Elements of Evidence

Question 1

What is the Purpose of evidence law

Answer 1

Purpose
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; 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.

Question 2

What is Circumstantial evidence

Answer 2

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof 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 3

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

Answer 3

• judicial notice is taken

* the facts are formally admitted

Question 4

What is a presumption?

Answer 4

Where no direct evidence is offerde or obtainable disputed facts are sometimes inferred from other facts which are themselves proved or known. In such cases, the inference is called a presumption.
Presumptions may be of law or of fact.

Question 5

Presumptions of law

Answer 5

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

Question 6

Presumptions of fact

Answer 6

Presumptions of fact are those that the mind naturally and logically draws from the given facts. For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.
Presumptions of fact are simply logical inferences, and so are always rebuttable

Question 7

Who decides on admissibility

Answer 7

The judge

Question 8

Evidence is admissible if it can be

Answer 8

legally received by a court. If evidence cannot be received, it is inadmissible.

Question 9

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These principals are based on

Answer 9

• relevance
• reliability
• unfairness

Question 10

Relevant evidence is defined as any

Answer 10

“evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”

Question 11

Example of evidence that is not admissible but relevant

Answer 11

For example, evidence that was improperly obtained may be relevant, but may not be admissible

Question 12

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 12

• 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 13

Define s 8 Evidence Act - General exclusion

Answer 13

8 General exclusion

(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.

Question 14

Section 8 test

Answer 14

The s 8 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 15

Evidence will be admitted under s 8 if its

Answer 15

probative value outweighs the risk of any unfairly prejudicial effect on the proceeding, or if it is strong enough to justify a prolonging of the proceeding.

Question 16

Can evidence not otherwise admissible be admitted if parties agree

Answer 16

Yes

Question 17

All facts in issue and facts relevant to the issue must be proved by evidence. The two exceptions

Answer 17

are where judicial notice is taken of facts, and when facts are formally admitted.

Question 18

What are the six objectives of the Evidence Act 2006 as set out in s6?

Answer 18

The purpose of the Act is to help secure the just determination of proceedings by:
− providing for facts to be established by the application of logical rules
− providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990
− promoting fairness to parties and witnesses
− protecting rights of confidentiality and other important public interests
− avoiding unjustifiable expense and delay, and
− enhancing access to the law of evidence.

Question 19

What are the two ways in which unfairness usually arises and may result in the exclusion of evidence?

Answer 19

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. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods.

Question 20

What is judicial notice

Answer 20

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 21

How is evidence determined if it is admissable

Answer 21

Evidence is admissible if it can legally be received by the courts