Chapter 3: Rules Of Evidence Flashcards
Exclusive rules of evidence (6 rules) VIPHOI
Veracity
ID
Propensity
Hearsay
Opinion
Improperly obtained
*Rules when veracity doesn’t apply
If it’s an element of the offence e.g perjury
**In bail or sentencing hearings (Incl propensity) apart from s44 sexual experience In any matters and or sexual reputation in any matters
SA*S37 veracity inclusion consid VCIM
- may not be offered unless evidence substantially helpful
- If about defendant, must comply with s38 or s39
* 3. Judge can consider when deciding if helpful:
- Shows previous lack of veracity in proceedings
- Convicted of 1 or more that indicate a lack of veracity
- Previous inconsistent statements
- Bias on their part
- A motive to be untruthful - A party who calls a witness may not offer evidence to challenge their veracity unless Judge determines hostile
- may offer evidence to facts in issue contrary to evidence of witness
Substantially helpful
Must be for veracity evidence to be admissable
Higher threshold than relevence, decided by judge using s37.3
Insufficient test for prosecution evidence against defendant (s38) and defendent on co-defendant (s39)
Defendants veracity s38
1 a defendant may offer evidence about their veracity
2 prosecution may offer evidence about defendants veracity if (its relevant and)
- the defendant has already offered it
- defendant has challenged veracity of a witness and Judge permits prosecution to do so
Judge decides using extent to which it’s been challenged, time elapsed since any conviction, if it was elicited by prosecution in first place
must meet substantial helpful test
**Propensity evidence s40-43 PV>PE
Only allowed if probative value outweighs prejudicial effect (vercoe)
Includes actions and state of mind
Cannot include evidence of act or omission that is part of proceedings or offense
May be offered about any person
Only be offered about a defendant under s41-43
Only be offered about a asa complainant under s44
Propensity evidence does not include
- Evidence of act/omission that’s part of offence
- Evidence solely or mainly about veracity
Propensity evidenceby defendant s41
- Defendant may offer it about themselves (good character, open up to alibi)
- If they do, prosecution with judge permission may offer it about them too
Defendnt Prop evd by prosecution s43
Only offered if the probative value outweighs the risk that the evidence may have an unfair prejudicial effect
Judge decides and considers:
- frequency of ACTS OMISSIONS EVENTS CIRCS
- connection between time between AOEC
- similarity between AOEC
- number of people making the allegations
- unusualness of AOEC
Includes evidence of previous wrongdoing by defendant both BEFORE and AFTER offence
Requirements for admission under s43
- constitute propensity evidence by definition
- have a probative value in relation to issue in dispute
- that value outweighs risk of unfair prejudicial effect
Prosecution have onus to prove it outweighs effect.
Hearsay rule s17
A hearsay rule is not admissable unless
- as provided by this subpart or previous provisions of any act
- or in cases where this subpart does not apply
- hearsay statement is relevant and not otherwise inadmissible
Main exception to exclusionary rule s18
Hearsay statement admissable if:
- circumstances of statement provide reasonable reassurance that its reliable and either
- maker is unavailable as a witness or
- judge considers undue expense / delay for them to appear
So RELIABILITY and AVAILABILITY/UNDUE DELAY OR $$
*DUCC Hearsay exlusion
- unable to be cross examined
- Can’t see demeanor of person
- Danger the mistakes will be made regarding the statement I.e Chinese whispers
- undue weight to it being given if accepted so must be reliable
VCCN hearsay inclusion consid 16.1
*Court must consider - Nature of Statement Contents of S Circumstances related to the making of S " " veracity of the person " " accuracy of the observation
S18 unavailability/undue delay/expense
Unavailable if dead /outside nz / unfit due to age or physical issues / cannot be found / not compellable e.g sovereign
Hearsay statements via business records s19
Includes statement in officer nb of jobsheet
One contained in a business record is admissable if:
- the person who supplied it is unavailable
- the person cannot be reasonably expected to recollect the matters
- Judge determines undue expense or delay caused
Notice of requirement - hearsay statement s22
To encourage admissibility issues to be made pre-trial
If hearsay statement to be offered as evidence-
Party must provide written notice covering:
- intention to offer hearsay statement
- name of maker
- how it was made
- circumstances proving reliability
- why it’s a business record if under s19
- if they’re unavailable as witness, why
- if expense or delay, why
Hearsay statement must accompany the notice and provide sufficient time to other parties
Judge can dispense of of requirements
Opinion rule s23
Not admissable unless under s24 or s25
Opinions aren’t perceptions of facts, they’re conclusions drawn from perceptions
Aims to prevent unreliable, superfluous misleading evidence which wastes court time
SA*Non expert opinion evidence s24
2 criteria:
- only to effectively communicate the information provided by the witness to the fact finder
- stating an opinion from something they personally perceived e.g age of person, speed of car, weather
*Expert opinion evidence s25 (14 days notice) - substantial help
Admissable if the fact finder is likely to OBTAIN SUBSTANTIAL HELP in UNDERSTANDING EVIDENCE or ASCERTAINING ANY FACT in the proceedings, and is BASED ON PROVEN/TO BE PROVEN FACTS (when giving evidence in court)
If opinion evidence, must be -
That of an expert
Comprise of expert evidence
Offer substantial help to fact finder etc
*Conduct of experts QIRL
Must state: Demonatrate expertise by Qualifications Reasons for opinions Any literature used No evidence outside of their expertise Not advocating for any party Be impartial
SA*general exclusion propensity - PUI
- Where a witness offers a bare opinion it hold little probative weight
- There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact. It may be that the evidence would confuse the tribunal of fact and prolong proceedings
- A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible.
