ev is a question for the (Judge alone or jury). Reliability

Answer 4

Act cotyns spcfc admsblty rles rel8g 2 reliblty. Thr4, rlvt Ev my smtyms b xcldd / f admtd my atrct judicial wrng - bcaus it's rerdd as unrlbl (s 122 is th prmry sction dling wth this).

Answer 5

Evn tho Ev s rlvnt, it my b xcldd f it wud rslt n sme unfarenes 2 th prty agnst whm its admtd. Unfrns cn cvr a vriety of sits & s a matr of dscrtion 4 th tril jdge. It usaly arises n 2 wys 1. Ev myb xcldd f rsult n sme unfar prjdice n th prcdg 2. Ev nt prjdc n itslf of actul vrdct, my stl b ncldd whr its ben obtynd n circs tht wud mke admsn agnst th dfndt unfre. Eg dfndnts st8mt bn obtynd unfr / mprpr mthds. Cnfssn itslf my b mpcbl Ev but way it ws obtynd my led 2 xclsn U frnss dscrtn 2 th frst typ of unfrns th gnrl xclsn prvsn in s8 is dct8td

Answer 6

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will— (a) have 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.

Answer 7

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 s 8(1). However, once he or she decides that s 8(1)(a) or (b) apply, the requirement of general exclusion is mandatory (“must exclude”). The rule in s 8(1) applies even where evidence satisfies the conditions for admissibility in another provision in the Act.

Answer 8

blncg prbtve vlu of Ev agst rsk it'l hv “unfrly prjdiial efct on prcedg” (s8(1)(a)), or “ndlsly prlng prcdg” (s 8(1)(b)). Ev wlb admtd U s8 f prbtv vlu otwys rsk of unfrly prjdcl efct on prcdg or s strg enuf 2 sprt a prlgng of prcdg Th rsk 2 unfr prjdc wl typcly rfr 2 th dngr a jdg wl gv pce of Ev mre wyt thn dsrvs, b msld by Ev, spcl8 naprpr8ly re meng sgnfcnc of Ev 4 ilgtm8 prpse. Th s8 focs alws xclsn of Ev lkly 2b unfr by dstrctg Jdg frm th rel isues n tril

Answer 9

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.

Answer 10

ie - dfndnt wnts 2 cll 20 wtnses 2 gv Ev as 2 hs/hr vercity - section 8(1)(b) cud b usd by th Jdg 2 lmt Ev 2 fwr wtnses. The assmnt U s8(1)(a) “mst tke n2 acnt th ryt of defdnt 2 ofr an efctv dfnc (s 8(2)).

Answer 11

allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. The judge has to ensure that the trial is fair, and as such retains control of the process and may decline to admit the evidence even if all parties agree to its admission; or may not agree to admit it in the form agreed to by the parties (R v Hannigan [2012] NZCA 133 at [13]). The most obvious example would be where, in the judge’s view, the evidence or the mode of offering it would amount to a breach of s 8. Section 9 also enables both prosecution and defence to admit facts so that they do not need to be proved. This can be useful, for example, where there is expert evidence that is not in dispute.

Answer 12

The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington Principle”. This principle establishes exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence. it's subject to a number of limitations in both law and practice. The fact that the prosecution bears the ultimate burden of proving the case beyond reasonable doubt does not mean that the defence need not put forward any sort of case at all. If, for example, the prosecution proves that D confronted V, took a knife out of her bag, and stabbed him, it would be unwise for V’s lawyer to refrain from cross-examination or from calling evidence in reliance on the burden of proof. In such a case, once the prosecution has proved the facts from which, in the absence of some sensible explanation from the defendant, it is an inescapable conclusion that D both wounded and intended to wound V, D in effect has to produce some sort of story if she wants to suggest that the conclusion is wrong. This is not, however, a burden of “proof” – D does not have to prove anything. Rather, it is a practical obligation to point to some evidence which suggests a reasonable doubt about the conclusions one would otherwise draw from the prosecution case.

Answer 13

A rather different situation arises where D wishes to put up a defence to the charge – rather than simply stating they did not do the act or have the necessary mental element. In presenting its case, the prosecution is under no obligation to negative all the various possible defences which might be available to a defendant. Once the basic elements have been proved – that D deliberately stabbed V – it is up to D to point to some evidence that suggests an explanation – such as, for example, that she was acting in self-defence. This is, however, not just a “practical obligation” of the sort discussed in the last paragraph. It is known as an “evidential burden” on the defence. Here self-defence cannot be left to the jury or considered by the judge unless it has been made a “live issue” by the defence. However, once it is made a “live issue”, it is then up to the prosecution to destroy the defence, as they retain the burden of proof.

Answer 14

The existence of such an “evidential burden” is therefore not inconsistent with Woolmington. The burden of proof remains where that case puts it – with the prosecution. The ultimate question for the jury is always “has the prosecution proved its case?”

Answer 15

However, there are exceptions to the Woolmington principle in which the legal burden is unequivocally placed on the defendant, for example where the defendant wishes to rely on the defence of insanity (s 23 Crimes Act 1961) and where there exist specific statutory exceptions (e.g. s 180(4) Crimes Act 1961). There are places where the Evidence Act 2006 places the burden of proving a particular issue on one party, and occasionally this may be the defendant (see, for example, s 45 regarding identification evidence).

Answer 16

In addition, the law has developed in such a way as to include offences where Woolmington is seen simply to not apply – these are known as public welfare regulatory offences. The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public, rather than to punish individuals for immoral or otherwise blameworthy conduct (e.g. offences related to maritime and aviation safety). In these cases the courts have developed a no-fault defence, with the burden of proof on the defendant.

Answer 17

Standard of Proof Any party bearing a legal burden of proof must discharge this burden to the standard required. In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. In contrast, any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.

Answer 18

Beyond Reasonable Doubt The courts have been reluctant to provide any detailed or precise definition of the meaning of “beyond reasonable doubt”. However, a majority of the Court of Appeal in R v Wanhalla [2007] 2 NZLR 573 at [49] formulated some assistance to juries after reviewing overseas research and models, concluding that juries should be told that “Proof beyond reasonable doubt is a very high standard of the proof which the Crown will have met only if, at the end of the case, you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so. What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence”. The Court of Appeal has noted that the salient features of the Wanhalla direction are: the rationale for the burden of proof, namely the presumption of innocence; the fact that it is not enough for the Crown to convince the fact-finder of probable guilt; and the description of what a reasonable doubt is

Answer 19

Beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, the jury is sure that the defendant is guilty.

Answer 20

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not. Corroboration

Answer 21

Governs the general approach and exceptions relating to corroboration, and in doing so it reflects the previous law. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard. It does not always follow that the court will act upon the evidence of one witness; it simply means that it may do so when sufficiently satisfied as to its cogency. However, there are two types of offence – perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s 73 Crimes Act) — in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, “corroboration”, which is some independent evidence which implicates the defendant in the crime charged, is required as a matter of law.

Answer 22

Section 121(2) provides that there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction relating to the absence of corroboration. This is subject to the exceptions in s121(1) for perjury and treason, and to s 122 (whereby the judge may warn the jury about unreliable evidence). Under s 122, if the judge is of the opinion that uncorroborated evidence may be unreliable, he or she may warn the jury of the need for caution. For some types of evidence, such as hearsay evidence, s 122(2) provides that in jury trials the Judge must consider whether to give such a warning.

