Elements of Evidence

Question 1

Section 6, Evidence Act 2006
Purpose of the Act

Answer 1

To help secure the just determination of proceedings.

By:
(a) Providing facts to be established by the application of logical rules, and
(b) Providing rules of evidence that recognises the rights of NZ BORA 1990, and
(c) Promoting fairness
(d) Protecting rights of confidentiality and public interests, and
(e) Avoiding unjustifiable expense and delay, and
(f) Enhancing access to the law of evidence

Question 2

Facts in issue

Answer 2

The facts which need to be proven to succeed with the case (elements of the offence)

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

Question 3

Circumstantial evidence

Answer 3

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue i.e. indirect proof of a fact in issue

Question 4

General rule of evidence

Answer 4

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

Question 5

Exceptions to the general rule (2)

Answer 5

When no evidence needs to be given of facts because:
- Judicial notice is taken
- Facts are formally admitted

Question 6

Judicial notice

Answer 6

Where the court declare that it will find that the facts exists (s128) or will direct the jury to do so even though evidence has not been established that the facts exist (s129)

Example: The date of Christmas being 25 December

Question 7

Section 128(1) - Notice of uncontroverted facts

Answer 7

Relates to facts that are known or accepted generally, that cannot reasonably be questioned (e.g. date of Christmas)

Question 8

Section 129(1) - Admission of reliable published documents

Answer 8

Relates to matters of public history, literature, science or art. Judge may admit as evidence any published document that is considered to be reliable sources of information

Question 9

Presumptions

Answer 9

Disputed facts or sometimes inferred from other facts which are themselves proved or known . This inference is called presumption and may be of law or facts

Question 10

Presumptions of law

Answer 10

Presumptions of law are inferences that have been expressly drawn by law from particular facts.

They may either be conclusive or rebuttal

Question 11

Presumptions of fact

Answer 11

Presumptions of facts are logical inferences drawn from the given facts

They are always rebuttal

Question 12

Three principles of whether evidence is admissible

Answer 12

(1) Relevance
(2) Reliability
(3) Unfairness

Question 13

Section 7 - Relevant evidence admissible

Answer 13

(1) All relevant evidence is admissible in a proceeding except evidence that is -
(a) inadmissible under this Act or any other Act
(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

Facts must be relevant AND admissible to be received in evidence

Question 14

Reliability

Answer 14

Relevant evidence may sometimes be excluded (or included but with a judicial warning) if it is regarded as unreliable

Question 15

Fairness

Answer 15

Relevant evidence may be excluded if it would result in unfairness. Usually arises in two ways:

(1) Would result in some unfair prejudice in the proceeding
(2) Has been obtained in circumstances that would make its admission unfair against the defendant

Question 16

Section 8 - General exclusion of evidence

Answer 16

(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 17

Unfair prejudicial effect

Answer 17

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 18

The right of the defendant to offer an effective defence - s8(2)

Answer 18

Relates to a defendant’s right to present a defence and the rights to a fair trial.

Question 19

Admission by agreement - section 9(1)

Answer 19

Allows for admission of evidence, even if it is not otherwise admissible, where the parties agree.

Judge may decline to admit the evidence.

Question 20

Section 14 - Provisional admissibility of evidence

Answer 20

A Judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.

If no other evidence forthcoming, the provisionally admitted evidence must be excluded from consideration

Question 21

Section 15 - Hearing in Chambers

Answer 21

Governs evidence by any witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Evidence given at a hearing in chambers will be admissible in other stages of the proceeding only if inconsistent with subsequent testimony at another stage of the proceeding.

Referred to as a hearing in chambers, where the jury is excluded from the courtroom for the duration of the admissibility hearing