Evidence Act 2006 - Chapter 8

Question 1

What is evidence?

Answer 1

Is the term for the whole body of material which a court or tribunal - i.e in criminal cases the Judge or Jury may take into account in reaching their decision

Question 2

How can evidence be presented?

Answer 2

In oral, written or visual form

Question 3

The ‘Rules of Evidence’ fall into 3 main categories?

Answer 3

-HOW evidence may be given
-WHO may give evidence
WHAT type of material may be given in evidence

Question 4

S.6, Evidence Act 2006 “helps secure the just determination of proceedings” through the 6 objectives set out in this section: 1,2,3/6

Answer 4

1) providing for FACTS to be established by the application of LOGICAL RULES
2) providing RULES of evidence that recognise the importance of the RIGHTS AFFIRMED by NZBORA
3) promoting FAIRNESS to parties and witnesses

Question 5

S.6, Evidence Act 2006 “helps secure the just determination of proceedings” through the 6 objectives set out in this section: 4,5,6/6

Answer 5

4) protecting rights of CONFIDENTIALITY and other important PUBLIC INTERESTS
5) avoiding UNJUSTIFIABLE EXPENSE and DELAY
6) enhancing ACCESS to the law of evidence

Question 6

S.7, Fundamental principle that relevant evidence admissible

Answer 6

All relevant evidence is admissible in a proceeding except evidence that is –

(a) Inadmissible under this Act or any other Act; or
(b) Excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tendency to PROVE or DISPROVE anything that is of consequence to the determination of the proceeding.

Question 7

S.8, General exclusion

Answer 7

(1) In any proceeding, the Judge must exclude evidence if its PROBATIVE VALUE is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) NEEDLESSLY PROLONG the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an UNFAIRLY PREJUDICIAL effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

Question 8

S.9, Admission by agreement

Answer 8

(1) The Judge may (a)with the written or oral agreement by all parties admit evidence that is not otherwise admissible
(b) admit evidence offered in any form or way agreed by all parties
(2) in a criminal proceeding a DEFENDANT may admit any FACT ALLEGED against that defendant so as to dispense with proof of the fact
(3) in a criminal proceeding the PROSECUTION may admit any FACT so as to dispense with proof of that fact

Question 9

S.121, Evidence Act 2006, Corroboration

Answer 9

Governs the general approach and exceptions relating to corroboration and in doing so it reflects the previous law. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard. It does 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 10

The VERACITY and PROPENSITY rules

Answer 10

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
“veracity” (disposition to refrain from lying) and
“propensity” (tendency to act in a particular way).

Question 11

What is “burden of proof?”

Answer 11

It is the fundamental principle in criminal law is the presumption of innocence known as the “WOOLMINGTON Principle” This establishes that subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 12

What is “standard of proof?”

Answer 12

Any party bearing a legal burden of proof must discharge this burden to the standard required.
In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. In contrast, any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.

Question 13

What does proof beyond reasonable doubt mean?

Answer 13

Beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, the jury is sure that the defendant is guilty.

Question 14

What then is reasonable doubt?

Answer 14

A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence”.

Question 15

What does Balance of Probabilities mean?

Answer 15

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.

Question 16

S.121(2), Evidence act 2006, Corroboration

Answer 16

Provides that there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction relating to the absence of corroboration. This is subject to the exceptions in s121(1) for perjury and treason, and to s 122 (whereby the judge may warn the jury about unreliable evidence).

Question 17

S.84, Evidence act 2006, Examination of a witnesses

Answer 17

(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be CROSS-EXAMINED by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be RE-EXAMINED
(2) If a witness gives evidence in an AFFIDAVIT or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Question 18

The Course of Evidence - Oaths and Affirmations

Answer 18

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence.
Witnesses under the age of 12:
-must be informed by the Judge of the IMPORTANCE of TELLING the truth and NOT telling lies
-must, after being given that information, make a PROMISE to tell the truth, before giving evidence.

Question 19

Under s.13 Criminal Disclosure Act 2008, when must FULL disclosure by the prosecution be made?

Answer 19

As soon as reasonably practicable after a defendant has

• PLEADED NG
• when the defendant, if he or she is a C or YP, makes a 1st APPEARANCE in a YC

Question 20

S.8, Criminal Disclosure Act 2008, Meaning of relevant?

Answer 20

In this Act, relevant, in relation to INFORMATION or an EXHIBIT, means information or an exhibit, as the case may be, that tends to SUPPORT or REBUT, or has a material bearing on, the case against the defendant.

Question 21

S.79, Evidence Act 2006, Support and assistance in court

Answer 21

(1) A complainant, when giving evidence in a criminal proceeding, is entitled to have 1 person, and may, with the permission of the Judge, have more than 1 person, near him or her to give support.

(1A) A child witness, when giving evidence in a criminal proceeding, is entitled to have 1 person, and may, with the permission of the Judge, have more than 1 person, near him or her to give support.

(2) Any other witness, when giving evidence in any proceeding, may with the permission of the Judge, have 1 or more support persons near him or her to give support.

(2A) Subsections (1), (1A), and (2) apply whether the witness or complainant gives evidence in an alternative way or in the ordinary way.

(3) Despite subsections (1), (1A), and (2), the Judge may, in the interests of justice, direct that support may not be given to a complainant or a child witness or other witness by—
(a) any person; or
(b) a particular person

(4) A complainant or a child witness or other witness who is to have a support person near him or her while giving evidence must, unless the Judge orders otherwise, disclose to all parties as soon as practicable the name of each person who is to provide that support.
(5) The Judge may give directions regulating the conduct of a person providing or receiving support under this section.