Answer 23

Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult

Answer 24

The conduct of criminal trials follows the “adversarial” or “accusatorial” system of justice developed through the English common law. The essential features of this system are as follows: · The facts of the case, and evidence relevant to the determination of those facts, emerge by means of questions put by prosecution or defence to witnesses called by them. · It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they should be asked. · Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination. · During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility. · The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case; he or she may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.

Answer 25

Oaths and Affirmations Witnesses who are 12 years of age or older must 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.

Answer 26

Notwithstanding these general requirements in section 77 Evidence Act 2006, with the judge’s permission a witness of any age may give evidence without taking an oath, making an affirmation or making a promise to tell the truth. If the judge gives such permission, he or she must inform the witness of the importance of telling the truth and not telling lies before the witness gives evidence. The evidence of the witness must then be treated as if it had been given on oath. Permission may be given for witnesses such as adult witnesses with an intellectual disability, or where a child witness is unable to promise to tell the truth.

Answer 27

The Criminal Procedure Act 2011 governs the conduct of all trials. The prosecution open the case and call witnesses, to be followed by the defence opening and calling of witnesses. The Court may give the defendant leave to make an opening statement before the prosecution calls any witnesses. By virtue of s 107 of the Criminal Procedure Act 2011, the defence may call a witness immediately after a prosecution witness (previously this only applied to expert witnesses). This provision is designed to assist the jury in building up a “story” about what happened and how the evidence fits together.

Answer 28

(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding— (a) a witness first gives evidence in chief; and (b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and (c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined. (2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Answer 29

(a) After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof etc.

Answer 30

(b) The Crown then makes an opening address, in which the prosecutor will provide an explanation of the charge or charges, reiterate the burden and standard of proof and summarise the case against the defendant and the evidence that the Crown proposes to call.

Answer 31

(c) Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness in order to clarify or qualify any matter which was raised during the cross-examination (“re-examination”).

Answer 32

(d) If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury. In a few cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In most, however, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case.

Answer 33

(e) The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and reexamination as set out above.

Answer 34

(f) The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.

Answer 35

(g) Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.

Answer 36

(h) Finally, the judge sums up to the jury before it retires to consider its verdict.

Answer 37

It should be reiterated that the defence is not obliged to call any evidence. In the event that it does not do so, the trial proceeds immediately to closing addresses at the conclusion of the prosecution case. Although this is the usual sequence, it may on occasions be varied. In particular, in jury trials, as mentioned above, it is becoming increasingly common for defence counsel to provide a brief statement of the issues in dispute in the case at the conclusion of the Crown opening and before the prosecution calls any witnesses, so that the jury is made rather more aware of what the case is about before it hears any evidence. In such cases, the defence is still entitled to make a full opening address at the conclusion of the prosecution case if it intends to call evidence.

Answer 38

By the time a case comes to trial it is not uncommon for witnesses to find that they cannot recall details or have gaps in their memory. The extent to which a witness is permitted to “refresh” or revive their memory by talking to others or referring to relevant notes and statements is governed by two sets of rules: one relating to refreshment of memory by reference to written documentation in court; and the other relating to refreshment of memory out of court. The Evidence Act 2006 regulates the refreshment of memory in court, but does not attempt to change the rules relating to refreshment of memory out of court.

Answer 39

Where a written record of the details of an event was prepared by a witness at the time of its occurrence or shortly thereafter and includes details which the witness cannot now recall, it obviously makes sense to allow the witness to refer to that document in the course of evidence. This is generally permitted as “refreshing memory”, in recognition of the fact that trials often occur months or years after the event and that the memory of witnesses will have dimmed over time.

Answer 40

If a witness wishes to consult a document whilst giving evidence the following conditions, designed to ensure so far as possible the accuracy of the document, must be satisfied: · The leave of the judge must be obtained · The document must be shown to every other party in the proceeding · The document must have been “made or adopted” by a witness “at a time when his or her memory was fresh” (s 90(5) Evidence Act 2006). Whether a document was made while the memory was fresh depends on the circumstances of the individual case. In Cameron v R [2010] NZCA 411, the Court stated that there is a non-exhaustive set of factors that can be considered, including the significance of the events to the witness; the time elapsed between the events and the making or adoption of the document; evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document. In Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23, the Court upheld a decision that a statement made 6 weeks after the event could still be a document made or adopted at a time when the witness’s memory was fresh. · The document must have been made by the witness, or by another person acting on the witness’s behalf, in his or her presence and assented to by the witness.

Answer 41

s90(7) prvds st8mnts of wtnss admssbl whr circs re st8mnt provd R asurnc its rliabl & prvds Crt wth info tht wtnss s unabl 2 recl Bcus Crts r actg on fction th doc s mrly rvg wtnss own mmry, Ev is oral tstimny s90 gvrns prcss wtnss rfrshg mmry gvng Ev opsed admsbilty of doc usd. Th doc wl nt nrmly b prt of Ev A wtnss hu wshes 2 refrsh mmry n Crt cn't cnslt a doc xcludd U ss28,29,30 unrlibl st8mts, st8mts nfluencd by oprssn & mprprly obtynd Ev. Thr's no prhbtion on cnslt8n of docs xcludd U othr prvsn of Ev Act 2007. it my b othr sttry eacts my rndr it mprmssbl 4 a doc 2b usd n prcedg evn whr ss90(1) or 90(2) dont aply

Answer 42

(b) Refreshment of memory out of court. b4 gvg Ev my rfrsh mmry rfr BoEv on bss st8mts thyv mde mnths b4 or chk rclectn of evnts wth ofcr hu ntrvwd thm. Docs cn't b sbmttd as Ev

Answer 43

Crts r clr wen a Prsctn wtnss hs refrshd thr mmry prir 2 tril frm wrtn st8mt Dfnc shud b advsd & copy of st8mt mde avlbl f rqstd in R v Jennings Hgh Crt also xtndd ths rqrmt 2 Polc Ofcrs rfrshg mmry frm ntes prir 2 tstfyg R v Foreman Crt of Apeal cnfrmd aproach 2 rfrshg mmry out of Crt (b4 gvg Ev. Not chgd by Ev Act 2006 1985) 1 CRNZ 618, the High Court extended this requirement to police officers refreshing memory from their notes prior to testifying. In R v Foreman [2008] NZCA 55, the Court of Appeal confirmed that the approach to refreshing memory out of court (before giving evidence) has not been changed by the Evidence Act 2006:

Answer 44

Prior 2 tril uncntrvrsial nt afctd by Ev Act. Prncpl wtnss fre 2 use wteva mns 2 rfrsh mmry. Cud afct wyht gvn thr Ev. It's prnmsbl wtnss 2 rrd thr BoEv b4 trial. It my b 5 yrs hnc prctc by lwyr n wtnss own wrds not trnsl8n & wtnss 2 sgn bref. Ops lwyr my xplr how wtns rfrshd mmry. Thgts discrtn ordr rlvnt doc b prdcd 2 opsg cnsl

