Elements of Evidence

Question 1

Purpose of Evidence Law

Answer 1

S6 EA2006 - 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.

Outside of the Act, common law cases can be used to help decide which evidence might be admitted, but only in so far as they are consistent with the provisions of the Act and the promotion of its purposes and principles (s12).

Question 2

Facts that Prove the Charge

Answer 2

Good evidence establishes what you are trying to prove (in light of the other purposes in s6). The facts must prove the elements of the charge, and the evidence should be made up of facts that prove that charge. In each case, 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.

Question 3

Facts relevant to Facts in Issue

Answer 3

Facts relevant to the facts in issue tend to prove or disprove a fact in issue. If the only facts that are open to proof or disproof are facts in issue themselves, then many cases simply could not be proven as in many cases there are no witnesses to give direct evidence of a crime (or the facts in issue).

However, physical evidence may be located during a search, or witnesses may be found who can each supply a piece of evidence, which, when put together like a jigsaw, provide a picture of what happened. These are facts relevant to the facts in issue.

Question 4

General Rule of Evidence

Answer 4

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence.

Question 5

Exceptions to the General Rule of Evidence

Answer 5

The two main exceptions to the general rule are when no evidence needs to be given of facts because:
• judicial notice is taken.
• the facts are formally admitted.

Question 6

Judicial Notice

Answer 6

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 7

s128 EA2006 - Notice of Uncontroverted Facts

Answer 7

s128 - Notice of uncontroverted facts

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.
(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.

Section 128 is concerned only with facts that are facts in issue or relevant to a fact in issue. Section 128(1) concerns notice of facts known and accepted generally, or in the locality. This allows for facts to be judicially noticed even where the facts are not known in the wider, national population (for example, the date and location of an annual carnival).

Question 8

s129 EA2006 - Admission of reliable published documents

Answer 8

s129 - Admission of reliable published documents

(1) A Judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.
(2) Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).

Section 129 codifies the common law exception to the hearsay rule that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature.

Question 9

Facts Formally Admitted

Answer 9

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed. Sections 9(2) and 9(3) of the Evidence Act 2006 provide that the defendant or the prosecution may admit any fact, and therefore dispense with proof of that fact.

Question 10

Presumptions of Law

Answer 10

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

For example, a conclusive and irrebuttable presumption would be that a child under ten years of age is unable to be convicted (Crimes Act 1961, section 21(1)). These are, in effect, rules of substantive law as they refer to the substance of the law rather than the procedure contained in the law. A rebuttable presumption would be that all defendants are innocent until proven guilty.

Question 11

Presumptions of Facts

Answer 11

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 12

Determining Admissibility

Answer 12

Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible. No particular standard of proof attaches to decisions as to admissibility of evidence unless a particular provision of the Evidence Act 2006 provides for it (for example s45 of the Evidence Act relating to the admissibility of identification evidence). The judge decides on admissibility.

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the Evidence Act 2006:
• relevance
• reliability
• unfairness

Question 13

Relevance Legislation

Answer 13

s7 - 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.

Question 14

Reliability

Answer 14

Although unreliability is not a general ground of inadmissibility, the Act contains specific exceptions to this. Relevant evidence may sometimes be excluded - or if admitted may attract a judicial warning because it is regarded as unreliable (s122 is the primary section dealing with this). The Act contains some exclusionary rules that look to reliability, including rules relating to hearsay and identification evidence. For this reason, it is important to ensure that evidence obtained is reliable .

Question 15

General Exclusion Legislation

Answer 15

s8 EA2006 - 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.

(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.

Itis intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding. The judge has to conduct a “weighing up” process under s8(1). Once he or she decides that s8(1)(a) or (b) apply, the requirement of general exclusion is mandatory (“must exclude”).

Question 16

Fairness, and the general exclusion under s8 Evidence Act 2006

Answer 16

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:

• 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 (i.e where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion).

Question 17

Section 8 Test

Answer 17

The s8 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 18

Evidence that would have an unfairly prejudicial effect on the proceeding

Answer 18

Evidence will be admitted under s8 if its 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.

The risk of “unfair prejudice” will typically refer to 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. The s8 focus allows exclusion of evidence that is unfair for either party’s case, or is likely to be unfair for the proceeding as a whole by drawing jury members away from the real issues in the trial.

Question 19

Evidence that would needlessly prolong the proceeding

Answer 19

Section 8(1)(b) excludes evidence that will needlessly prolong the proceedings (for example where a defendant wishes to call 20 witnesses to give evidence as to his or her veracity, section 8(1)(b) could be used by the judge to limit the evidence to one or two witnesses).

Question 20

Take into account the right of the defendant to offer an effective defence

Answer 20

s8(2) EA2006 reflects s25(e) EA2006 (the right of criminal defendants to present a defence) and s25(a) (the right to a fair trial) of the New Zealand Bill of Rights Act 1990.

In finely balanced cases, s8(2) may make a difference – either to allow admissibility where the defence wish to offer the evidence, or to find that the evidence is inadmissible where prosecution evidence may risk an illegitimate prejudicial impact on the defence case.

Question 21

Admission by agreement

Answer 21

Section 9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. The Court in R v Hannigan highlighted that the Judge retains control of this process and may decline to admit the evidence even if all parties agree to its admission, or not allow its admission in the form agreed to by the parties.

Question 22

Provisional Admissibility

Answer 22

Section 14 of the Evidence Act 2006 provides that, where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility. If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.

Question 23

“Voir Dire”

Answer 23

Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Section 15 applies to all witnesses (not only defendants), and to evidence given in any type of hearing held to determine the admissibility of evidence.

Such a hearing is commonly referred to as a “voir dire”, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as “preliminary facts”. Evidence given at a voir dire will be admissible in other stages of the proceeding only if the evidence given by the witness at the voir dire is inconsistent with the witness’s subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency.

Question 24

Limited use of evidence and use for multiple purposes

Answer 24

Admissible evidence may be used in different ways and for different purposes in a proceeding, not necessarily only for the purpose for which it has been admitted.

Specific restrictions aside, if evidence is admitted tit can be generally admitted for all purposes. The Supreme Court in Hart v R has confirmed this approach, stating that “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

This general rule is subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such as:

• s27, which controls the use of pre-trial statements of defendants and codefendants
• s31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
• s32, which forbids the fact-finder from using a criminal defendant’s pretrial silence as evidence of guilt.