Evidence - Sexual offences Flashcards
Section 44, Evidence Act 2006
Sexual Experience of complainants in sexual cases
(1) No evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant (except with Judge permission)
(2) No evidence can be given and no question can be put to a witness relating directly or indirectly to the reputation of the complainant in sexual matters.
(3) In application to the Judge under subsection (1), the Judge must not grant permission unless satisfied that the evidence of question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it
Section 87, Evidence Act 2006
Privacy as to witness’s precise address
The precise particular’s of a witnesses address may not (without the permission of the Judge) be -
(a) the subject of any question to a witness or included in any evidence given, or
(b) included in any statement or remark made by a witness, lawyer, officer of the court or any other person
In application to the Judge under subsection (1), the Judge must not grant permission unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice
Section 88, Evidence Act 2006
Restriction on disclosure of complainant’s occupation
Except with the permission of the Judge -
(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation, and
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation
Judge must not grant permission unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice
Section 121, Evidence Act 2006
Corroboration
The complainant’s evidence does not have to be corroborated.
Except with respect to the offences of perjury, false oaths, false statements or declarations or treason.
Section 35, Evidence Act 2006
Previous consistent statements rule
A previous statement of a witness that is consistent with the witness’s evidence is not admissible UNLESS subsection (2) or (3) applies.
(2) Previous statement of a witness that is consistent with the witness’s evidence is admissible.. if the statement is necessary to respond to a challenge to the witness’s veracity or accuracy (based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness)
(3) .. is admissible if -
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable, and
(b) the statement provides the court with information that the witness is unable to recall
Section 97, Criminal Procedure Act 2011
Standard procedure of giving oral evidence
On application to the court, allows under special circumstances the court to hear oral evidence, giving the complainant protection around who can be present and what can be asked.
Advantages of VRI (ASA)
(1) Greater quality and quantity of information obtained
(2) Minimising trauma to witness by using as evidence in chief
(3) Reducing contamination by the interviewer through obtaining of statement
(4) Providing valuable means for witness to refresh memory before court
How does a SCWI meet child’s needs
(1) Interview is focused on the child and allows them to state clearly and freely
(2) Interview can be used for the basis of an investigation
(3) Avoids the need to re-interview the child
Section 8, Evidence Regulations 2007
What must be recorded on camera
(1) Date and time of interview commencing
(2) Each person present introducing themselves
(3) A promise to tell the truth
(4) When interviewee is under 12, interviewer must advise the importance of telling the truth and not lies and a promise by the witness to tell the truth
(5) Interviewer promise to accurately and completely translate the words of the witness
(6) The entire interview
(7) An accurate means for minuting the interview
(8) Time of the interview concluding
(9) Any breaks being taken, including the fact break being taken, the reason and the estimated duration of break
Section 17, Evidence Regulations 2007
Master copy DVD
Must be sealed with certificate in the form set and placed in safe custody of Police.
Must keep a record of:
- Time and date of receiving into custody, and
- Any details of persons and reasons for dealing with the master copy following this date
Section 31, Evidence Regulations 2007
Lawyers custody of DVD copy
Lawyer must:
- Place copy in safe custody.
- Return the copy to Police upon the conclusion of the criminal proceedings (or earlier)
Section 103, Evidence Act 2006
Alternative ways of giving evidence (grounds)
Requires an application to the Judge
Application may be made on grounds of:
- Age / maturity of witness
- Impairment of the witness
- Trauma suffered by witness
- Fear of intimidation
- Cultural background / religious beliefs
- Nature of proceeding or evidence given
- Relationship between witness and any party in proceeding
- Absence / likely absence out of NZ
Section 104, Evidence Act 2006
Chambers hearing before directions for alternative ways of given evidence
Before a decision is made on the application for giving evidence in an alternative way, the Judge must:
- Give each party an opportunity to be heard in chambers, and
- May call for and receive a report (from any person the Judge deems qualified to advise) on the effect of the witness giving evidence in ordinary ways or any alternative way
Section 105, Evidence Act 2006
Alternative ways of giving evidence (methods)
(1) While in the courtroom but unable to see the defendant
(2) From an appropriate place outside of the courtroom, either in NZ or elsewhere
(3) By a video record made before the hearing
Section 107, Evidence Act 2006
Alternative ways of giving evidence (children)
(1) By video record before the hearing
(2) While in the courtroom but unable to see the defendant
(3) From an appropriate place outside of the courtroom, either in NZ or elsewhere
If child’s SCWI is to be used as evidence in chief, the witness is entitled to give other evidence in one or more of the alternative ways.
If child is to be called as a witness, every party must be informed and state the 1 or more alternate ways the child will give evidence. Must be completed before CRH (judge alone) or callover (jury)