Answer 45

Cud fnd wtnss fails 2 gv Ev thy expct. Cud cntrdct by prdcg othr wtnss wth anthr vrsn of fcts. Not genrly prmtd 2 xamn wtnss wthn ledg qstns, nt nttld 2 chlng vrcty of own wtnss thru x-xmntn. F wtnss dsplys hstilty 2wrds prty clng hm/hr, my sek lv frm jdg dclre "hostl wtnss". f app grntd, my ask wtnss qstns n mnnr of X-xmntn 2 xtnt jdg cnsdrs ncsry 4 prps of dong jst. ofmmry & prcptn s94 Ths my ncld ldg qstn, qstns dsgnd 2 prbe acurcy of mmry & prcptn, qstns as 2 prir ncnsstnt st8mts & othr chlgs 2 vrcty ncldg Ev frm othr wtnss (prvdd Ev ofrd sbstntialy hlpfl n assg wtnss vrcty) Dstnctn mst b drwn btwn unfvrbl & hostl wtnss. Hu fail 2 cm up 2 bref myb unfvrbl 2 th prty clg thm but nt ncsry hstl. Hstl wtnss xhbts or apr 2 xhbt lck of vrcty unfvrbl 2 th prty hu cld thm on mttr wch wtnss my rsnbly b sposd 2 hv knwldg or gvs Ev ncnstnt st8mt by thm n mnnr xhbts or aprs 2 an ntntn 2b unhlpfl 2 prty hu cld thm or rfss 2 ansr qstns or dlbrtly wthld Ev. Wthr wtns hstl n 1 of ths ways a qstn of lw 4 Jdg on appl frm prty n prcdg. Mst b othr ndctns 2 dmnst8 wtns nt wsh 2 tl trth, dlbr8ly wthld Ev sch as dmenr, bhvr othr rlvnt isus IE hstlty nt dmns8d by wtnss hs gvn Ev thts ncnstnt wth anthr st8mt he/sh mde prvsly. Actl / aprnt ntntn 2b unhlpfl 2 prty clg wtnss mst be prsnt Sprm Crt ntd n Hannigan V R tht ncnstncy - evn a strk one dsnt dmns8 hstlty absnt frthr st8mts or cndct by wtns "sgstv of hstlty There is no rule restricting a party from calling a witness who is known to be hostile to that party (R v Vagaia [2008] 2 NZLR 516 at [22]).

Answer 46

The Criminal Disclosure Act 2008 codifies and reforms disclosure in all criminal proceedings (which includes charges before the Youth Court and appeals, but does not include matters ancillary to proceedings, such as applications for bail or name suppression). The Act has a four step regime: initial disclosure by the prosecution, full disclosure by the prosecution, defence disclosure and third party disclosure.

Answer 47

Disclosure by the prosecution Initial disclosure Although it is useful to disclose as much as possible at an early stage, under the Act the requirement of initial disclosure is limited to: · a summary of the facts of the prosecution case · a copy of the charging document · a summary of the defendant’s right to apply for further information before entering a plea · the maximum (or minimum) penalty for an offence · a list of known previous convictions · a list of previous offences proved to have been committed by the defendant and of a kind to which s284(1)(g) of the Children, Young Persons and their Families Act 1989 applies.

Answer 48

The defendant may apply for further information after commencement of proceedings, which must be disclosed as soon as is practicable. This may include information such as: · names of witnesses intended to be called by the prosecution, · a list of the exhibits that are proposed to be produced on behalf of the prosecution at the hearing or trial; · a copy of all records of interviews with the defendant · a copy of all records of interviews of prosecution witnesses by a law enforcement officer that contain relevant information · copy of job sheets and other notes of evidence completed or taken by a law enforcement officer that contain relevant information a copy of any records of evidence produced by a testing device that contain relevant information · a copy of any diagrams and photographs made or taken by a law enforcement officer that contain relevant information and are intended to be introduced as evidence as part of the case for the prosecution a copy of any statement made by, or record of an interview with, a co-defendant in any case where the defendants are to be proceeded against together for the same offence · a list of any of the above information that the prosecutor refuses to disclose to the defendant, together with the reason for the refusal; and (if the defendant requests) the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by sections 16, 17 and 18 (see below in Chapter 9) and there is no overriding public interest (re: s 18).

Answer 49

Full disclosure Under s 13 Criminal Disclosure Act 2008, full disclosure by the prosecution must be made as soon as reasonably practicable after a defendant has · pleaded not guilty · when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court. All relevant information must be disclosed at this point, including (but not restricted to) “standard information” such as statements, briefs of evidence of prosecution witnesses, names and statements/ records of interview with those who the prosecution does not intend to call, information supplied by expert witnesses, convictions of prosecution witnesses, and lists of exhibits. To comply with the rules for full disclosure, the prosecutor must also supply the defence with a list of relevant information that is not disclosed and the reason for the refusal. The Criminal Disclosure Act 2008 defines the meaning of “relevant” under the Act:

Answer 50

8 Meaning of relevant In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant. The Criminal Law Reform Committee in its Report on Discovery in Criminal Cases (1986) has stated that “it is not always easy, as some prosecutors have testified, to estimate what information will be useful to the defence nor to assess what material, in all fairness, ought to be disclosed”. The Police instructions on criminal disclosure advise that, when deciding whether information or an exhibit supports or rebuts the case against the defendant, prosecutors should consider whether the information or exhibit: · will help or hinder the defendant’s ability to defend the charges; would or might detract from the prosecution case, or assist the defence, or incriminate another person. These suggestions do not add to the statutory section, being simply reiterations of its content. The instructions further advise that police must retain material or information which points towards a fact or an individual, casts doubt on the suspect’s guilt, or implicates another person.

Answer 51

The prosecutor must allow inspection of exhibits when requested by the defence after full disclosure occurs, where the exhibits were listed under s13(3)(e) or (f) in full disclosure. The inspection by the defendant is subject to any conditions that the prosecutor considers necessary for the purpose of: ensuring the security and integrity of the exhibit or otherwise maintaining its evidential value; and · in the case of an exhibit needed for use on an on-going basis for law enforcement purposes, ensuring that the exhibit can continue to be used as such.

Answer 52

At any time after a person has been charged with an offence, if they request information about an identification witness, the prosecutor must supply: · the name of the witness and (if permitted under section 17, the address) of each identification witness, whether or not the prosecutor intends to call them; · a statement of any description of the offender given by each witness to the prosecutor or Police; and · a copy of any identikit picture or other drawing.

Answer 53

In addition to the obligations entailed in full disclosure and in relation to identification witnesses, the prosecution must disclose additional information requested by the defence unless the information is not relevant, the information may be withheld under sections 15, 16, 17 or 18, or the request appears to be frivolous or vexatious. Requests must be for particular information, not a general request.

Answer 54

Sections 15-18 Criminal Disclosure Act 2008 allow for withholding of information at all stages (initial, full and additional disclosure), if · the prosecutor does not hold the information in recorded form or is not in possession or control of it (s 15) · disclosure is likely to prejudice the maintenance of the law (s16(1)(a)) · disclosure is likely to endanger the safety of any person (s 16(1)(b)) · it is material prepared to assist in the conduct of the trial/ prosecution (s 16(1)(c)(i)) · a communication dealing with matters relating to the conduct of the prosecution and is between the prosecutor and another person employed by the same person or agency that employs the prosecutor; or the prosecutor and any adviser to the prosecutor (s 16(1)(c)(ii)) · it is analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor (s 16(1)(c)(iii) · it is material subject to non-disclosure under another enactment or disclosure would be contrary to the provisions of any other enactment (s 16(1)(d)-(f), s 16(1)(k)). · disclosure is likely to prejudice the security or defence of New Zealand or international relations (s 16(1)(g)(i)); or prejudice entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation (s 16(1)(g)(ii)). · disclosure is likely to facilitate the commission of an offence (s16(1)(h)). · disclosure would constitute contempt of court or of the House of Representatives (s 16(1)(i)). · the information is publicly available (s 16(1)(l)), has previously been made available to the defendant (s 16(1)(m)- for example under the Official Information Act 1982 or Privacy Act 1993) or does not exist/ cannot be found (s 16(1)(n)). · the information reflects on the credibility of a witness who will not be called by the prosecution, but may be called by the defence and is not for any other reason relevant (s 16(1)(o)). · Information that identifies or may lead to the identification of the witness’s or informant’s address (s 17 – such information may be disclosed to the defendant only with the leave of the court or if it is necessary to disclose the information in the charge in order to ensure that the defendant is fully and fairly informed of the charge). · the information would disclose a trade secret or prejudice the commercial position of the supplier of the information (unless it is in the public interest to disclose it) (s 18). · If the prosecutor does withhold information, reasons must be given.

