Evidence Act 2006

Question 1

What is a statement

Answer 1

A spoken or written assertion by a person of any matter or

Non verbal conduct of a person that is intended by that person as an assertion of any matter

Question 2

Section 27 - defendants statement offered by a prosecution - key points

Answer 2

1) evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding

Question 3

Section 28 - exclusion of unreliable statements - subsection 1ab

Answer 3

1) this section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if:

The defendant against whom the statement is offered raises on the basis of an evidential foundation, the issue of the grounds for raising the issue

Or

The judge raises the issue of reliability of the statement and informs the prosecution of the grounds for raising the issue

Question 4

Section 28 - exclusion of unreliable statements - subsection 2

Answer 4

The judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability

Question 5

What is a hearsay statement

Answer 5

A statement that was made by a person other than the witness and is offered in evidence at the proceeding to prove the truth of its contents

Question 6

Section 28 - exclusion of unreliable statements - subsection 3

Answer 6

However subsection 2 does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental or psychological condition of the defendant at the time the statement was made it as Evidence of whether the statement was made

Question 7

Section 28 - exclusion of unreliable statements - subsection 4abcd

Answer 7

Without limiting the matters that a judge may take into account for the purpose of applying subsection two, the judge must in each case take into account any of the following matters that are relevant to the case:

A) any pertinent physical mental or psychological condition of the defendant when the statement was made

B) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject

C) the nature of any questions put to the defendant and the manner and circumstances in which they were put

D) the nature of any threat, promise or representation made to the defendant or any other person

Question 8

Section 29 exclusion of statements influenced by oppression - subsection 1ab

Answer 8

This section apples to a criminal proceeding in which the prosecution offers or proses to offer a statement of a defendant if

A) the defendant against whom the statement is offered raises on the basis of evidential foundation, the issue of whether the statement was influenced by oppression and informs the judge and the prosecution of the grounds for raising the issue

Or

B) the judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue

Question 9

Section 29 exclusion of statements influenced by oppression - subsection 2

Answer 9

The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression

Question 10

Section 29 exclusion of statements influenced by oppression - subsection 3

Answer 10

For the purpose of applying this section, it is irrelevant whether or not the statement is true

Question 11

Section 29 exclusion of statements influenced by oppression - subsection 4abcd

Answer 11

Without limiting the matters that a judge may take into account for the purpose of applying subsection two, the judge must in each case, take into account any of the following matters that are relevant to the case:

A) any pertinent physical mental or psychological condition of the defendant when the statement was made

B) any pertinent characteristics of the defendant including any mental, intellectual or physical disability to which the defendant is subject

C) the nature of any questions put to the defendant and the manner and circumstances In which they were put

D) the nature of any threat, promise, or representation made to the defendant or any other person

Question 12

Section 29 exclusion of statements influenced by oppression - subsection 5ab

Answer 12

Oppressive, violent, inhuman, or degrading conduct towards , or treatment of, the defendant or another person or a threat or conduct of treatment of that kind

Question 13

Section 30 - Improperly obtained evidence - section 1ab

Answer 13

This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if:

A) The defendant against whom the evidence is offered raises in the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue

B) the judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue

Question 14

Section 30 - Improperly obtained evidence - section 2ab

Answer 14

The judge must

A) find, on the balance of probabilities, whether or not the evidence was improperly obtained and

B) if the judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice

Question 15

Section 30 - Improperly obtained evidence - section 3abcdefgh

Answer 15

For the purpose of subsection two, the court may, among any other matters, have regard to the following:

A) the importance of any right breached, and the seriousness of the intrusion on it

B) the nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith

C) the nature and quality of the improperly obtained evidence

D) the seriousness of the offence with which the defendant is charged

E) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but we’re not used

F) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant

G) whether the impropriety was necessary to avoid apprehended physical danger to the police or others

H) whether there was any urgency in obtaining the improperly obtained evidence

Question 16

Section 30 - Improperly obtained evidence - secion 4

Answer 16

The judge must exclude any improperly obtained evidence if, in accordance with the subsection 2, the judge determined that its exclusion is proportionate to the impropriety

Question 17

Section 30 - Improperly obtained evidence - section 5abx

Answer 17

For the purpose of this section, evidence is improperly obtained if it is obtained:

A) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the. NZBORA applies:

B) in consequence of a statement made by a defendant that is or Would be inadmissible if it were offered in evidence by the prosecution

C) unfairly

Question 18

Section 30 - Improperly obtained evidence - section 6

Answer 18

Without limiting subsection 5c, in deciding whether a statement obtained by a Constable has been obtained unfairly, for the purposes of that provision, the judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice

Question 19

Section 103 - directions about alternative ways of giving evidence - subsection 1

Answer 19

In any proceeding the judge may direct that a witness is to give evidence in chief and be cross examined the ordinary Way or in an alternative way as provided in section 105

Question 20

Section 103 - directions about alternative ways of giving evidence - subsection 3abcdefghij

Answer 20

A direction under subsection 1 may be made on the grounds of:

A) age and 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 insinuation
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

Question 21

Section 103 - directions about alternative ways of giving evidence - subsection 4abc

Answer 21

In giving directions under subsection 1, the judge must have regard to

A) the need to ensure the fairness of the proceeding and in a criminal proceeding that there is a fair trial and

B) and the views of the witness and the need to minimise the stress on the witness and 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

Question 22

Section 105 - alternative ways of giving evidence - subsection 1abcd

Answer 22

A judge may direct that the evidence of a witness is to be given in an alternative way so that

A) the witness gives evidence while in the courtroom but unable to see the defendant or some other specified person 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

B) any appropriate practical and technical means may be used to enable the judge, jury, lawyers to see and hear the witness giving evidence

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

Question 23

Section 103 - directions about alternative ways of giving evidence - subsection 2

Answer 23

If a video record of the witnesses 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 is to be conducted

Question 24

Section 103 - directions about alternative ways of giving evidence - subsection 3

Answer 24

The judge may admit evidence that is substantially in accordance with the terms of a direction despite a failure to observe strictly all of those terms