Evidence act (condensed) Flashcards
Evidence definition
The whole body of material which a court or tribunal may take into account in reaching their decision
In what “ways” may evidence be given?
- The normal way
(Orally in court, Affidavit in court or Reading a written statement) - An alternative way
(Outside the court room (AVL), using a screen or a video recording made
before the court date) - Any other way
How can this evidence be presented - in what form?
Orally, Written or in visual form
Admissible evidence definition
Any evidence that can be LEGALLY received by the court
Relevance definition
Evidence is relevant if it has a tendency to prove or disprove anything of consequence
Facts in Issue definition
Facts that need to be proven to prove their case. E.g.
- Facts the prosecution must prove to establish the elements of the offence OR
- That the defendant must prove to form a defence
Exclusionary rules definition
Rules that exclude evidence (usually due to reliability, relevance or that it would be unduly prejudicial to admit it)
Weight of evidence definition
Weight: How much value evidence has
Weight of evidence: How much probative value it has been afforded
What is weight of evidence dependant on?
- the extent to which it is relevant
- Other evidence that supports / contradicts it
- The veracity of the defendant
Offering evidence definition
Evidence MUST be elicited before it is offered. Merely putting a proposition to the defendant is not considered an offer. It becomes so when it is accepted by the defendant
Incriminate definition
Provide information that is reasonably likely to, or would increase the likelihood of, a person being charged with a criminal offence
Proceeding definition
A proceeding in court or any other application to a court connected with a proceeding.
Statement definition
A spoken or written assertion or non-verbal conduct intended by the maker to be an assertion
Witness definition
A person that can give evidence and be available for cross-examination
Veracity definition
A persons disposition to refrain from lying (whether generally or in a proceeding)
Propensity definition
A persons propensity to act in a certain way or have a certain state of mind
Direct evidence definition
This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced
Enforcement agency
Generally refers to the NZP but also includes any other agency that enforces statute (e.g. Customs, IRD, Immigration etc)
What does the Woolmington Principle establish?
That the burden of proof lies with the prosecution
What are the limitations of the Woolmington Principle?
It is subject to a number of limitations.
JUST BECAUSE the burden of proof lies with the prosecution DOES not mean that the defence needs to put forward a case.
What are the exceptions to the Woolmington principle?
The MAIN exception is insanity and statutory exceptions passed in parliament.
The woolmington does NOT apply to strict liability offences.
In some cases, the defence will have (obligations in court) ..
- A practical obligation
- A reversed burden of proof
- Woolmington will not apply
Practical obligation definition
A practical obligation is when the prosecution have proved their case and the defence must point to some evidence that points to some reasonable doubt. However, this is not an evidential burden on the defence.
When does a “practical obligation” on the defence apply?
When the defendant wishes to say that they did not commit the act OR have the necessary intent BUT do not wish to offer a formal defence.
When does the defence have a burden of proof?
If the defendant wishes to put up a defence to a charge then a burden of proof does exist and they MUST prove that defence. It is no longer a practical obligation and it is up to the defendant to offer evidence that supports their defence.
What MUST the prosecution do once a defence is raised?
A defence cannot be left with the judge or jury after it has been made a “live issue” by the defence.
The prosecution must destroy the defence and prove beyond reasonable doubt that it occurred.
R v Wanhalla - Beyond reasonable doubt - what was held?
The jury MUST be told that beyond reasonable doubt is an honest and reasonable uncertainty left in your mind after careful and impartial consideration to all the evidence
R v Peato - Beyond reasonable doubt - what was held?
Peato supported Wanhalla and stated, that while not necessary it promotes consistency.
R v Wanhalla - Presumption of innocence - what was held?
Direction to be given that the starting point is the presumption of innocence and the accused MUST be treated as innocent until proven guilty by the prosectuion.
This means that the defence does not have to offer evidence, offer a defence or establish their innocence.
When is guilt proved?
When you are SURE of their guilty.
It is not enough to think that they will be “likely” guilty.
Reasonable doubt definition
An honest and reasonable uncertainty left in your mind after careful and impartial consideration to all the evidence.
Balance of probabilities definition
It must simply show that it is more likely than not.
