Evidence Flashcards
Section 44, Evidence Act 2006
Evidence of sexual experience of complainants in sexual cases
(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge
(2) In an sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters
(3) In an application for permission under subsection (1), the judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
Section 87, Evidence Act 2006
Privacy as to witness’s precise address
Section 87 protects a witness from having to state their address and having question put to them about that information.
However these details maybe disclosed where the judge determines that they are directly relevant to the facts in issue and to exclude them would be contrary to the interest of justice
Section 88, Evidence Act 2006
Restriction on disclosure of complainants occupation in sexual cases
Section 88 protects complainants of sexual cases from having to disclose their occupation.
The Judge may grant permission if they are satisfied that the question to be put or evidence to be given is of sufficient direct relevance to the facts in issue and to exclude it would be contrary to the interests of justice
Corroborate - Definition
means to strengthen or support with other evidence, to make more certain
Section 121, Evidence Act 2006
Corroboration
Section 121 provides that, in any criminal proceeding the complainants evidence does not have to be corroborated.
This is especially important in sexual cases where the offence is often committed with no independent witnesses.
Section 35, Evidence Act 2006
Previous consistent statements
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) and (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if -
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall
Advantages of Visually recording evidence
- Greater quality and quantity of information obtained
- minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief
- reducing contamination by the interviewer through the process of transposing the interview into a statement
- providing a valuable means for the witness to refresh their memory before the judicial proceedings
Section 103, Evidence Act 2006
Directions about alternative ways of giving evidence
(1) In any proceeding, the Judge may, either on the application of a party or on the Judge’s own initiative, direct that a witness is to give evidence in chief and be cross-examined in the ordinary way or in an alternative way as provided in section 105.
(2) An application for directions under subsection (1) must be made to the Judge as early as practicable before the proceeding is to be heard, or at any later time permitted by the court.
(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) the age or maturity of the witness:
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness:
(c) the trauma suffered by the witness:
(d) the witness’s fear of intimidation:
(e) the linguistic or cultural background or religious beliefs of the witness:
(f) the nature of the proceeding:
(g) the nature of the evidence that the witness is expected to give:
(h) the relationship of the witness to any party to the proceeding:
(i) the absence or likely absence of the witness from New Zealand:
(j) any other ground likely to promote the purpose of the Act.
(4) In giving directions under subsection (1), the Judge must have regard to—
(a) the need to ensure—
(i) the fairness of the proceeding; and
(ii) in a criminal proceeding, that there is a fair trial; and
(b) the views of the witness and—
(i) the need to minimise the stress on the witness; and
(ii) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and
(c) any other factor that is relevant to the just determination of the proceeding.
Section 105, Evidence Act 2006
Alternative ways to give evidence
(1) A Judge may direct, under section 103, that the evidence of a witness is to be given in an alternative way so that—
(a) the witness gives evidence—
(i) while in the courtroom but unable to see the defendant or some other specified person; or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or
(iii) by a video record made before the hearing of the proceeding:
(b) any appropriate practical and technical means may be used to enable the Judge, the jury (if any), and any lawyers to see and hear the witness giving evidence, in accordance with any regulations made under section 201:
(c) in a criminal proceeding, the defendant is able to see and hear the witness, except where the Judge directs otherwise:
(d) in a proceeding in which a witness anonymity order has been made, effect is given to the terms of that order.
(2) If a video record of the witness’s evidence is to be shown at the hearing of the proceeding, the Judge must give directions under section 103 as to the manner in which cross-examination and re-examination of the witness is to be conducted.
(3) The Judge may admit evidence that is given substantially in accordance with the terms of a direction under section 103, despite a failure to observe strictly all of those terms.
Section 107, Evidence Act 2006
Alternative ways of giving evidence by child witnesses in criminal proceedings
(1) A child witness, when giving evidence in a criminal proceeding, is entitled to give evidence in 1 or more alternative ways so that—
(a) the witness gives evidence in 1 or more of the following ways:
(i) by a video record made before the hearing of the proceeding:
(ii) while in the courtroom but unable to see the defendant or some other specified person:
(iii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere:
(b) by use of any appropriate practical and technical means the Judge, the jury (if any), and any lawyers can see and hear the witness giving evidence, in accordance with any regulations made under section 201:
(c) the defendant can see and hear the witness, unless the Judge directs otherwise.
(2) If a video record is shown as a child witness’s evidence in chief, the witness is entitled to give the other parts of his or her evidence, including any further evidence in chief, in 1 or more other alternative ways.
(3) To avoid doubt, section 106 applies to a video record offered as an alternative way of giving evidence under this section.
(4) Any party intending to call a child witness must provide every other party and the court with a written notice stating the 1 or more alternative ways in which the witness will give his or her evidence.
(5) Unless a Judge permits otherwise, the notice required under subsection (4) must be given no later than when a case management memorandum (for a judge-alone trial) or a trial callover memorandum (for a jury trial) is filed under the Criminal Procedure Act 2011.
(6) If a party has given notice under subsection (4) and it is no longer possible or desirable for the witness to give evidence by the means stated in the notice, the party may file an amended notice but must do so as early as practicable before the case is to be tried.
(7) This section is subject to sections 107A and 107B.