Answer 55

Any information that has been previously withheld should be regularly reviewed to determine whether circumstances have changed. If a change in circumstances means that the information should now be disclosed, that should be done as soon as is practicable. There may also be requests for information made to police under the Official Information Act 1982 or Privacy Act 1993. Such information can be withheld if it is information that could be sought by the defendant or that has been disclosed to, or withheld from, the defendant under the Criminal Disclosure Act 2008. Requests for information should be considered under the Official Information Act 1982 or Privacy Act 1993 where the request takes place before the commencement of proceedings, where the request does not relate to criminal proceedings, or where the information is not covered by the Criminal Disclosure Act. Obligations under the Criminal Disclosure Act begin with the commencement of proceedings and continue for as long as information related to the proceedings is held. The requirements for prosecutorial disclosure are set out below:

Answer 56

The requirements for prosecutorial disclosure are set out below: Criminal proceedings commence Initial disclosure occurs (generally not later than 15 working days after commencement of proceedings) Does defendant request more information from prosecutor? YES Is entitled to some additional information NO Full disclosure occurs (as soon as practicable) after defendant pleads not guilty Does a defendant to whom full disclosure must be made request further information from prosecutor? Is entitled to any other relevant information (other than information that can be withheld under a withholding provision) No further disclosure required from prosecutor

Answer 57

The Evidence Act 2006 s 79 provides for an entitlement for complainants and child witnesses in criminal proceedings to have a support person present. This entitlement will apply regardless of the way in which the complainant gives evidence (for example, it will still apply should the complainant give evidence via closed circuit television). If the complainant or child witness wishes to have more than one support person present, the permission of the judge must be sought. Section 79 is not limited to sexual cases; rather, it applies for complainants and child witnesses in all criminal proceedings. Witnesses who are not complainants or child witnesses (including the defendant, should he or she give evidence) may apply to the judge for permission to have a support person near. Defendants who are children are not included in the definition of ‘child witness’ and as such must apply for provision of a support person should they wish to have one.

Answer 58

A complainant, when giving evidence in a criminal proceeding, is entitled to have 1 person, and may, with the permission of the Judge, have more than 1 person, near him or her to give support. (1A) A child witness, when giving evidence in a criminal proceeding, is entitled to have 1 person, and may, with the permission of the Judge, have more than 1 person, near him or her to give support. (2) Any other witness, when giving evidence in any proceeding, may with the permission of the Judge, have 1 or more support persons near him or her to give support. (2A) Subsections (1), (1A), and (2) apply whether the witness or complainant gives evidence in an alternative way or in the ordinary way. (3) Despite subsections (1), (1A), and (2), the Judge may, in the interests of justice, direct that support may not be given to a complainant or a child witness or other witness by— (a) any person; or (b) a particular person. (4) A complainant or a child witness or other witness who is to have a support person near him or her while giving evidence must, unless the Judge orders otherwise, disclose to all parties as soon as practicable the name of each person who is to provide that support. (5) The Judge may give directions regulating the conduct of a person providing or receiving support under this section.

Answer 59

The rationale for this provision is that having someone close by that the witness trusts will help him or her to give complete evidence. The function of support persons is to reduce stress and trauma for the witness. They are allowed merely to “support” the witness, not to prompt or advise. Section 79(5) allows the judge to give directions regulating the witness and/or their support person and how they may act. The judge can direct “in the interests of justice” that support may not be provided to a complainant or witness. The direction may mean that no person will be allowed to support the complainant or witness, or that a particular person may not provide the support. This may occur, for example, to veto a public figure from acting as a support person where their support may affect the jury’s assessment of the witness’s veracity.

Answer 60

Communication Assistance Defendants and witnesses may also be provided with “communication assistance”, which is assistance that enables or facilitates communication with persons who do not have sufficient proficiency in the English language to understand and give evidence, or who have a communication disability. Communication assistance may include assistance such as provision of an interpreter, and any other mechanism or technological aid that can help witnesses and defendants to give or understand evidence. The defendant in a criminal proceeding is entitled to communication assistance to enable understanding of the proceeding (regardless of whether the defendant gives evidence), and also to enable the defendant to give evidence should he or she elect to do so. This is in accordance with s 24(g) of the New Zealand Bill of Rights Act 1990, which provides that “everyone who is charged with an offence … shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court”. Communication assistance will not be provided should the judge consider that the defendant can understand the proceeding and/or understand and answer oral questions without the aid of communication assistance. Witnesses are also be entitled to communication assistance in order to allow them to give evidence. It will be provided only in order to assist the witness to understand questions put orally and adequately respond to them. Witnesses other than the defendant are not entitled to communication assistance in order to help them to understand the proceeding outside of their giving of evidence. The defendant needs to understand what is being said in order to be able to participate in his or her own defence; other witnesses do not have the same claim.

Answer 61

On the application of a party, or on the judge’s own initiative, the judge may direct that a witness is to give evidence in chief and be cross-examined in an alternative way. This applies to all witnesses (including defendants) in any proceedings. Despite the use of the word “alternative”, there is no presumption in favour of the “ordinary” way of giving evidence. The ability of the judge to direct that evidence be given in an alternative way is not affected by the provisions of the Courts (Remote Participation) Act 2010, which governs the use of audio-visual links for appearances of witnesses where there is the “ability to assess the credibility of witnesses” (see s 102A Evidence Act 2006).

Answer 62

Under s103(3) Evidence Act 2006, a direction may be made on any of the following grounds: · the age or maturity of the witness · the physical, intellectual, psychological, or psychiatric impairment of the witness: · the trauma suffered by the witness · the witness’s fear of intimidation · the linguistic or cultural background or religious beliefs of the witness · the nature of the proceeding · the nature of the evidence that the witness is expected to give · the relationship of the witness to any party to the proceeding · the absence or likely absence of the witness from New Zealand · any other ground likely to promote the purpose of the Act.

Answer 63

Furthermore, under s103(4) Evidence Act 2006, the judge must have regard to: · the need to ensure the fairness of the proceeding that there is a fair trial · the views of the witness · the need to minimise the stress on the witness · the need to promote the recovery of a complainant from the alleged offence · any other factor that is relevant to the just determination of the proceeding.

Answer 64

Where an application is made for a witness to give evidence in an alternative way, the judge must give each party an opportunity to be heard in chambers; and may call for and receive a report from any person considered by the Judge to be qualified to advise on the effect on the witness of giving evidence in the ordinary way or any alternative way.

Answer 65

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: · 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.

Answer 66

Special provision for child witnesses Section 107 Evidence Act 2006 provides that where the proceeding involves a child witness, he or she will be entitled to give evidence in 1 or more alternative ways. A party intending to call a child witness must give notice to every other party and the court about which alternative way(s) of giving evidence will be utilised no later than when the case management or trial call over memorandum is filed. Notwithstanding the usual process for child witnesses in s 107, ss 107A and B provide that the party calling the witness or any other party may apply for the child witness to give all or part of their evidence in the ordinary way.