Good evidence definition
Establishes what you are trying to prove (proves elements of the charge)
Circumstantial evidence definition
This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn
Can circumstantial evidence prove guilt?
It can be sufficient to prove guilt.
The more circumstantial evidence there is, the more likely, that when viewed as a whole, it can prove guilt.
What is the ‘General rule of evidence’?
ALL facts in issue and facts relevant must be proved by evidence
What are the exceptions to the ‘general rule of evidence’?
Where no evidence has been given because:
* Judicial notice has been given
* The facts have been formally admitted.
What does Section 6 set out?
It sets out the purpose of the act
Section 6 - Sets out the purpose of the act - what is the aim?
The aim of this section is to help secure a just determination of proceedings by:
* Providing for facts
* IMPORTANCE of the NZ BOR Act
* Fairness to parties and witnesses
* Protecting CONFIDENTIALITY and PUBLIC INTERESTS
* Avoiding UNJUSTIFIABLE expense or delay
* Enhancing access to the law of evidence.
What does the ‘aim’ in section 6 affect?
Decisions that are made about evidence you present.
What is judicial notice?
The court declares that they find the fact exists OR will direct the jury to do so.
Judicial notice - Under S128 the judge will..
Formally take notice of facts known / accepted
Take notice of facts by reference to sources when accuracy cannot be questioned
Judicial notice - Under S129 the judge will..
Admit documents for matters of public history, literature, science and art
Judicial notice - What does Section 129 codify?
This codifies common law exceptions to the hearsay rules that allow for admission of public histories, scientific works and maps to be admitted in cases of a public nature.
What does section 9 - Admitting fact - allow?
The defendant or prosecution to admit fact and dispense with proof of that fact
Formally admitted definition?
The counsel of either party can accept evidence as proven so it need not be discussed.
Presumption definition
Where no direct evidence is offered or attainable, disputed facts are often inferred from other facts that are proven or known.
Presumptions can be of law or of fact
What is a presumption of law?
Are inferences by law from fact and they can be conclusive or rebuttable.
Conclusive: A 10 y/o cannot be convicted
Rebuttable: A defendant is innocent until proven guilty
What is a presumption of fact?
Inferences that the mind naturally and logically draws from given facts.
They are rebuttable as they are merely inferences.
What is the standard of proof for admissibility?
There is no standard of proof for admissibility and it wouldn’t be right to require one as there is no standard of proof for circumstantial evidence.
R v Burrows - What did it hold?
A party bringing evidence must show that it is admissible but there is no standard of proof as it is not required for circumstantial evidence. Whether or not evidence is admissible is a question of law.
Who has the decision as to admissibility?
It is a question of law so the courts / judge have the decision of admissibility
What principles do the courts draw from when deciding admissibility?
They have access to certain principles that draw from common law principles.
- Relevance
- Reliability
- Fairness
Section 7 - what is the title?
RELEVANT EVIDENCE IS ADMISSIBLE
What does Section 7 - relevant evidence is admissible - outline?
That all relevant evidence is admissible unless inadmissible under this act or any other act.
What does relevant evidence include?
Direct and circumstantial evidence
What does relevant evidence exclude?
Any extraneous material
When can facts be admitted?
When they are relevant AND admissible.
What happens when a judge decides a piece of evidence is relevant?
The party is entitled to admit it HOWEVER once it is received the degree of probative force / weight must be determined by the judge or jury
Section 8 - What is the title?
GENERAL EXCLUSION PROVISION
What does Section 8 refer to?
Primarily, to the exclusion of evidence that would unfairly prejudice a proceeding OR needlessly prolong it.
What does section 8 - the general exclusion provision - help to do?
Manage the length of the trial and manage the fairness.
What can you exclude evidence due to?
- Lack of reliability
- Fairness
- Public interest
Will unreliable evidence be deemed inadmissible?
Just because it is unreliable does not make it inadmissible.
It may SOMETIMES be excluded OR it will attract a judicial warning because of its unreliability.
When does exclusion of evidence due to unfairness arise?
- If evidence would result in unfair prejudice in the proceeding
- If the way it has been obtained would make any admission unfair
What is the Section 8 test?
