Elements of Evidence

Question 1

6 objectives of the Evidence Act 2006?

Answer 1

• Enhancing access to the law of evidence
• Avoiding unjustifiable expense and delay
• Protecting rights of confidentiality and other important public interests
• Promoting fairness to witnesses and parties
• Providing for facts to be established by application of logical rules.
• Providing rules of evidence that recognise the importance of the rights affirmed by the NZBORA 1990

Question 2

Explain the term “facts to prove the charge”

Answer 2

• 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 the mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 3

What are the presumptions of law?

Answer 3

Inferences that have been expressly drawn by law from particular facts, may be either conclusive or rebuttable.

e.g. a child under 10 is unable to be convicted

Question 4

Presumption of fact?

Answer 4

Those that the mind naturally and logically draws from the given facts. They are simply logical inferences, and so are always rebuttable.

Question 5

What is the general rule in relation to establishing facts?

Answer 5

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

Question 6

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence and the two main exceptions are?

Answer 6

• Judicial notice is given
• Facts are formally admitted

Question 7

Explain the concept of judicial notice - s128 and s129

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 the evidence has not been established that the fact exists.

Question 8

It is not necessary in court to prove uncontroverted facts. These are admitted as

Answer 8

Judicial notice

Question 9

It is not necessary to prove fact such as the date of Christmas. These facts are admitted as

Answer 9

Judicial notice

Question 10

Four principles used to determine admissibility?

Answer 10

Reliability
Relevance
Unfairness
Public Interest

Question 11

Fundamental condition for the admissibility of evidence is that is must be relevant. According to s7 when might relevant evidence NOT be admissible in proceedings?

Answer 11

• Inadmissible under this act or any other act
• Excluded under the act or any other act

Question 12

What does the term “relevant evidence” NOT include

Answer 12

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 is relevant

Question 13

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

Answer 13

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding
• Evidence may be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair

Question 14

s8 provides that the judge must exclude evidence it its probative value is outweighed by the risk that the evidence will one of two things, name both

Answer 14

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

• have an unfairly prejudicial effect on the proceeding or
• Needlessly prolong the proceeding

Question 15

Explain s15 of Evidence Act 2006

Answer 15

Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

These hearings are referred to as “hearings in chambers”. facts determined at a hearing in chambers are sometimes referred to as preliminary facts

Question 16

Specific restrictions aside, if evidence is admitted, for what purposes can it be used?

Answer 16

Once evidence is admitted, it can generally be used for all purposes.