Evidence Flashcards
Evidence of sexual experience of complainants in sexual cases
Section 44 Evidence Act 2006
(1) In a sexual case, no evidence can be given and no questions put to witness, directly or indirectly, relating to sexual experience of the complainant other the the defendant, except with permission of the judge.
(2) In a sexual case, no evidence can be given and no questions put to witness, directly or indirectly, relating to the reputation of the complainant in sexual matters.
(3) In an application for permission under sub(1), the judge must not grant permission unless satisfied that the evidence/question has direct relevance to the proceeding and to the sentencing, that it would be contrary to the interest of justice to exclude it.
(4) The permission of judge is not required to rebut or contradict evidence given under sub(1).
(5) In a sexual case where defendant is charged party to and cannot be convicted unless it is shown another person committed the sexual offence, sub(1) does not apply.
(6) This section does not authorise evidence or questions that could not be given or put apart from this section.
Section 40(3) Evidence Act 2006
Sec. 44(1) is subject to propensity rule in Sec. 40(3). Evidence of the complainant’s propensity to act in a certain way with the defendant, including sexually, can be offered as evidence but only if the judge grants permission.
Privacy as to witness’ precise address
Section 87 Evidence Act 2006
(1) In any proceeding, the precise particulars of a witness’ address (street number etc) may not, without permission of the judge, be -
(a) subject to any question or evidence to witness
(b) included in statement or remark made by witness, lawyer, officer of court or any other person.
(2) Judge must not grant permission under sub(1) unless satisfied that the evidence/question/statement or remark has direct relevance to the proceeding, that it would be contrary to the interest of justice to exclude it.
(3) An application for permission under sub(1) before or after commencement of hearing, where practicable, dealt with in chambers.
(4) Nothing in sub(1) applies in a criminal proceeding if it is necessary to disclose to ensure defendant full informed of charge.
Restrictions on disclosure of complainant’s occupation in sexual cases
Section 88 Evidence Act 2006
(1) In a sexual case, except with the permission of the judge -
(a) subject to any question or evidence to witness concerning the complainant’s occupation
(b) included in statement or remark made by witness, lawyer, officer of court or any other person concerning the complainant’s occupation.
(2) Judge must not grant permission under sub(1) unless satisfied that the evidence/question/statement or remark has direct relevance to the proceeding, that it would be contrary to the interest of justice to exclude it.
(3) An application for permission under sub(1) before or after commencement of hearing, where practicable, dealt with in chambers.
Corroboration
Section 121 Evidence Act 2006
(1) It is not necessary in a criminal proceeding for evidence which prosecution relies on to be corroborated, except offences of -
(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason
(2) Subject to sub(1), in criminal proceeding involving juries, Judge is not required to -
(a) warn jury that it is dangerous to act on uncorroborated evidence or given warning to that effect; or
(b) give direction relating to the absence of corroboration.
Standard Committal Procedure
Allows under special circumstances on application for the court to agree to hear oral evidence. If this is granted then the complainant of sexual offences will have protection surrounding who can be present and what can be asked. This is set out in s97 of the Criminal Procedure Act.
Previous Consistent Statement Rule
Evidence Act 2006
Section 35(1) - previous consistent statements of a witness are inadmissible unless they come within the exceptions in Sec. 35(2) or (3).
Section 35(2) - statements that would have come under the common law rule of recent complaint.
Section 35(3) makes a previous consistent statement admissible to the extent that if it is necessary to respond to a challenge to the witness’ veracity or accuracy, the challenge must be based on:
- a previous inconsistent statement of the witness
- a claim that the witness recently invented evidence
Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence”, therefore likely the previous law will be admissible as evidence of its truth as well as of the fact that it was made.
PCS will really only be admissible as rebuttal evidence.
Advantages of Visually Recording Evidence
- Greater quality and quantity of information obtained
- minimising trauma to witness by simplifying process a d have their interview played as their evidence
- reduce contamination by the interviewer through the process of transposing the interview into a statement
- provide a valuable means for the witness to refresh their memory before judicial proceedings.
Child complainants: Court’s expectation that evidence will be presented by video
Any video/DVD record of a child complainant conducted in accordance to the Evidence Regulation 2007 would normally be admissible in criminal proceedings. (Child
Video/DVD recording of child interview is the best way to meet the child’s needs and interest, and the interest of justice.
It meets the child’s needs because:
- Interview process is focused on the child and allows them to state clearly and freely what has happened
- recorded interview can be used for basis of investigation, prosecution and protection
- it avoids the need to be re-interviewed for different purposes.
Grounds for a witness to give evidence in an alternative way
S103(3) Evidence Act 2006 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.
Ways a witness may give evidence
Section 105 Evidence Act 2006
(i) while in the courtroom but unable to see the defendant or some other specified person; (screens) or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; (CCTV) or
(iii) by a video record made before the hearing of the proceeding. (video recording)
Applying to court for authority to use video/dvd evidence
Section 107 Evidence Act 2006
Once charges are filed and Police wish to present the complainant’s evidence in chief by an alternative method such as a video/DVD record, Police must apply to the court under s107 of the Evidence Act 2007, for the evidence to be admitted by this method. The applications are normally prepared by the Crown Solicitor.
Transcript of video/DVD records
Reg 28 Evidence Regulations 2007
(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 the hearing to allow further time for the defendant to consider the transcript if satisfied that subclause (1) has not been complied with.
