Elements of Evidence

Question 1

Section 6 Evidence Act 2006

- Purpose

Answer 1

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
b) providing rules of evidence that recognise the importance of the rights affirmed by the NZ BOR Act 1990
c) promoting fairness to parties and witnesses
d) protecting rights of confidentiality and other important public interests
e) avoiding unjustifiable expense and delay
f) enhancing access to the law of evidence

Question 2

General rule & Exception

Answer 2

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

The two main exceptions are when no evidence needs to be given of facts because:

• judicial notice is taken
• the facts are formally admitted

Question 3

Judicial Notice

Answer 3

Court declares that it will find that a fact exists, or will direct a jury to do so even though evidence has not been established that the fact exists.
The evidence Act provides for judicial notice in Section 128 & 129

Question 4

Evidence Act 2006
Section 128

Notice of uncontroverted facts

Answer 4

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 5

Evidence Act 2006
Section 129

Admission of reliable published documents

Answer 5

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 6

Presumptions

Answer 6

Presumptions are where there is no direct evidence so disputed facts are inferred from other facts which are proved or known.

Presumption may be of law or fact.

LAW - are inferences that have been expressly drawn by law from particular facts, may be either conclusive or rebuttable.

FACT - are those the mind naturally and logically draws from given facts. They are always rebuttable.

Question 7

Admissibility of evidence

Answer 7

• Judge decides on admissibility.
• Relevance
• Reliability
• Unfairness

Question 8

Section 7
Evidence Act 2006

Fundamental principle that relevant evidence admissible

Answer 8

(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

Section 8
Evidence Act 2006

General Exclusion

Answer 9

(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 the 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 10

Unfair predujice

Answer 10

Will typically refer to the danger that a trier of fact finder will give some piece of evidence more weight than it deserves, be misled or use evidence for an illegitimate purpose.
Section 8 allows exclusion of evidence that is unfair for either party’s case or is likely to distract from the real issues in the trial.

Question 11

Admission by agreement

Section 9

Answer 11

Section 9 allows for admission of evidence that may not otherwise be admissible when both parties agree.
However the Judge retains control and may not allow it even with the agreement from both parties.

Question 12

Provisional admissibility

Section 14

Answer 12

Section 14 Provides that where a question arises concerning admissibility of any evidence, the Judge may admit the evidence subject to further evidence being offered later which establishes it admissibility.
If the other evidence is not forthcoming the provisionally admitted evidence must be excluded

Question 13

Hearing in Chambers

Section 15

Answer 13

Section 15 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted during the proceeding.
The jury maybe excluded from the courtroom for the duration of the admissibility hearing.
*Applies to all witnesses (not just Defendants)
**also known as ‘hearing in chambers’ and sometimes ‘preliminary hearing’.

Question 14

Various sections that specifically limit the use to which some evidence can be put . . .

Answer 14

Section 27 - Controls the use of pre-trial statements of defendants and co-defendants

Section 31 - Forbids the prosecution from relying on certain evidence offered by the Defendants in a criminal case

Section 32 - Forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt