Elements of Evidence Flashcards
Purpose of evidence law
S6 Evidence Act sets out the propose of the Act.
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 NZ BOR Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding justifiable expense and delay; and
(f) enhancing access to the law of evidence
What makes good evidence…
Facts that prove the charge
(understand)
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 the charge
Facts relevant to the facts in issue tend to prove or disprove a fact in issue
Presumptions of law
Presumptions of law are inferences that have been expressly drawn by law from particular facts.
Presumption of lay may be either conclusive or rebuttable
Presumptions of fact
Are those that the mind naturally and logically draws from the given facts, eg one presumes that a person has guilty knowledge if they have possession of recently stolen goods
Relevance S7
7
Fundamental principle that relevant evidence admissible
(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
Fairness, and the general exclusion under s8
Even though evidence is relevant, it may be excluded if it would result in unfairness. Unfairness 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 be excluded where obtained in circumstances that would make its admission against the defendant unfair - eg where the defendant’s statement has been obtained by unfair or improper methods
General exclusion s8
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 proceeding; or
(b) needlessly prolong the proceeding
(2) In determining whether the probative value of the 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.
Section 8 test
The s8 test involves balancing the probative value of evidence against the risk that it will:
- have an “unfairly prejudicial effect on the proceeding” 8(1)(a)
- “needlessly prolong the proceeding” 8(1)(b)
Provisional admissibility and evidence on “voir dire”
S14 - where a question arises concerning admissibility of evidence, the Judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility
S15- governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
Hearing is called “voir dire” - jury excluded for duration of admissibility hearing. Facts determined at voir dire = preliminary facts.
Evidence will only be admissible if the evidence given by the witness at the voir dire is inconsistent with the subsequent testimony at same hearing.
Evidence admissible in order to show inconsistency
*In deciding whether evidence is admissible the courts have reference to certain principals of evidence law. These include:
relevance
reliability
unfairness