Answer 67

As a general proposition, all persons are eligible to give evidence – that is, they are lawfully able to give evidence on behalf of both prosecution and defence; and all persons who are eligible are compellable to give that evidence – that is, they can be required to testify against their will by both prosecution and defence.

Answer 68

However, some witnesses will, in fact, lack the capacity to give rational and coherent testimony. In relation to the hearsay rules, section 16 of the Evidence Act operates to make a person unavailable as a witness if he or she is “unfit to be a witness because of age or physical or mental condition”. However, such people may still be compellable.

Answer 69

Witnesses who are otherwise compellable under the Act, can nonetheless be excused by a judge from testifying in criminal proceedings for “just cause” (s 165 of the Criminal Procedure Act 2011). This provision takes precedence over s 71. Furthermore, where a witness is eligible and compellable, and is not excused from testifying, he or she may nevertheless be able to be excused from answering certain questions because of a privilege.

Answer 70

In addition to the ability to have recourse to ss 7 (relevance) and 8 (general exclusion), or to excusal from testifying, there are some exceptions in ss 72- 75 Evidence Act 2006 to the general proposition that all persons are eligible and compellable.

Answer 71

A person who is acting as a judge in a proceeding is not eligible to give evidence in that proceeding. This reflects the desire to avoid conflicts of interest and aims to ensure fairness and neutrality of the trial.

Answer 72

Unless the judge gives permission, a person acting as a juror or counsel in a proceeding is ineligible to give evidence in that proceeding. If a juror is given permission to give evidence, he or she would be discharged and the trial would proceed with the eleven remaining jurors.

Answer 73

A defendant who acts as his or her own counsel will not need judicial permission to testify.

Answer 74

Section 73 is concerned with the compellability of defendants and associated defendants. It is not concerned with eligibility of those persons should they wish to testify voluntarily, although such evidence may attract a warning under s 122 Evidence Act 2006 if it is from an associated defendant.

Answer 75

(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding. (2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless— (a) the associated defendant is being tried separately from the defendant; or (b) the proceeding against the associated defendant has been determined. (3) A proceeding has been determined for the purposes of subsection (2) if— (a) the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or (b the associated defendant has been acquitted of the offence; or (c) the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.

Answer 76

(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for— (a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; (b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted

Answer 77

Section 73 therefore sets out a basic rule of non-compellability. A defendant facing a criminal trial is an eligible but not a compellable witness for either “the prosecution or the defence in that proceeding” (s 73(1) – so a defendant can give evidence but does not have to).

Answer 78

An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s 73(4)(a)); or “that relates to, or is connected with,” the offence for which the defendant is being tried (s 73(4)(b)).

Answer 79

The provisions in s 73 are intended to encompass not only actual codefendants in a criminal trial, but also persons charged with linked offending. For example, where a defendant is charged with burglary, then both an accomplice to the burglary itself, and someone charged with receiving goods stolen in the burglary would be an associated defendant under s 73.

Answer 80

If the “associated defendant” is actually a co-defendant at the defendant’s trial, the ordinary rule of non-compellability will apply. This follows from the prohibition in s 73(1) against a “defendant in a criminal proceeding” being a compellable witness for either “the prosecution or the defence” (i.e. the defence of another defendant in the proceeding) in that case. If the associated defendant is not a co-defendant, then he or she will be compellable for both the Crown and the defence where the associated defendant is being “tried separately” from the defendant, or where the proceeding against the associated defendant has been “determined” (as defined in s 73(3)).

Answer 81

Other exceptions Under s 74 Evidence Act 2006, judges, in respect of the judge’s conduct as a judge (along with the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country) are not compellable to give evidence. Under s 75, where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s 19), or to appear as a witness to prove the matters recorded in the bank records.

Answer 82

Privilege Even when a witness is eligible to give evidence and chooses or is compelled to do so, he or she may still be able to refuse or be prevented from answering particular questions on the grounds of privilege. A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.

Answer 83

Several privileges are outlined in the Evidence Act 2006: · privilege for communications with legal advisors – section 54 · privilege and solicitors’ trust accounts – section 55 · privilege for preparatory materials for proceedings – section 56 · privilege for settlement negotiations, mediation or plea discussions – section 57 · privilege for communications with ministers of religion – section 58 · privilege for information obtained by medical practitioners and clinical psychologists – section 59 · privilege against self-incrimination – section 60 · informer privilege – section 64

Answer 84

Note that there is no longer marital privilege – if any protection of disclosure to a spouse or partner is desired, this will be assessed under s 69 (overriding discretion as to confidential information).

Answer 85

When a claim of privilege is made, it is important to enquire whether the material in question, be it a communication, information, opinion, or document, is within the scope of the privilege in question, as these differ in scope (some protect “information”, others “communications”, for example).

Answer 86

The person who has a privilege has the right to refuse to disclose the information, and may require that the information is not disclosed by the person whom the information was given to or received from; or by any other person who has come into possession of it with the authority of the person who has the privilege. Where privileged material comes into the possession of a person who has not been authorised by the holder of the privilege to possess the material (e.g. surreptitious interception), the judge has a wide discretion to prevent disclosure of the material (s 53 Evidence Act 2006).

Answer 87

Since the effect of a claim of privilege is that information is withheld from the court which might be of assistance in determining the case, the particular public interest underlying the claim must be a significant one, and one which outweighs the interests of justice in having all the relevant evidence before the court. The most important interest in this respect is the preservation of important social relationships which depend for their effectiveness on confidentiality.

Answer 88

Privilege may be waived at any time by the person who is entitled to rely on it. Waiver ends the ability of the privilege holder to assert his or her rights - for example, the right to require that the material not be disclosed in a proceeding. However, this does not necessarily mean that privilege has been destroyed for all purposes. Despite a waiver, an “interested person” could still apply for an order, under s 52 Evidence Act 2006, that the privileged material remains inadmissible. This reflects the fact that sometimes someone other than the privilege holder will want to prevent privileged material being given in evidence.

Answer 89

In addition to the provisions for situations attracting privilege, sections 68- 70 Evidence Act 2006 provide for judicial discretion to protect confidentiality. These allow the judge to weigh competing public interests in deciding whether to protect the confidentiality of communications.

Answer 90

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence: “veracity” (disposition to refrain from lying) and “propensity” (tendency to act in a particular way).

Answer 91

The rules do not apply to evidence about a person’s veracity if that veracity is an element of the offence for which a person is being tried (e.g. a prosecution for perjury). In Hannigan v R [2013] NZSC 41, 2 NZLR 612, the majority of the Supreme Court held that the veracity rules do not control evidence which is directly relevant to the facts in issue in the proceedings.

Answer 92

This part of the 2006 Act does not apply to bail or sentencing hearings, except when the evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or his or her reputation in sexual matters.

Answer 93

Sections 40-43 Evidence Act 2006 control evidence of propensity. For the purpose of this part of the Act, propensity evidence is 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. It does not include evidence of an act or omission that is one of the elements of the offence for which the person is being tried.

Answer 94

General rule The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions: · propensity evidence about a defendant may only be offered in accordance with sections 41, 42 or 43; and · in sexual cases propensity evidence about a complainant’s sexual experience may only be offered in accordance with section 44.

Answer 95

Outside of these restrictions, the general principles of relevance (s 7) and the general exclusion provision of s 8 will act as the check on propensity evidence (for example, propensity evidence about a witness may not be relevant under s 7).

