Evidence ACT 2006

Question 1

What does Section 40 - 43 of the Evidence Act 2006 control?

Answer 1

It controls Evidence of Propensity
Propensity evidence is evidence that tends to show a person’s Propensity to act in a particular way or have a particular state of mind.

Question 2

General rule of Propensity Evidence is:

Answer 2

• Propensity evidence about a defendant may only be offered in accordance with section 41, 42, or 43: and
• In sexual cases Propensity evidence about a complainants sexual experience may only be offered in accordance with section 44 - 44a

Question 3

What is section 41?

Answer 3

The ability for the defendant to offer evidence of good or neutral Propensity or disreputable conduct ( history of criminal burglary aka was on property to commit a burglary not rape)
The defendant may offer Propensity evidence about themselves through other witnesses even if he or she does not testify

Question 4

What does Section 42 cover?

Answer 4

The defendant may only offer Propensity evidence about a co-defendant if the evidence is RELEVANT TO A DEFENCE RAISED OR PROPOSED TO BE RAISED BY THE DEFENDANT, and the judge permits the defendant to do so

Question 5

What does Section 43 cover?
P/V - U/P

Answer 5

Requires that Propensity evidence offered by the prosecution about a defendant will only be admissible where the evidence” has a probation value in relation to an issue In the proceedings which outweighs the risk that the evidence will have unfairly prejudicial effect”

The prosecution must satisfy the court that the probative value outweighs the risk the evidence may have an unfairly prejudicial effect on the defendant.

Question 6

Section 43: Propensity evidence offered by Prosecution about defendant.

What must the judge consider when assessing probative value?

Answer 6

• frequency of the acts
• how closely connected in time are the Propensity acts to the current alleged offending
• do the acts share similar unusual features.
• similarities between precious acts and those alleged
• number of people making allegations against the defendant
• where allegations may be a result of collusion or suggestibility

Question 7

What is section 44?

Answer 7

Permission granted by judge when questions asked about sexual experience of complainants in sexual cases (this is subject to section 44a process)

Question 8

Under Section 12 When does INITIAL disclosure occur?

Under Section 13 When does FULL disclosure occur?

Answer 8

Adult - No later then 15 working days after commencement of proceedings.

‐—————————————————————
Adult - as soon as reasonably practicable after the defendant pleads not guilty.
CYP - When the CYP makes a first appearance in Youth Court

Question 9

What does Section 45 cover?

Answer 9

Admissibility of VISUAL identification Evidence

Question 10

What does Section 46 cover?

Answer 10

Admissibility of VOICE identification evidence

Question 11

What does Section 28 cover?

Answer 11

Exclusion of Unreliable statements

Question 12

What does Section 30 cover?

Answer 12

Evidence that is improperly obtained

Question 13

What does Section 30(6) cover?

Answer 13

It refers to the Chief Justice Practice Notes on police questioning.
Breaching the Practice Notes is not unlawful but will compromise the fairness of the questions asked and statements obtained.

Question 14

Section 121 (corroboration) relates to what?

Answer 14

Governs the approach and exceptions relating to corroboration. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case when the court is satisfied that it is reliable and accurate and provides proof to the required standard.
It describes not always follow that the court WILL act upon the evidence of one witness: it simply means that it may do so when sufficiently satisfied as to its cogency

Question 15

Section 40. What does this cover?

Answer 15

It is the general rule: a party may offer Propensity evidence about ANY PERSON, this however is subject to some restrictions.
1. Propensity evidence about a defendant may only be offered in accordance with Sections 41, 42, 43: and
2. In sexual cases Propensity evidence about a complainants sexual experience may only be offered in accordance with Section 44 - 44a

Question 16

Alternative ways of giving Evidence:
1. Section 103(3) states applications may be made on any of the following grounds

Answer 16

• AGE/Maturity of witness
• physical, intellectual, psychological, or psychiatric impairment of witness
• trauma suffered by witness
  -witness fear of intimidation
• witness linguistic or cultural background or religious beliefs
• nature of the proceedings
• nature of evidence witness to give
• relationship of the witness to any party in proceedings
• absence or likely absence of witness from NZ
• Any other ground likely to promote the purpose of the Act

Question 17

In relation to section 103(3) alternative ways to give evidence, what does Section 103(4) cover/ what must the judge have regard for?
F.W.S.C.F

Answer 17

• The need to ensure the fairness of the proceedings
• the views of the witness
• need to minimize the stress on the witness
• the need to promote recovery of a complaint from the alleged offence
• any other factor relevant to the just determination of the proceeding.

Question 18

Alternative ways to give evidence:
When a judge is satisfied that the witness should be able to give evidence in an alternative way, he or she may direct that the witness gives evidence (105)….

Answer 18

• Whilst in a courtroom but unable to see the defendant or some other specified person ( example: use of screens and one ways mirror); or
• from an appropriate place outside the courtroom, either in NZ or elsewhere; or
• by a video record made before the hearing of the proceeding.

Question 19

Section 18: General admissibility of hearsay. A hearsay statement is admissible in any proceedings if -

Answer 19

A. The circumstances relating to the statement provided reasonable assurance that the statement is reliable: AND EITHER

1. The maker of the statement is unavailable as a witness; OR
2. The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 20

Relating to Section 18: unavailability or undue expense or delay.
A hearsay statement will only be admissible where the maker of the statement is unavailable or undue expense or delay would be caused by requiring the person to be a witness.
A person is unavailable as a witness when… ( D.O.U.F.C )

Answer 20

• witness is Dead or
• witness is outside NZ and it is not reasonably practicable for him or her to be a witness; or
• unfit to be a witness because of age, physical, or mental condition; or
• cannot with reasonable diligence be identified or found; or
• is not compellable to give evidence

Question 21

Section 18 makes it clear there are two criterias for admissibility of hearsay statements which are …

Answer 21

1. Reliability
2. Unavailability or undue expense or delay

Question 22

Relating to Section 45 admissibility of visual identification evidence what does this cover?

Answer 22

If the officer conducts a formal procedure (photo montage) or there was good reason for not following a formal procedure, that evidence is admissible in a criminal proceedings unless the defendant proves on the balance of probabilities that evidence is unreliable.

Note: if a formal procedure is not followed by officers and there was not good reason for NOT following the formal procedure that evidence is NOT admissible in a criminal proceeding unless the prosecution PROVES behind reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

Photo montage completed with victim or witnesses for obtaining visual identification evidence of the person alleged to have committed an offence

Question 23

Section 4 defines “ voice identification evidence” as…

Answer 23

Evidence that a voice heard first-hand or through a mechanical or electronic transmission or recording, is the voice of the defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Question 24

Section 46 Admissibility of Voice identification evidence states…

Answer 24

Burden of proof on Prosecution under Section 46 is proof of reliability on the balance of Probabilities. Aka they only have to prove that voice identification Evidence is PROBABLY RELIABLE.