Elements of Evidence Flashcards
What is the purpose of Evidence law? Outline four of the six objectives set out in the act.
The purpose of this act is to help secure the just determination of proceedings by:
i. Enhancing access to the law of evidence
ii. Avoiding unjustifiable expense and delay
iii. Protecting rights of confidentiality and other important public interests
iv. Promoting fairness to witnesses and parties
v. Providing for facts to be established by application of logical rules.
vi. Providing rules of evidence that recognize the importance of the rights affirmed by the NZ BOR 1990
A Police Constable who prepares a court case must consider what makes good evidence, including the facts to prove the charge. Explain the term ‘facts to prove the charge’.
The facts must prove the elements of the charge and the evidence should be made up of facts that prove the charge.
The actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.
What are Presumptions of Law and give an example.
Presumptions of law are inferences that have been expressly drawn by law from particular facts, may be either conclusive or rebuttable.
E.g. A conclusive and irrebuttable presumption would be that a child under 10 is unable to be convicted.
What is Presumption of Fact? Give an example.
Presumption of fact are those that the mind naturally and logically draws from the given facts. They are simply logical inferences, and so are always rebuttable.
An example of presumption of fact is the presumption of innocence where a defendant is considered innocent until proven guilty. This presumption places the burden of proof on the prosecution to prove the defendant’s guilty beyond a reasonable doubt.
A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence. What are the two main exceptions?
The two main exceptions of the general rule are when no evidence needs to be given of facts because:
i. Judicial notice is given
ii. Facts are formally admitted
What are the two exceptions to the burden of proof being on the prosecution?
- Insanity - If the defence raises the issue of insanity, the burden of proving that the accused was insane at the time of the offence shifts from the prosecution to the defence.
- Self-defence - When a defendant claims self-defence, the burden of proving that their actions were in self-defence shifts from the prosecution to the defence.
Explain the concept of Judicial Notice- s128 and s129
- 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.
E.g. If the date of Christmas were a fact in issue.
In deciding whether evidence is admissible the courts have reference to certain principles……. or…. Principles to determine admissibility, What are the four Principles of Admissibility?
a. Reliability
b. Relevance
c. Unfairness
d. Public interest
The fundamental condition for the admissibility of evidence is that is must be relevant. According to section 7 of the Evidence Act 2008, when might relevant evidence NOT be admissible in proceedings?
- Inadmissible under this act or any other act
- Excluded under this act or any other act
Explain the term relevance
Evidence that has a tendency to prove or disprove anything that is of
consequence to the determination of the proceeding
Circumstances where this would be excluded (relevance)
It excludes any extraneous matters that do not relate to the precise issue or issues to be determined by the court. Evidence can be admitted on any basis for which it is relevant.
Even though evidence is relevant, it may be excluded if it would result in unfairness. Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways: Or relevant evidence may be excluded if its unfair (Prejudicial) Or… What are the two ways in which unfairness may arise in regards to evidence?
a. Evidence may be excluded if it would result in some unfair prejudice in the proceeding
b. Evidence may be excluded if it is obtained by unfair or improper means.
Explain the Section 8 test….or….Section 8 of the Evidence Act provides that the judge must exclude evidence if its probative value is outweighed by the risk that the evidence will one of two things, name both
a. The s8 test involves balancing the probative value of evidence against the risk that it will:
i. Have an unfairly prejudicial effect on the proceeding or
ii. Needlessly prolong the proceeding
Explain ‘Voir Dire’ - To see to say
A hearing where evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
Facts determined at a voir dire are sometimes referred as preliminary facts.
Specific restrictions aside, if evidence is admitted, for what purposes can it be used?
Once evidence is admitted, it can generally be used for all purposes.
“The statue proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all (Hart).
