Elements of evidence

Question 1

*What is the purpose of the Act and the 6 objectives?

HSJDP

(a) FE Ap LR
(b) ROE R BOR90
(c) FPW
(d) RC&OIPI
(e) AUED
(f) EALOE

Answer 1

The Act aims to “help secure the just determination of proceedings” through the six objectives set out in s6:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.

Question 2

• In regards to good evidence explain:
• facts that prove the charge (FPElC, EvFPC)
• facts in issue (FNP)
• Circumstantial evidence (FJJIExFI)

Answer 2

The facts must prove the elements of the charge, and the evidence should be made up of facts that prove that charge.

The facts in issue are the facts which in law need to be proven to succeed with the case. In criminal cases, the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof of a fact in issue. As more circumstances lead to the inference, the chain of circumstantial evidence becomes stronger, to the point where the pieces of circumstantial evidence, viewed as a whole, are sufficient to prove guilt.

Question 3

*What is the general rule of evidence and what are the two main exceptions

FIPEv
JN FFA

Answer 3

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence.

The two main exceptions to the general rule are when no evidence needs to be given of facts because:
• judicial notice is taken
• the facts are formally admitted.

(Uncontroverted facts)

Question 4

*What is a judicial notice?

Answer 4

When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

Question 5

**Explain presumptions of law

IDLPF
CR

Answer 5

Presumptions of law are inferences that have been expressly drawn by law from particular facts.
Presumptions of law may be either conclusive or rebuttable.

Question 6

**Explain presumptions of facts

TMNLDGF

Answer 6

Presumptions of fact are those that the mind naturally and logically draws from the given facts.

Question 7

*What principles of evidence law do the court reference when deciding whether evidence is admissible?

Answer 7

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. 
• relevance 
• reliability 
• unfairness 
(Public interest)

Question 8

*Explain Sec 7 Fundamental principle that relevant evidence admissible

Answer 8

Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 9

*Evidence may b excluded if it would result in unfairness. What two ways does it usually arise?

RUPP
OCWMAADU

Answer 9

Evidence may be excluded if

• it would result in some unfair prejudice in the proceeding.
• it has been obtained in circumstances that would make its admission against the defendant unfair.

Question 10

*Explain S8(1) General exclusion
What must the Judge take into account?

JEXEV PrV OR

(a) UPEP
(b) NPP

Answer 10

8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

Judge must take into account the right of the defendant to offer an effective defence.

It is intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding.

Question 11

*What is the Sec 8 test?

Answer 11

The s8 test involves balancing the probative value of evidence against the risk that it will:
• have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or
• “needlessly prolong the proceeding” (s8(1)(b)).

Question 12

• Explain provisional admissibility and evidence on “voir dire”

Answer 12

S14 The Judge may admit any evidence, subject to further evidence being offered later which establishes its admissibility

S15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a “voir dire”, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as “preliminary facts”.

S15 applies to all witnesses (not only defendants), and to evidence given in any type of hearing held to determine the admissibility of evidence.

Question 13

• What was found in Hart v R

Answer 13

Admissible evidence may be used in different ways and for different purposes in a proceeding, not necessarily only for the purpose for which it has been admitted.

The Supreme Court in Hart v R has confirmed this approach, stating that “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”