Question 22

S.72, Evidence Act 2006: Judges, jurors, and counsel (Eligibility, compellability, privilege and confidentiality),

Answer 22

-A person who is ACTING as a JUDGE in a proceeding is NOT eligible to give evidence in that proceeding. (This reflects the desire to avoid conflicts of interest and aims to ensure fairness and neutrality of the trial).
-Unless the judge gives PERMISSION, a person ACTING as a JUROR or COUNSEL in a proceeding is INELIGIBLE to give evidence in that proceeding. If a juror is given permission to give evidence, he or she would be discharged and the trial would proceed with the
eleven remaining jurors.
-A defendant who acts as his or her OWN COUNSEL will not need judicial permission to testify.

Question 23

S,73 Evidence Act 2006: Compellability of defendants and associated defendants in criminal proceedings

Answer 23

(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—
(a) the associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined.
(3) A proceeding has been determined for the purposes of subsection (2) if—
(a) the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or
(b the associated defendant has been acquitted of the offence; or
(c) the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted;
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.

Question 24

S.18, Evidence Act 2006, General admissibility of hearsay

Answer 24

(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is UNAVAILABLE as a witness; or
(ii) the Judge considers that UNDUE EXPENSE or DELAY would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.

Question 25

S.19 Evidence Act 2006, Admissibility of hearsay statements contained in business records

Answer 25

(1) A hearsay statement contained in a business record is admissible if—
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
(2) This section is subject to sections 20 and 22.

Question 26

CIRCUMSTANCES, in relation to a statement by a person who is not a witness, include;

Answer 26

(a) the NATURE of the statement; and
(b) the CONTENTS of the statement; and
(c) the circumstances that relate to the MAKING of the statement; and
(d) any circumstances that relate to the VERACITY of the person; and
(e) any circumstances that relate to the ACCURACY of the OBSERVATION of the person

Question 27

DUTY means?

Answer 27

Any duty imposed by law or arising under any contract and any duty recognised in carrying on any business practice

Question 28

BUSINESS means?

Answer 28

(a) any business, profession, trade, manufacture, occupation, or calling of any kind
(b) includes the activities of any department of state, local authority, public body, body corporate, organisation or society

Question 29

BUSINESS RECORD means?

Answer 29

• That is made to COMPLY with a duty or
• in the COURSE a of business (and as a record or part of a record of that business); and
• That is made from INFORMATION SUPPLIED DIRECTLY or INDIRECTLY by a person who had, or may reasonably be supposed by the court to have had, personal KNOWLEDGE of the matters dealt with in the information he or she supplied

Question 30

S.22, Evidence Act 2006, Notice of hearsay in criminal proceedings

Answer 30

(1) In a criminal proceeding, no hearsay statement may be offered in evidence unless—
(a) the party proposing to offer the statement has complied with the requirements of subsections (2), (3), and (4); or
(b) every other party has waived those requirements; or
(c) the Judge dispenses with those requirements.
(2) A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating—
(a) the party’s intention to offer the hearsay statement in evidence; and
(b) the name of the maker of the statement, if known (subject to the terms of any witness anonymity order); and
(c) if the hearsay statement was made orally, the contents of the hearsay statement; and
(d) if section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and
(e) if section 19 is relied on, why the document is a business record; and
(f) if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and
(g) if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness; and
(h) if section 19(1)(b) is relied on, why no useful purpose would be served by requiring the person to be a witness; and
(i) if section 22A is relied on, why the 3 matters comprising the required threshold in that section are satisfied.
(3) If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.
(4) The requirements of subsections (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.
(5) The Judge may dispense with the requirements of subsections (2), (3), and (4) if,—
(a) having regard to the nature and contents of the statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.

Question 31

Admissibility of visual identification evidence - Formal procedure for obtaining visual identification evidence

Answer 31

(a) that is OBSERVED AS SOON AS practicable AFTER the alleged offence IS REPORTED to an officer of an enforcement agency; and
(b) in which the SUSPECT is COMPARED TO no fewer than 7 OTHER PERSONS who are SIMILAR in APPEARANCE to the suspect; and
(c) in which no INDICATION is given to the person making the identification as to WHO among the persons in the procedure is the SUSPECT; and
(d) in which the person making the identification is informed that the suspect MAY or MAY NOT be among the persons in the procedure; and
(e) that is the subject of a WRITTEN RECORD of the procedure actually FOLLOWED that is SWORN to be TRUE and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing;

Question 32

Admissibility of visual identification evidence - Good reasons for NOT following a formal procedure:

Answer 32

(a) a REFUSAL of the suspect to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the SINGULAR APPEARANCE of the suspect (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial CHANGE IN APPEARANCE of the suspect after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that IDENTIFICATION WOULD BE AN ISSUE at the trial of the defendant:
(e) if an IDENTIFICATION of a person alleged to have committed an offence has been made to an officer of an enforcement agency SOON AFTER THE OFFENCE occurred and in the course of that officer’s initial investigation:
(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a CHANCE MEETING between the person who made the identification and the person alleged to have committed the offence.

Question 33

S.46, Evidence Act 2006 governs the ADMISSIBILITY OF VOICE IDENTIFICATION evidence

Answer 33

Voice identification evidence offered by the prosecution in a criminal proceeding is INADMISSIBLE unless the prosecution PROVES on the BALANCE OF PROBABILITIES that the circumstances in which the identification was made have produced a RELIABLE identification.