Elements of Evidence

Question 1

WHAT IS THE GENERAL RULE FOR ESTABLISHING FACTS?

Answer 1

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

Question 2

WHAT DOES SECTION 128 PROVIDE REGARDING JUDICIAL NOTICE?

Answer 2

Section 128 - Notice of uncontroverted facts

• 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. Allows facts to be judicially noticed even if the facts are not known in the wider population. eg. date and location of annual carnival

Question 3

PRESUMPTION OF LAW

Answer 3

Inferences that have been expressly drawn by law from particular facts.

Presumptions of law may be either rebuttable or irrebuttable

Question 4

PRESUMPTION OF FACTS

Answer 4

Those that the mind naturally and logically draws from the given facts.

Presumptions of fact are simply logical inferences and so are always rebuttalbe.

Question 5

WHAT ARE THE 3 PRINCIPALS OF EVIDENCE LAW?

Answer 5

• relevance
• reliability
• unfairness

Question 6

WHAT DOES SECTION 129 PROVIDE REGARDING JUDICIAL NOTICE?

Answer 6

Section 129 - Admission of reliable published documents

• 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 7

What does Section 6 of the Evidence Act 2006 cover?

Answer 7

• Sets out the purpose of the Act
• Significance to the courts’s decisions when interpreting the Act
• Exercising courts inherent powers
• Making decisions of admissibility of evidence when the Act or other enactment doesn’t provide an answer.

Question 8

VOIR DIRE HEARING

Answer 8

Section 14
Voir dire hearing is similar to a pre trial hearing.

It is when there has been a question raised concerning the admissibility of evidence.

It is conducted without a jury present.

Facts determined at a voir dire hearing are preliminary facts

Question 9

What is the aim of the Act?

Answer 9

Help secure the just determination of proceedings through the 6 objectives set out in Section 6.

Question 10

What are the 6 objectives in Section 6?

Answer 10

1 - providing for facts to be established by the application of logical rules

2 - providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990

3 - promoting fairness to parties and witnesses

4 - protecting rights of confidentiality and other important public interests

5 - avoiding unjustifiable expense and delay

6 - enhancing access to the law of evidence

Question 11

What else can be used to help decide which evidence may be admitted?

Answer 11

Common law cases

Question 12

What are the 2 exceptions to the general rule?

Answer 12

• judicial notice is taken

- the facts are formally admitted

Question 13

What is the fundamental condition for Section 7?

Answer 13

Evidence must be relevant

Question 14

Reasons for evidence to be inadmissible

Answer 14

• lack of reliability
• fairness
• public interest
• or combination of the above factors

Question 15

What are the two situations where evidence would be excluded due to being unfair?

Answer 15

• would result in some unfair prejudice in the proceeding

- evidence obtained unfairly or improperly

Question 16

Admission of evidence by agreement

Answer 16

Section 9(1) of the Evidence Act 2006 allows admission of evidence even if it is not otherwise admissible where the parties agree. But the Judge still has the power to decline to admit the evidence even if both parties agree.

Reference: R V Hannigan

Question 17

What does the Evidence Act allow to be proven?

Answer 17

Anything that is of consequence to the determination of the proceeding.

Question 18

What are the provisions of the Act regarding limiting evidence?

Answer 18

Section 27 - controls use of pre-trial statements of defendants and co-defendants

Section 31 - forbids prosecution from relying on certain evidence offered by defendants in a criminal case

Section 32 - forbids fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.

Question 19

Section 14 - provisional admissibility

Answer 19

When there are questions about admissibility of evidence, the Judge may admit the evidence in a Voir Dire hearing, awaiting evidence to be offered to make it admissible. If no evidence is forth coming, it must be excluded.

Question 20

Judicial notice

Answer 20

When a court takes judicial notice of a fact it means it declares the fact exists or will direct the jury to declare the fact exists.