Evidence Flashcards
Evidence of Sexual Experience of Complainants in Sexual Cases
44 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.
[(1A) Subsection (1) is subject to the requirements in section 44A.]
(2) In a 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.
(4) The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.
Propensity Rule 40 (3)
(3) However, propensity evidence about—
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.
Privacy as to Witness’s Precise Address
87 Privacy as to witness’s precise address
(1) In any proceeding, the precise particulars of a witness’s address (for example, details of the street and number) may not, without the permission of the Judge, be—
(a) the subject of any question to a witness or included in any evidence given; or
(b) included in any statement or remark made by a witness, lawyer, officer of the court, or any other person.
(2) The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.
(3) An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.
(4) Nothing in subsection (1) applies in a criminal proceeding if it is necessary to disclose the particulars in the charge in order to ensure that the defendant is fully and fairly informed of the charge
Restriction on disclosure of complainant’s occupation in sexual cases
88 Restriction on disclosure of complainant’s occupation in sexual cases
(1) In a sexual case, except with the permission of the Judge,—
(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation.
(2) The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.
(3) An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.
Corroboration
121 Corroboration
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.
Previous Consistent Statements Rule
35 Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) … applies to the statement.
[(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement—
(a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case.
Evidence Regulations 2007. Reg 8. What must be on video record.
8 What must be on video record
A video record of an interview must show the following:
(a) the interviewer stating the date and time at which the interview starts; and
(b) each person present identifying himself or herself; and
[(c) subject to any contrary direction by a Judge, in the case of a witness who is of or over the age of 12 years, that person making a promise to tell the truth (in any form, provided the overall effect is a promise to tell the truth); and]
(d) in the case of a [witness] who is under the age of 12 years,
(i) the interviewer informing the [witness] of the importance of telling the truth and not telling lies; and
(ii) subject to any contrary direction by a Judge, the [witness] making a promise to tell the truth (in any form, provided the overall effect is a promise to tell the truth); and
[(e) any interpreter present promising to accurately and completely translate the words of the witness; and]
(f) the entire interview; and
[(g) an accurate means for measuring and recording time in hours, minutes, and seconds; and]
(h) the interviewer stating the time at which the interview finishes; and
(i) if any of regulations 9 to 12 apply, the matters required by those regulations.
Evidence Regulations 2007. Reg 17. How master copy identified and kept
17 How master copy identified and kept
(1) A master copy must be—
(a) sealed with a certificate in the form set out in the Schedule; and
(b) placed in safe custody with the police.
(2) The police must keep a record of—
(a) the date on which the master copy was received into safe custody; and
(b) the particulars of—
(i) who has dealt with the master copy from that date; and
(ii) the reasons for dealing with it.
Evidence Regulations 2007. Reg 31. Custody of Lawyers Copy.
31 Custody of lawyer’s copy
(1) A lawyer who has a lawyer’s copy supplied to him or her under [regulation 30] must place it in safe custody.
(2) A lawyer who has a lawyer’s copy must return it to the police as soon as practicable after the criminal proceeding to which it relates is finally determined or discontinued.
(3) Nothing in subclause (2) prevents a lawyer from returning a lawyer’s copy to the police at any earlier time.
Evidence Act 2006. Section 103. Directions about alternative ways of giving evidence
103 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.
[(5) This section is subject to sections 107 to 107B, which apply to child witnesses in criminal proceedings.]
Evidence Act 2006. Section 104.Chambers hearing before directions for alternative ways of giving evidence
104 Chambers hearing before directions for alternative ways of giving evidence
If an application for directions is made under section 103, before giving any directions about the way in which a witness is to give evidence in chief and be cross-examined, the Judge—
(a) must give each party an opportunity to be heard in chambers; and
(b) may call for and receive a report, from any person considered by the Judge to be qualified to advise, on the effect on the witness of giving evidence in the ordinary way or any alternative way
Evidence Act 2006. Section 105. Alternative ways of giving evidence
105 Alternative ways of giving 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
Evidence Act 2006. Section 107. Alternative ways of giving evidence by child witnesses in criminal proceedings
107 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.]
Evidence Act 2006. Section 28. Prosecutor to give transcript to defence [following not guilty plea]
28 Prosecutor to give transcript to defence [following not guilty plea]
(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendant’s lawyer as soon as practicable after the defendant has pleaded not guilty.]
(2) The typed transcript is to be prepared by the police.
(3) The Court may adjourn [a hearing] to allow further time for the defendant to consider the transcript if satisfied that subclause (1) has not been complied with.