This balances the probative value / weight of evidence against the risk that it will:
* Have an unfairly prejudicial effect
* Needlessly prolong the hearing
What if evidence meets the criteria set out under the Section 8 test?
If it meets this criteria and the value outweighs the risk then it CAN be admitted.
What does unfair prejudice refer to?
It refers to the DANGER that the trier of fact will:
* put too much weight on evidence,
* be misled by evidence or
* Use evidence for an illegitimate purpose
What must Section 8 - the general exclusion provision - take into account?
A defendants right to offer an effective defence
R v Gwaze - What was held?
S7 and S8 are rules of law and not matters of discretion.
Section 9 - What was the title?
Admission by agreement
Section 9 - Admission by agreement - Who must agree to this admission?
All parties must agree
Section 9 - Admission by agreement - What does it include?
Inadmissible evidence.
R v Hannigan - what was held?
Even if all parties agree to the admission of evidence, the judge can deny the request and override their decision.
Section 14 - What was the title?
PROVISIONAL ADMISSIBILITY
Section 14 - Provisional admissibility - What does this provide?
If admissibility is in question, the judge can admit it subject to further evidence proving admissibility.
Section 14 - Provisional admissibility - What if the evidence is not provided?
Then the provisionally accepted evidence MUST be excluded.
Section 15 - What is the title?
HEARING IN CHAMBERS
When is a ‘hearing in chambers’ admissible?
IF it is inconsistent with their testimony at another stage of the same proceeding.
Hart v R - What was confirmed?
confirmed that evidence is either admissible for all purposes or not at all
What is the exception to Hart v R - evidence is admissible for all purposes or not at all - ?
- Pre-trial statements
- Prosecution forbidden from relying on dependants evidence
- Fact finder forbidden from using silence as evidence of guilt
What does “character evidence” include?
Veracity and Propensity
When do veracity rules not apply?
When veracity is an element of the offence e.g. perjury
When do propensity rules not apply
In bail hearings or sentencing EXCEPT when covered in S44 in relation to sexual experience of the complainant OR reputation in sexual matters.
Can veracity be used in civil/criminal proceedings?
ONLY if evidence is substantially helpful in assessing their veracity.
This MUST comply with Sections 38 or 39.
What is “Substantially helpful” and what does it cover?
Must do more than simply “Have a tendency to prove or disprove”
This applies to both evidence in chief and cross examination
What may the judge consider when determining if veracity is “substantially helpful”?
- Lack of veracity when obligated to tell the truth
- That the person has been convicted of an offence relating to veracity
- Any previous inconsistent statement
- A bias on the part of the person
- A motive to be untruthful
What can’t a party do? - Veracity evidence?
A party cannot challenge the veracity of a witness they have called unless that witness has been treated as hostile.
HOWEVER they can offer contradictory information.
What do veracity rules focus on?
Solely on truthfulness
What do veracity rules not do?
Attempt to control evidence about the accuracy of a persons statement.
Can witnesses be asked about ‘prior convictions’?
Yes, but it must be substantially helpful.
R v K - What was held?
Someones reputation for veracity is potentially admissible BUT substantial helpfulness will only be met in exceptional cases.
When is substantial helpfulness for veracity NOT sufficient?
- Prosecution offers veracity against the defendant
- Defendant offers evidence about a co-defendant
When offering veracity evidence about a defendant - what are the four things that make it admissible?
- The prosecution MUST show that it is relevant
- The defendant offered the evidence about his/herself
- The evidence MUST meet the substantial helpfulness test
- Prosecution MUST get permission from the judge
What may be considered by the judge when considering veracity evidence about the defendant?
The judge MAY consider:
* The extent to which the defendants or witnesses evidence was put to issue by the defendant
* Time elapsed since the conviction
* Whether any veracity evidence given by the defendant was elicited by the prosecution.
Section 41 - 43 - What does it govern?
Propensity
What does propensity evidence NOT include:
1 of the elements of the offence OR
The cause of the proceeding
Who may offer propensity evidence?
A party may offer propensity evidence in BOTH criminal and civil proceedings about any person
What are the restrictions on propensity evidence?
- A defendant in a criminal hearing may be offered ONLY in accordance with Section 41, 42 or 43
- A complainant in a sexual case in relation to sexual experience may ONLY be offered in accordance with section 44
Is propensity governed by other rules?