Answer 96

Propensity evidence about defendants – section 41 Evidence Act 2006 Section 41 incorporates the ability to offer evidence of a good propensity: the propensity limb of what was termed “good character evidence” at common law. However, it also allows defendants to offer evidence of disreputable conduct about him or herself: something which a defendant may want to do for tactical reasons. For example, in Johnston v R [2012] NZCA 559, [2013] 2 NZLR 19 the defendant offered evidence of his extensive criminal history for burglary in an unsuccessful attempt to show that he had been on the property to commit a burglary rather than a rape.

Answer 97

``` Section 41 also allows defendants to offer evidence of a neutral propensity. For example, evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad. A defendant may offer propensity evidence when testifying, but also through other witnesses, even though he or she does not testify. ```

Answer 98

``` Section 41(2) provides that, by offering evidence of his or her propensity to act in a good fashion, the defendant opens the door to rebutting evidence from the prosecution or another party (with the permission of the judge). ``` This is to prevent the judge or jury from forming the wrong impression about the defendant’s character. It is unlikely that permission will be granted under s 41(2) where the only propensity evidence offered by the defendant is evidence that he or she has no relevant previous convictions: Wi v R [ 2010] 2 NZLR 11.

Answer 99

Note also that, unlike the previous law, the door is not opened by an attack on the propensity of a prosecution witness

Answer 100

Section 42 provides that a defendant may only offer propensity evidence about a co-defendant if the evidence is relevant to a defence raised or proposed to be raised by the defendant, and the Judge permits the defendant to do so.

Answer 101

The Act incorporates a compromise: evidence that the defendant has a propensity to commit criminal acts is relevant to guilt or innocence, but there is concern that the fact-finder may give undue emphasis to evidence that the defendant previously acted in a similar way to that alleged in the current proceeding. To this end, the judge must identify the relevance of the evidence, outline the competing positions of the parties, and warn the jury against illegitimate reasoning processes (M v R [2012] NZCA 53 at [13] and Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [82] and [95]).

Answer 102

All probative evidence will be prejudicial; the test is concerned with illegitimate prejudice. The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Answer 103

The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence, although this may affect the assessment of the probative value of the evidence. Such evidence has been termed “prior acquittal evidence”: Fenemor v R [2011] NZSC 127. The test is the same as for propensity evidence concerning previous convictions. In addition, it is well-established that conduct that is subsequent to the present alleged offending is capable of being propensity evidence.

Answer 104

He or she may then consider the non-exhaustive list of issues in s 43(3): · Section 43(3)(a): the frequency of acts demonstrating the defendant’s propensity increases the probative value of the evidence (although it will be rare for frequency alone to secure admission of the evidence). · Section 43(3)(b): how closely connected in time are the propensity acts to the current alleged offending. · Section 43(4)(c): similarity between the previous acts and those currently alleged. This can be an important factor in the admissibility decision, although not necessarily the overriding consideration. · Section 43(4)(d): the number of people making allegations against the defendant. · Section 43(3)(e): whether allegations may be the result of collusion or suggestibility. · Section 43(3)(f): do the acts share similar unusual features. It

Answer 105

It has been held that the degree of similarity is not diminished because the offending in issue is a progression in seriousness when compared with the propensity offending. If the relevant acts fall within the same category of offending then there is no need to draw a distinction based on relative severity alone (Hetherington v R [2012] NZCA 88 at [20] and R v Khan [2010] NZCA 510).

Answer 106

Under s 44 of the Evidence Act 2006, the permission of the Judge is required before any evidence may be given or before any questions are put to a complainant regarding his or her sexual experience with anyone other than the defendant. The Judge may only give permission where he or she is satisfied that the evidence is of such direct relevance to facts in issue (a heightened relevance test) or to sentence that to exclude it would be contrary to the interests of justice. Section 44 is subject to s 44A, which provides that a party who proposes to offer evidence or ask any questions about the sexual experience of a complainant in a sexual case must make a written application setting out names, subject matter and scope of the evidence or question(s).

Answer 107

No evidence can be given or question put relating directly or indirectly to the reputation of the complainant in sexual matters. This means that reputation evidence going to the issue of the complainant’s credibility, his or her consent or the defendant’s belief in consent, cannot be offered. The section applies to all cases of a sexual nature.

Answer 108

The Evidence Act 2006 made significant changes to the previous law relating to hearsay evidence, meaning that common law exceptions no longer apply.

Answer 109

“a statement that was made by a person other than a witness, and is offered in evidence at the proceeding to prove the truth of its contents” (s 4). “Statement” means: · a spoken or written assertion by a person of any matter or · non-verbal conduct of a person that is intended by that person as an assertion of any matter

Answer 110

Hearsay statements are not admissible except where there is provision for admissibility in the Evidence Act 2006 or any other Act; or where there is express provision that the hearsay rules do not apply (section 17 Evidence Act 2006).

Answer 111

As outlined above, a “witness” is “someone who gives evidence and is able to be cross-examined in a proceeding” – this applies even if the “witness” is not the person giving evidence of the out-of-court statement. The definition of “witness” and “hearsay statement” means that out-of-court statements made by a “witness” are not excluded by the hearsay rule, on the basis that the maker is available to be cross-examined.

Answer 112

As outlined above, a “witness” is “someone who gives evidence and is able to be cross-examined in a proceeding” – this applies even if the “witness” is not the person giving evidence of the out-of-court statement.

Answer 113

means that out-of-court statements made by a “witness” are not excluded by the hearsay rule, on the basis that the maker is available to be cross-examined.

Answer 114

For example, A gives evidence that B said “X killed Y”. If B has given evidence in the proceeding, A’s recounting of B’s statement will not be hearsay, even if B did not testify that X killed Y or did not testify that s/he previously said that X killed Y (in which case fairness will dictate that he or she should be recalled and cross-examined on the point). However, if B does not give evidence or has yet to give evidence in the proceeding, the statement recounted by A will be hearsay if offered to prove that X killed Y. Where not covered by the hearsay rule, or where an exception to the hearsay rule applies, such statements may still be inadmissible by virtue of another rule under the Act (for example, s 37 veracity rule).

Answer 115

Unintended assertions are not statements (and so are not hearsay statements) The definition of “statement” does not include a statement or non-verbal conduct that is not intended to be an assertion.

Answer 116

As at common law, 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.

Answer 117

for example merely to show that the statement was made, is not a hearsay statement and need not meet the hearsay admissibility test in s 18 Evidence Act 2006

Answer 118

For example, where a doctor states that his or her patient said that they suffered from chest pains, the evidence is not hearsay if offered to illustrate why the doctor concluded that the patient had angina. The purpose of the evidence is not to prove that the patient indeed suffered from chest pains but is rather to show how and why the doctor reached his or her conclusion. By contrast, the evidence will be hearsay if the doctor wishes to testify as to the chest pains in order to say that they were actually suffered, as this would be equivalent to saying that the symptoms were the “truth”.

Answer 119

This is complicated by the fact that once a statement is admitted for some other purpose it could then be used as proof of the truth of its contents. It is likely that in many such cases, judges will either direct juries to limit the use of such statements; or where the court considers that it is too difficult for the jury to avoid using the statement to prove the truth, the statement will not be admitted (see for example R v Liu [2015] NZHC 1125).

Answer 120

Section 18 Evidence Act 2006 contains the main exception to the exclusionary rule. It is a major reform of the common law rule. It provides that:

Answer 121

(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.

