Elements of evidence

Question 1

What is the aim of the evidence act and evidence law?

Answer 1

To “help secure the just determination of proceedings”, through 6 objectives set out in Sec6 EA 2006

Question 2

What are the 6 objectives set out in Sec 6 EA 2006?

Answer 2

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 rights affirmed by the NZ 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 tot he law of evidence.

Question 3

When can common law cases be used to help decide what evidence can be admitted?

Answer 3

Only in circumstances where they are consistant with the purposes and principles of the EA 2006

Question 4

What are Facts that prove the charge?

Answer 4

The facts are those facts which prove the elements of the charge. The evidence should be made up of these facts.

Question 5

What are the facts in issue?

Answer 5

Facts in issue are the facts which need to be proven in law to succeed with the case.

Facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.

Question 6

What is circumstantial evidence?

Answer 6

Is a fact from which the judge or jury can infer the existence of a fact in issue.

It offers indirect proof of a fact in issue.

Question 7

The general rule of evidence and exceptions to the rule:

Answer 7

The general rule of evidence is that all facts in issue must be proven by evidence.

The two exceptions are:

• when judicial notice is taken
• The facts are formally admitted.

Question 8

Judicial Notice:

Notice of uncontroverted facts

(act and section?)

Answer 8

Sec 128 EA 2006:
1) judge or jury can take notice of generally, or locally, known facts that cannot reasonably be questioned

2) Judge can take notice of facts capable of accurate determination by reference to sources whose accuracy cannot reasonably be questioned, and direct the jury in relation to this.

Question 9

Judicial notice:

Admission of reliable published documents.

(act and section?)

Answer 9

Sec 129 EA 2006:
1) A judge may admit as evidence any published documents relating to history, literature, science or art, that he considers reliable sources of information. (i.e: maps / scientific works)

Question 10

Facts formally admitted: Sec 9(2) and 9(3) EA 2006

Answer 10

Under sec 9(2) and 9(3) prosecution or defence can admit to a fact, and therefore that fact need not be proved.

Question 11

Presumptions of fact:

Answer 11

Presumptions of fact are logical inferences drawn from known facts, and are always rebuttable.

i.e: presumption that a person has guilty knowledge if they are in possession of stolen goods.

Question 12

Presumptions of law:

Answer 12

Presumptions of law are inferences that have been expressly drawn by law from particular facts.

They can be either conclusive or rebuttable.

Question 13

when is evidence admissible?

Answer 13

When it can be legally received by the court.

Question 14

What are the three principals used to determine if evidence is admissible?

Answer 14

• Relevance
• Reliability
• Unfairness

Question 15

Relevance of evidence: Sec 7 (1) and Sec 7 (2) EA 2006

Answer 15

Sec 7: Fundamental principal 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 16

Definition of relevant evidence:

Answer 16

Evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Sec 7(3) EA 2006

Question 17

What may happen with evidence that is unreliable?

Answer 17

Evidence may be excluded if it is relevant but not reliable. Or it may attract a judicial warning if it is regarded as unreliable.

Question 18

Two reasons why evidence would be excluded due to it being unfair:

Answer 18

• If it would result in unfair prejudice to the proceeding

- If the evidence was obtained in circumstances that were unfair to the defendant.

Question 19

Unfairness and the general exclusion rule, Sec 8 EA 2006:

Answer 19

8 (1) - the judge must exclude evidence if its probative value is outweighed by the risk the evidence will:

a) have an unfairly prejudicial effect on the proceeding, OR
b) needlessly prolong the proceeding.

Question 20

What is the sec 8 test?

Answer 20

Balancing the probative value of the evidence against the risk that it will:

• have an unfairly prejudicial effect (sec 8(1)(a)), OR
• needlessly prolong the proceeding (sec 8(1)(b)).

Question 21

What is provisionally admitted evidence:

act and section

Answer 21

Evidence that is admitted on the provision that some later evidence will establish this evidence admissibility.
sec 14 EA 2006

Question 22

‘Voir dire’ evidence,

Answer 22

Evidence given by a witness to establish the facts that some other evidence is admissible. Also known as preliminary facts. sec 15 EA 2006

Evidence given as voir dire will only be admissible in the proceeding if it demonstrates that witnesses inconsistency with their subsequent testimony.