Evidence

Question 1

What is Section 44 of the Evidence Act

Answer 1

Section 44 of the Evidence Act 2006 covers evidence of sexual experience of complainants in sexual cases.

Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant.

However, s44(1) is subject to the propensity rule in s40(3). Evidence of the complainant’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.

Question 2

What is Section 87 of the Evidence Act

Answer 2

Section 87 of the Evidence Act 2006 protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street, but also the name of the town or community the witness lived in.

However, these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 3

What is Section 88 of the Evidence Act

Answer 3

Section 88 (Restriction on disclosure of complainant’s occupation in sexual cases) of the Evidence Act 2006 protects a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.

However, an application can be made to the judge to disclose this information in court.

Question 4

What is Section 121 of the Evidence Act

Answer 4

Section 121 (Corroboration) of the Evidence Act 2006 provides that, in any criminal proceeding, the complainant’s evidence does not have to be corroborated. This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainant’s account.
“Corroborate” is not defined in the Crimes Act 1961. Ordinary dictionary terms means, to strengthen or support with other evidence, to make more certain.

Question 5

What are the advantages of visually recording?

Answer 5

The advantages of visually recording interviews can include:
• 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 judicial proceedings.

Question 6

Alternative ways of giving evidence

Answer 6

Evidence Act 2006
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.