Elements of Evidence

Question 1

When will evidence be admitted under S8

Answer 1

If it’s probative value outweighs the risk of any unfairly prejudicial effect on the proceeding, or if it is strong enough to justify prolonging the proceeding.

Question 2

What is provisional admissibility evidence under S14 EA 2006?

Answer 2

Where the question arises concerning the admissibility of any evidence, the judge may admit the evidence subject to further evidence being offered later which establishes its admissibility. If this other evidence is not forthcoming, the provisionally admitted evidence must then be excluded.

Question 3

What is an example of a presumption of law that is rebuttable?

Answer 3

That all defendants are innocent until proven guilty.

Question 4

What section relates to relevance of evidence?

Answer 4

7
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 5

What are the three points of determining if evidence is admissible?`

Answer 5

• Relevance
• Reliability
• Unfairness

Question 6

S129 EA 2006

Answer 6

129
Admission of reliable published documents
(1)
A Judge may, in matters of public history, literature, science, or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.
(2)
Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).

Question 7

What are the two ways that unfairness usually arises from?

Answer 7

• if it would result in some unfair prejudice in the proceeding
• Where evidence has been obtained in circumstances that would make it unfair to the defendant.

Question 8

What are the facts in issue?

Answer 8

The facts which in law need to be proven to succeed with the case.

In criminal cases the facts are usually those which are alleged by the charging document and denied by a not guilty plea.

Question 9

What is a voir dire hearing?

Answer 9

A preliminary facts hearing.

Question 10

Can presumptions of fact be conclusive and rebuttable?

Answer 10

No, only rebuttable.

Question 11

What section deals with the general exclusions?

Answer 11

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.
(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.

Question 12

What makes evidence admissible?

Answer 12

If it can be legally received by a court.

Question 13

What is circumstantial evidence?

Answer 13

Is a fact from which the judge or jury can infer the existence of a fact in issue and as such, offers indirect proof of a fact in issue.

Question 14

What happens if evidence is unfair?

Answer 14

It may be deemed inadmissible even though it is relevant.

Question 15

What is a presumption of fact?

Answer 15

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

Question 16

What is the general rule of evidence?

Answer 16

Evidence is either admissible for all purposes or it is not admissible at all.

Question 17

Must must be taken into account for an assessment under S8(1)(a)?

Answer 17

The right for the defendant to offer an effective defence.

Question 18

What are exceptions to the general rule of proving facts?

Answer 18

Two main exceptions:

• judicial notice is taken
• facts are formally admitted

Question 19

What can presumptions be in relation to?

Answer 19

Law or fact

Question 20

Hoe does S15 EA 2006 affect evidence given by witnesses?

Answer 20

It governs the evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted under s14.
Evidence given in a voir dire hearing will be admissible at any later stage in the hearing if it is inconsistent with the testimony given by the witness and is admissible to show the inconsistency.

Question 21

What are presumptions of law?

Answer 21

Inferences that have been expressly drawn by ;aw from particular facts and can be conclusive or rebuttable.

Question 22

What is an example of a presumption of law that is conclusive?

Answer 22

That a child under 10 cannot be convicted.

Question 23

What is relevant where facts are formally admitted?

Answer 23

Counsel for either party can accept that some evidence is accepted or proven and S9(2) and S9(3) EA 2006 provide that either can admit any fact and therefore dispense with proof of the fact.

Question 24

Can evidence be used in different ways and for different purposes in a proceeding?

Answer 24

Yes, it does not necessarily need only be for the purpose for which it was admitted.

Question 25

What is a presumption?

Answer 25

Where no evidence is offered or obtainable, disputed facts can be inferred from other facts which are themselves proven or known.

Question 26

What is judicial notice?

Answer 26

Is when the court 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 27

What is an example of a presumption of fact?

Answer 27

Guilty knowledge of a person if they are in possession of recently stolen goods

Question 28

What is the section 8 test

Answer 28

Involves balancing the probative value of evidence against the risk that it will

• have an unfairly prejudicial effect on the proceeding
• needlessly prolong the proceeding

Question 29

What is the aim of the evidence act?

Answer 29

to help secure the just determination of proceedings.

Question 30

In summary, what does section 8(1)(b) exclude?

Answer 30

Evidence that would unnecessarily prolong the proceeding (eg defence calling 20 character witnesses, the judge may reduce this to 1 or 2 witnesses)

Question 31

What is covered under S9(1) EA 2006

Answer 31

The admission of evidence (even when inadmissible) if all parties agree. However in R v Hannigan it was found that the judge retains control over this process and may exclude the evidence even though all parties agree to it’s admission.

Question 32

Are relevant facts always admissible?

Answer 32

No

Question 33

S128 EA 2006

Answer 33

128
Notice of uncontroverted facts
(1)
A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.
(2)
A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.

Question 34

What was held in R v Burrows?

Answer 34

That the party wishing to bring the evidence has the burden of showing the evidence is admissible. It is illogical to require the Crown to show admissibility beyond reasonable doubt because circumstantial facts do not have to be proven to that standard. Admissibility is essentially a question of law which has no room for that applicant of varying standards of proof. Any evidence on which an individual jury might rely in reaching a conclusion as to guilt is admissible.

Question 35

What are some of the provisions that limit the general rule of evidence?

Answer 35

s27 - controls the use of pre-trial statements of defendants and co-defendants

s31 - forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
s32 - forbids the fact-finder from using a criminal defendants pre-trial silence as evidence of guilt

Question 36

What is the general rule about proving facts?

Answer 36

All facts in issue and facts relevant to the issue must be proved by evidence.

Question 37

What is S6 EA 2006?

Answer 37

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.