Elements of Evidence

Question 1

Purpose of Evidence Law Legislation The Act aims to “help secure the just determination of proceedings” through six objectives:

Answer 1

S6 Evidence Act 2006 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
(d) protecting rights of confidentiality and other important public interests; and
(c) promoting fairness to parties and witnesses; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.

Question 2

Good Evidence

Facts in issue

Answer 2

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

facts relevant to the facts in issue tend to prove or disprove a fact of issue

Question 3

Circumstantial Evidence

Answer 3

This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime)

Question 4

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

Answer 4

Hart v R “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

Question 5

General Rule of Evidence

Answer 5

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

Question 6

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

Answer 6

• judicial notice is taken • the facts are formally admitted.

Question 7

Judicial Notice Notice of Uncontroverted Facts Legislation

Answer 7

S128 Evidence Act 2006 (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.

Question 8

Judicial Notice Admission of Reliable Published Documents Legislation

Answer 8

S129 Evidence Act 2006 (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).

Question 9

Presumption of Law And example

Answer 9

Presumptions of law are inferences that have been expressly drawn by law from particular facts, they may be either conclusive or rebuttable. Example A child under ten years of age is unable to be convicted (Crimes Act 1961, section 21(1)).

Question 10

Presumption of Fact And example

Answer 10

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

Question 11

Determining Admissibility of Evidence In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law:

Answer 11

• Relevance • Reliability • Unfairness • Public interest

Question 12

Relevance Legislation Fundamental principle that relevant evidence admissible

Answer 12

Relevant evidence is defined as any evidence that has a tendency to prove or disprove anythig that is of consequence to the determination of the proceedings.

Includes direct evidence and circumstantial evidence.

Relevant facts are not alwasy admissible. Irrelevant facts alwasy inadmissible.

Question 13

Reliability

Answer 13

Relevant evidence may sometime be excluded or if admitted may attract a judical warning because it is regarded as unreliable.

Question 14

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 14

• 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. e.g. unfair confession

Question 15

General Exclusion Provision Legislation (Section 8 Test)

Answer 15

S8 Evidence Act 2006 It is to the first type of unfairness that the general exclusion provision in S8 sets out a general requirement for exlusion of evidence that is otherwise relevant and not excluded or rendered inadmissible by some specific provision.

• Having unfairly prejudical effect on the proceedings
• Needlessly pronlong the proceedings.

Question 16

Provisional Admissibility

Answer 16

S14 Evidence Act 2006 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. Of note If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.

Question 17

Voir Dire

Answer 17

S15 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. Of note 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 18

Limited Use of Evidence 3 provisions of the act limiting the use to which some evidence can be put:

Answer 18

• s27, which controls the use of pre-trial statements of defendants and co-defendants
• 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 pre-trial silence as evidence of guilt.