chapter 3 - the exclusive rules of evidence

Question 1

the exclusive rules of evidence deal with what

Answer 1

the exclusive rules deal with things that cannot be given in evidence:

• veracity
• propensity
• hearsay
• opinion
• identification
• improperly obtained evidence

Question 2

what is veracity

Answer 2

veracity: a disposition to refrain from lying whether generally or in the proceeding

under s37(1) a person may not offer evidence about a persons veracity unless it is substantially helpful in assessing that persons veracity

Question 3

in deciding whether veracity is substantially helpful what would the judge consider

Answer 3

s37(3) of EA 2006 - in deciding whether veracity is substantially helpful the judge considers:

a) lack of veracity on the part of the person when under legal obligation to tell the truth (ie either in an earlier proceedings or in signed declaration)
b) person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
c) any previous inconsistent statements made by the person
d) bias on the part of the person
e) a motive on the part of the person to be untruthful

Question 4

when can the prosecution offer evidence about the defendants veracity

Answer 4

s38(2) the prosecution may offer evidence about a defendants veracity only if:

a) defendant offered evidence about his/her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and
b) the judge permits the prosecution to do so

Question 5

when determining whether to give permission to the prosecution to offer evidence about a defendants veracity, what may the judge take into account

Answer 5

s38(3) - any one of the following:

a) the extent to which the defendants veracity or the veracity of a prosecution witness has been put in issue in the defendants evidence
b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence
c) whether any evidence given by the defendant about veracity was elicited by the prosecution

Question 6

when does the court have discretion to include propensity evidence against a defendant

Answer 6

if the probative value of the evidence outweighs its prejudicial effect

Question 7

s40(1) what does propensity mean and what does it exclude

Answer 7

s40
(1)(a) means evidence about a persons propensity to act in a particular way or have a particular state of mind being evidence of acts, omissions, events or circumstances with which person is alleged to have been involved, but

b) does not include evidence of an act/omission that is:
i) one of the elements of the offence for which person is being tried OR
II) the cause of action in the proceeding in question

Question 8

what does propensity evidence include

Answer 8

• propensity as to actions

- propensity as to state of mind (eg lack of inhibitions, a love of violence)

Question 9

what does propensity evidence not include

Answer 9

s40(1)(b) EA 2006

does not include evidence of an act/omission that is:

i) one of the elements of the offence for which person is being tried OR
ii) the cause of action in the proceeding in question

Question 10

what are the requirements for the admission of propensity evidence under s43 set out in Rei v R

Answer 10

Rei v R held that the evidence must

a) constitute propensity evidence, that is evidence that tends to show a persons 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 the appellant is alleged to have been involved;
b) have a probative value in relation to an issue in dispute and other matters that may be relevant, including those prescribed in s43(3); and
c) have probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 11

for propensity evidence to be used in court what must the prosecution do first

Answer 11

the onus is on the prosecution to satisfy the court that the probative value of the evidence outweighs its the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 12

what must judge consider when assessing probative value of propensity evidence

Answer 12

s43(3) of EA 2006

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

Question 13

what must the judge consider when assessing the prejudicial effect of propensity evidence

Answer 13

s43(4) of EA 2006

When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—

(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 14

what is hearsay

Answer 14

s4 of EA 2006

hearsay statement means a statement that—

(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents

Question 15

What are the criteria for admissibility of hearsay statements

Answer 15

s18 of EA 2006

(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.

Question 16

why is hearsay not admissible

Answer 16

the rationale of the rule lies in the lack of reliability of hearsay evidence:

• where the maker of the statement is not called as a witness there is no opportunity to cross examine them regarding it’s contents, the circumstances in which it was made and so on
• juries cannot evaluate evidence properly without seeing the demeanour of the person who made the statement
• the danger witnesses will make mistake about meaning or contents of statements made by others eg. chinese whispers

Question 17

when is a person unavailable as a witness

Answer 17

s16(2) of EA 2006

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.

Question 18

what is the meaning of a business record

Answer 18

s16(1) of EA 2006

business record:
(a) means a document—

(i) that is made—
(A) to comply with a duty; or

(B) in the course of a business, and as a record or part of a record of that business; and

(ii) 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;

Question 19

what is an opinion

Answer 19

in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact

Question 20

why is opinion evidence unreliable, the general exclusionary rule

Answer 20

the justification for the general exclusionary rule include that:
- where witness offers a bare opinion it holds little probative weight

• there is danger that a witness offering opinion evidence will usurp the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence. The opinion evidence could 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 eg where an opinion is based largely on propensity evidence

Question 21

what two criteria must opinion evidence fulfil in order to be admissible

Answer 21

s24 of EA 2006

1. the opinion must be the only way to effectively communicate the information to the finder of fact
2. the witness must be stating an opinion (be it conclusion, inference etc) from something personally received

Question 22

in order to comply with s25 of EA 2006 the opinion must

Answer 22

• be that of an expert
• comprise expert evidence
• offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

Question 23

when is expert opinion evidence admissible

Answer 23

s25 of EA 2006

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

Question 24

what is an expert

Answer 24

expert means a person who has specialised knowledge or skill based on training, study, or experience (s4)

Question 25

what must defence do if they intend to call an expert witness

Answer 25

Disclosure Act 2008

• places an obligation on defence to give notice that they are calling expert witness.
• Must disclose experts brief or report or summary if no brief or report is available at least 14 days prior to fixed date for trial