Elements of Evidence

Question 1

What is the purpose of the Evidence Act 2006

Answer 1

help secure the just determination of proceedings

Question 2

Facts in Issue

Answer 2

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.

Question 3

Circumstancial evidence

Answer 3

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.

Question 4

Facts Relevant to the facts in issue

Answer 4

Facts relevant to the facts in issue tend to prove or disprove a fact in issue.

Question 5

General rule of evidence

Answer 5

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

Question 6

Exceptions to the general rule:

Answer 6

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.

Question 7

Judicial Notice

Answer 7

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 8

Facts formally admitted

Answer 8

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed.

Question 9

What i Admissible evidence?

Answer 9

Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible.

The judge decides on admissibility.

Question 10

What three principles of enidence law do the courts reference when determining the admissibility of evidence?

Answer 10

Relevance, Reliability, Unfairness.

Question 11

What is the fundamental principle for the admissibility of evidnce?

Answer 11

It must be relevant.

Relevant evidence is defined as any “evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”

Question 12

In what two ways can unfair evidence arise?

Answer 12

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
• Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

Question 13

When can evidence be exluded under s8?

Answer 13

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.

Question 14

What is the Section 8 Test

Answer 14

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 15

What does ‘Unfair prejudice refer to?

Answer 15

“unfair prejudice” will typically refer to the danger that a trier of fact will give some piece of evidence more weight than it deserves, be misled by evidence, or use evidence for an illegitimate purpose.

Question 16

What does s9 allow for in relation to admission by agreement?

Answer 16

Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. The Court in R v Hannigan12 highlighted that the Judge retains control of this process and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.

Question 17

What are the 6 objective of the evidence act in s6

Answer 17

(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.