Yes, it is governed by Section 8 - if it is not relevant then it is inadmissible.
Section 41 - What is the title?
PROPENSITY ABOUT DEFENDANTS
Section 41 - Propensity about defendants - What does this mean?
A defendant may offer propensity evidence about himself or herself
What can the prosecution do when the defendant offers propensity evidence about himself?
That the prosecution, with permission from the judge, can offer propensity evidence against the defendant.
This prevents the judge or just from forming the wrong impression.
What else can the defendant offer - propensity evidence?
- Disreputable conduct about himself / herself OR
- Neutral propensity - Displaying propensity that is neither good nor bad
When can propensity evidence be offered by the defendant?
Either while testifying or through witnesses
Wi v R - What was held?
If the only “propensity” that the defendant offers is that they have no previous convictions, rebuttal is unlikely to be approved by the judge.
Section 43 - What is the title?
PROPENSITY EVIDENCE OFFERED BY PROSECUTION ABOUT DEFENDANTS
When can the prosecution offer propensity evidence about the defendant?
This can only be offered when the evidence has probative value AND outweighs the risk that the evidence is unfairly prejudicial to the defendant.
What MUST the judge take into consideration when deciding whether prosecution may offer propensity evidence about the defendant?
- The NATURE of the dispute in issue
What MAY the judge take into consideration when deciding whether prosecution may offer propensity evidence about the defendant?
- The FREQUENCY with which acts/omissions/events/circumstances occurred
- The CONNECTION IN TIME between them
- The EXTENT of similarity
- The NUMBER of persons making the allegations
- Whether the allegation could be COLLUSION
- The extent to which the actions are UNUSUAL
What does the judges consideration when deciding whether prosecution may offer propensity evidence reflect?ct
This reflects that there MUST be some relevance to the information being provided.
What MUST be taken into consideration when determining prejudicial effect?
- Whether the evidence will turn the fact finder against the defendant prematurely
- Whether the fact finder will give DISPROPORTIONAL weight to the evidence.
What MUST evidence have to adhere to the prejudicial test?
- It must be propensity evidence
- It must have probative value
- It must have probative value that outweighs the risk of prejudice against the defendant
M v R et Alia - What was held?
The judge MUST
* Identify the relevance of the evidence
* Outline the competing positions AND
* Warn the jury against illegitimate reasoning processes
What is similar fact evidence?
Previous wrong doing by the defendant
When is similar fact evidence admissible?
Admissible ONLY if the probative value OUTWEIGHS the prejudice to the defendant
REI - What was held?
the probative value will depend HEAVILY on the elements and the charges. It MUST be specific enough to allow evaluation.
Do previous wrongdoings have to relate to convictions?
Previous wrongdoings do not have to be submitted by CONVICTIONS, however, the lack of a conviction may have an affect on the probative value of the information.
Hearsay statement definition
A hearsay statement is made by someone other than the witness and given as proof of the truth of its contents.
Is hearsay admissible?
Hearsay is INADMISSIBLE unless it is provided for in this act or any other enactment. The reason for its inadmissibility is that, as a general rule, you cannot test the reliability and accuracy of the statement.
Are out of court statements hearsay ?
Not HEARSAY, as the maker of the statement can be cross-examined in court.
If a hearsay statement is made for some other purpose, Is it hearsay?
it is NOT a hearsay statement and does not need to meet the same admissibility test.
Section 17 - what is the title and what does it state?
GENERAL EXCLUSION OF HEARSAY
A hearsay statement is generally inadmissible unless provided for in this act
A hearsay statement will be admissible if:
- The circumstances relating to it provides a reasonable assurance that it is reliable AND
- The maker of the statement is available as a witness OR
- The judge considers that undue expense / delay would be caused by requiring them as a witness.
What if the maker of a hearsay statement is unable to be called?
Then the inadmissibility of hearsay lies in the lack of reliability of the information.
What does the hearsay rule acknowledge?
It acknowledges that the jury cannot fully evaluate the accuracy of the statement without being able to see the demeanour of the maker AND there is a danger that the witness will misinterpret the information they were given.
