Elements of Evidence

Question 1

• S6 - Purpose of Evidence Law

Answer 1

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

S6 will affect the decisions that are made about evidence in cases that you present.

Question 2

• Facts that prove the charge

Answer 2

Good evidence establishes what you are trying to prove. The facts must prove the elements of the charge, and the evidence should be made up of facts that prove that charge.

Question 3

• Facts In Issue

Answer 3

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

Question 4

Circumstantial Evidence

Answer 4

Circumstantial evidence is a fact from which the judge or jury may infer the existence 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 5

General Rule

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

Answer 6

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 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

S128 & 129 - Judicial Notice

Answer 8

Section 128 is concerned only with facts that are facts in issue or relevant to a fact in issue.

Section 129 codifies the common law exception to the hearsay rule that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature.

Question 9

S9 - Facts Formally Admitted

Answer 9

Provide that the defendant or the prosecution may admit any fact, and therefore dispense with proof of that fact.

Question 10

Presumptions

Answer 10

Where no direct evidence is offered or is obtainable, disputed facts are sometimes inferred from other facts which are themselves proved or known.

Presumptions may be of law or of fact.

Question 11

• Presumptions of Law

Answer 11

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

A conclusive and irrebuttable presumption would be that a child under ten years of age is unable to be convicted. A rebuttable presumption would be that all defendants are innocent until proven guilty.

Question 12

• Presumptions of Facts

Answer 12

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

Presumptions of fact are simply logical inferences, and so are always rebuttable.

Question 13

• Determining admissibility

Answer 13

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.

In R v Burrows -“The party wishing to bring the evidence has the burden of showing the evidence is admissible. Admissibility is essentially a question of law which has no room for the application of varying standards of proof.

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law.
- relevance
- reliability
- unfairness

Question 14

• S7 - Fundamental principle that relevant evidence admissible

Answer 14

(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 15

Relevance

Answer 15

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”. It includes direct evidence and circumstantial evidence.

Relevant facts are not always admissible. For facts to be received in evidence, they must be both relevant and admissible. For example, evidence that was improperly obtained may be relevant, but may not be admissible.

Once received, the degree of probative force, or “weight”, to be given to the evidence is a question for the judge alone or for the jury.

Inadmissibility or exclusion will usually be due to a lack of reliability, fairness, public interest, or a combination of these factors.

Question 16

Reliability

Answer 16

Relevant evidence may sometimes be excluded - or if admitted may attract a judicial warning because it is regarded as unreliable

Question 17

• S8 - Fairness and General Exclusion

Answer 17

Unfairness can cover a variety of situations and is a matter of
discretion for the trial judge. It usually arises in two ways:
- 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

Question 18

• General exclusion provision

Answer 18

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

General exclusion is mandatory (“must exclude”).

Question 19

Section 8 Test

Answer 19

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 20

• Evidence that would needlessly prolong the proceeding

Answer 20

Section 8(1)(b) excludes evidence that will needlessly prolong the proceedings (for example where a defendant wishes to call 20 witnesses to give evidence as to his or her veracity, section 8(1)(b) could be used by the judge to limit the evidence to one or two witnesses).

Question 21

• Admission by agreement

Answer 21

Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree.

Question 22

S15 - Provisional admissibility and evidence on ‘hearing in chambers’

Answer 22

Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Where the jury is excluded from the courtroom for the duration of the admissibility hearing.

Section 15 applies to all witnesses (not only defendants), and to evidence given in any type of hearing held to determine the admissibility of evidence. It is admissible in order to demonstrate the inconsistency.

Question 23

Limited Use of Evidence and Use for Multiple Purposes

Answer 23

This general rule is subject to various provisions of the Act specifically
limiting the use to which some evidence can be put, such as:
- s27, which controls the use of pre-trial statements of defendants and codefendants
- s31, which forbids the prosecution from relying on certain evidence
offered by defendants
- s32, which forbids the fact-finder from using a criminal defendant’s pretrial silence as evidence of guilt.