Answer 122

Section 18 makes it clear that there are two criteria for admissibility: · reliability and · unavailability or undue expense or delay The notice requirement in s 22 Evidence Act 2006 must also be met before a hearsay statement can be admitted.

Answer 123

. where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on. · the rule addresses the concern that 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 game of “Chinese Whispers”, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.

Answer 124

The focus of s 18(1)(a) is the reliability of the hearsay statement itself, not the person who intends to give the hearsay evidence. It is a threshold test for admissibility. The reference to “reasonable assurance” of reliability means that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to the weight to be placed on the evidence.

Answer 125

circumstances, in relation to a statement by a person who is not a witness, include— (a) the nature of the statement; and (b) the contents of the statement; and (c) the circumstances that relate to the making of the statement; and (d) any circumstances that relate to the veracity of the person; and (e) any circumstances that relate to the accuracy of the observation of the person This is a non-exhaustive definition.

Answer 126

“[The] definition of “circumstances” for the purpose of hearsay evidence makes it clear that the inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement, but also the nature and contents of the statement, and the circumstances relating to its making.”

Answer 127

(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person— (a) is dead; or (b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or (c) is unfit to be a witness because of age or physical or mental condition; or (d) cannot with reasonable diligence be identified or found; or (e) is not compellable to give evidence.

Answer 128

It is likely that the increasing use of technology, including the use of video-link – see s 168 of the Evidence Act and the Courts (Remote Participation) Act 2010 – will mean that more witnesses, particularly those overseas, will be “available” to give evidence. Whether it is “reasonably practicable” for the person to give evidence will depend not only on the availability of the technology, but also on the expense and inconvenience incurred, as balanced against the nature of the proceedings and the significance of the witness's evidence.

Answer 129

removes the reference to “old” age, so that the inquiry into unavailability can relate to the effect of youth on the ability to be a witness, as well as age.

Answer 130

Section 16(2)(d) makes it clear that an inability to either identify or find a person renders them unavailable, in comparison to the former provision that referred only to an inability to be found.

Answer 131

(unavailability by reason of non-compellability). Those who cannot be compelled to testify (for example, the Sovereign (s 74) and the defendant in a criminal case) are considered “unavailable as a witness” for the purposes of the hearsay rule

Answer 132

(3) Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

Answer 133

The subsection would apply when a party anticipates that the maker may not testify consistently with the out-of-court statement, and so causes them to be unavailable in an attempt to offer the hearsay evidence. When a party has caused the unavailability of a statement maker, the s 16(2) definition of unavailability no longer applies. Section 16(3) requires that the party intentionally cause the unavailability of the statement maker. If a party negligently causes the death of a witness, that party will still be able to apply s 16(2)’s definition of unavailability.

Answer 134

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.

Answer 135

· That is made to comply with a duty or in the course a of business (and as a record or part of a record of that business); and · That is made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied

Answer 136

excludes police records that contain statements or interviews of eyewitnesses, complainants or any other person who purports to have information about the circumstances of alleged offending, as they are not “inherently reliable.” Hearsay statements contained in such documents may be admissible if s 18 is satisfied.

Answer 137

Unlike s 18, there is no requirement under s 19 of a “reasonable assurance that the statement is reliable”. However, any challenge to the reliability of the statement may still affect the weight accorded to the evidence, or may lead to exclusion under s 8.

Answer 138

where no useful purpose would be served by requiring the person to be a witness because there can be no reasonable expectation that the person will be able to recollect the matters dealt with in the information supplied for the business record. By virtue of s 19(2), notice of offering hearsay statements contained in business records must be given.

Answer 139

(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.

Answer 140

(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.

Answer 141

(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.

Answer 142

(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.

Answer 143

(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.

Answer 144

Visual identification evidence is defined in the 2006 Act as · an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or · an account (whether oral or in writing) of an assertion of the kind described above.

Answer 145

This is a fairly broad definition, potentially encompassing evidence where the person making the assertion is uncertain; and also covering identification evidence not only of a suspect but also of other persons or things, provided that seeing those other persons or things constituted an assertion that a defendant was present at or near the place in question (for example, identification of the defendant’s car). However, the provisions of s 45 apply only to identifications of persons alleged to have committed an offence, and so other forms of visual identification evidence will be governed by the general provisions of ss 7 and 8.

Answer 146

The definition in s 4 does not cover resemblance evidence (evidence that a person shares features or attributes with the defendant, rather than direct identification: R v Turaki [2009] NZCA 310 at [58]);F it does cover recognition evidence; F and it will also cover some cases of observation evidence, where the defendant does not deny being at the scene but does deny acting in a particular way.

Answer 147

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

Answer 148

(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification

Answer 149

(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence— (a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and (b) in which the suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect; and (c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the suspect; and (d) in which the person making the identification is informed that the suspect may or may not be among the persons in the procedure; and (e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and (f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and (g) that complies with any further requirements provided for in regulations made under section 201.

Answer 150

(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure: (a) a refusal of the suspect to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person): (b) the singular appearance of the suspect (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared): (c) a substantial change in the appearance of the suspect after the alleged offence occurred and before it was practical to hold a formal procedure: (d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant: (e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer’s initial investigation: (f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

Answer 151

· Visual identification evidence obtained by way of a formal procedure followed by officers of an enforcement agency will be admissible in a criminal proceeding, unless the defendant proves on the balance of probabilities that it is unreliable.

Answer 152

The requirements for a formal procedure are outlined in s 45(3), but the detail there is not comprehensive regarding the conduct of formal identification procedures. Some further detail is contained in the revised Police Instructions, as discussed below.

Answer 153

If no formal procedure is followed, any visual identification evidence resulting from an informal procedure will be inadmissible unless there was a good reason for not following a formal procedure (as outlined in s45(4)) or the prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made would have produced a reliable identification (s 45(2)).

Answer 154

The identification procedure must be conducted by “officers of enforcement agency”, which includes some agencies other than the police.

Answer 155

The provision applies only to visual identification evidence of a “person alleged to have committed an offence”. Identifications of other people will fall to be governed by the general principles in ss 6, 7 and 8.

Answer 156

The combined effect of s 45(2) and (3) is intended to prevent dock identification — where the witness identifies the defendant in the courtroom for the first time. Under s 45(2), the prosecution is unlikely to be able to prove beyond reasonable doubt that a reliable identification can be made in such circumstances; and under s 45(3) dock identification does not fulfil the requirements of a formal procedure. However, if there was a good reason why a formal procedure was not followed under s 45(4), a dock identification could be admissible unless the defendant can prove under s 45(1) that the identification is unreliable. Given the approach of the courts to dock identification since the inception of the Act, it is likely that in most cases the defendant could reach the required standard and it will be rare for dock identification to be allowed in future.

Answer 157

This means that photographic and video identification may be used where the procedure adheres to the requirements under s 45(3). How the procedure is utilised is the key, not whether one “method” is better than another.

Answer 158

The standard required is on the balance of probabilities. The focus of a defendant’s challenge to the reliability of the evidence can be both on the procedural reasons for asserting unreliability, and on those connected with the witness or the circumstances of the offence, such as short-sightedness, bad lighting etc. Other evidence in the case will also be relevant to this inquiry.

Answer 159

where there has been no formal procedure followed (and there was no good reason for not doing so), visual identification evidence will be inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification. A procedure which adheres to most of the requirements under s 45(3) is more likely to discharge the burden than one which falls far short. The Court in R v Edmonds [2009] NZCA 303 at [101] stated that:F

Answer 160

“[T]here are unlikely to be many instances where the identification is made after a fleeting glance of a stranger where the high standard of s 45(2) could be met by the Crown in the absence of at least some aspects of a formal procedure having been conducted”.

Answer 161

still be able to take into account all of the circumstances affecting reliability (e.g. witness factors such as eyesight and offence factors such as lighting), as well as the conduct of the procedure. However, other evidence in the case cannot be taken into account under s 45(2).F

Answer 162

The focus on reliability of eyewitness evidence in s 45 is a reflection of the inherent potential for unreliability of both visual and voice identification: our memories are prone to incompleteness, distortion, and forgetfulness. However, psychological research suggests that jurors may believe eyewitnesses too readily, especially when they are confident or have been consistent, and that there is not great ability for us to distinguish accurate from inaccurate eyewitnesses. Traditional credibility cues may not work because the witness may genuinely believe that he or she is right, when in fact they are wrong. As identification evidence is inherently unreliable, care must be taken to elicit the most reliable evidence possible by means of fair and transparent procedures.

Answer 163

As admissibility may stand or fall on the issue of whether the evidence was gained through a formal identification procedure, it is important to know what constitutes a formal procedure. Section 45(3) sets out the requirements, all of which need to be met before the presumption for admissibility under s 45(1) is triggered. The procedure should take place during the investigation or soon after an arrest, as confirmed by the Supreme Court in Harney v Police [2011] NZSC 107. This may involve consideration of means and resources, but a lack of resources cannot be taken too far (Ah Soon v R [2012] NZCA 48 at [19]).

Answer 164

If one or more of the requirements are not met, admissibility will be governed under s 45(2). In line with the overall aim of s 45, the purpose of s45(3) is to ensure that visual identification evidence is as reliable as possible.

Answer 165

Police Instructions contain more detailed provisions for identification parades (which are rarely used) than for photo montages (which are routinely conducted). However, some of the detail can be applied to any formal procedure. The Police Instructions restate the key elements in s 45(3) and in addition provide that any identification parade should be conducted by a staff member at the level of sergeant or senior sergeant. The O/C Case can be present, but must not take part in the proceedings.

Answer 166

Seven people must be chosen who are of the same race, similar age, height, general appearance and social grouping as the suspect, and not police members. Different participants should be used where the witness will view more than one parade or montage. It has been held that the guiding principle in arranging a procedure is whether it will “avoid any material risk of predisposing the witness to identify the defendant” (Ah Soon v R [2012] NZCA 48 at [23]).

Answer 167

Suspects should be advised that he or she is entitled to refuse to take part in the parade and have a solicitor present.

Answer 168

Witnesses must not be allowed to see the suspect before he or she is placed in the parade or be asked any questions drawing their attention to any particular characteristic of the suspect. Witnesses should be told that the person they saw may or may not be present. If a witness indicates a person but cannot make a positive identification, or picks out someone other than the suspect, the O/C Parade must ensure that this is recorded. A written and pictorial record should be made of the procedure.

Answer 169

``` Section 45(4) outlines what circumstances constitute a good reason for not following a formal procedure. ``` The list in s 45(4) is not exhaustive. However, the list should be added to very rarely, and only for generic situations rather than catering to the facts of a particular case (Taroro v R [2010] NZCA 287 at [79]). The list of good reasons comprises both those situations in which it is not practical to follow a formal procedure, and those where it is not necessary to do so.

Answer 170

it must try to establish a good reason for an informal procedure in any case where the requirements of s 45(3) are not fully met. If the prosecution can provide a good reason under s 45(4), the identification evidence will be admissible under s 45(1), and the onus will shift to the defendant to prove that the identification is unreliable. Whether or not there is a good reason under s 45(4) will therefore be a crucial issue in many cases. Some of the “good reasons” involve some difficult issues:

Answer 171

Section 45(4)(a) recognises the right (also found in s 344B of the Crimes Act 1961) of the person to be identified to refuse to participate in an identification parade, and also recognises that the person to be identified has the right to refuse to permit a photograph or video record to be taken. Where a photograph or video already exists of the person to be identified, and it represents a true likeness of that person, refusal to participate will usually not constitute a good reason under s 45(4) because the existing photograph or video can be used in a formal procedure.

Answer 172

Section 45(4)(b) acknowledges that there will be cases where the person to be identified will be so singular in appearance that the requirement in s 45(3)(b) cannot be complied with. Evidence will be needed before the Court will allow this as a good reason for not following a formal procedure (R v F [2009] NZCA 520). The subsection provides that singular appearance will constitute a good reason for not following a formal procedure, where the appearance is “of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared”. Whether the other participants in the procedure will be able to be disguised in order to comply with s 45(3)(b) is unclear.

Answer 173

Live procedures will not be used in the majority of cases, and therefore s 45(4)(c) will only be relevant in those cases where there has been a delay between the offending and the arrest, when a photograph will be taken.

Answer 174

Section 45(4)(d) provides that a formal procedure need not be held where no officer “could reasonably anticipate that identification would be an issue at the trial of the defendant”. There is an objective element to this, as evidenced by the inclusion of “reasonably”. In practice, it is likely to be a rather difficult assessment for officers to undertake, particularly at an early stage in an investigation.

Answer 175

Recognition of the suspect by the eyewitness may make a formal procedure unnecessary (R v EdmondsF F[2009] NZCA 303). However,F the Court in Harney v R [[2011] NZSC 107 at [27] and [28] clarified that:

Answer 176

“It does not follow, of course, that merely because identification evidence takes the form of recognition of a person known to the defendant, that factor will necessarily provide a good reason for dispensing with a formal procedure. It will not do so unless the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged offending that a formal procedure would be of no utility. Where a procedure would serve a “useful purpose” from the point of view of the defence, in that it may expose an element of unreliability in the identification, there will not be good reason in terms of s 45(1). The sufficiency of the familiarity of the witness with the defendant’s appearance and utility of a formal procedure need to be gauged in the individual case.”

Answer 177

``` Section 45(4)(e) recognises that identifications made shortly after the occurrence of the offence may make a further, formal, procedure unnecessary. ``` For example, a witness may be able to point out the offender to a police officer arriving at the scene of the offence.

Answer 178

The provision in s 45(4)(e) aims to avoid tainting of the evidence, and to allow the police to take advantage of an dentification made immediately after the event, when it is still fresh in the witness’s mind.

Answer 179

The identification under s 45(4)(e) must be made in the course of the officer’s initial investigation, which signals that identifications made after other evidence gathering or where the police have a suspect in mind should not suffice.

Answer 180

Section 45(4)(f) deems a formal procedure to be unnecessary where the witness identifies the alleged offender after a chance meeting. Clearly, a “chance” meeting that is in fact orchestrated — for example taking a witness to stand outside the suspect’s place of work until he or she leaves the building — will not constitute a good reason under s 45(4)(f). In practice, the line between chance and organized meetings may sometimes be difficult to discern.

Answer 181

Section 4 Evidence Act 2006 defines “voice identification evidence” as evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Answer 182

Section 46 Evidence Act 2006 governs the admission of voice identification evidence, and sets out a general rule of inadmissibility:

Answer 183

Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.

Answer 184

Therefore, the prosecution only have to prove that the voice identification evidence is probably reliable. This is rather strange, given that despite the concern that voice identification is less reliable than visual identification, the standard under s 45(2) is proof beyond reasonable doubt, a significantly higher standard than under s 46.