Exclusive Rules of Evidence

Question 1

What are examples of relevant considerations in relation to the circumstances of hearsay evidence?

Answer 1

Whether written or oral
signed
witnessed
First-hand
physical environment
How long after the event the statement refers to
Relationship between maker and witness

Question 2

In order to comply with s25, what must the expert opinion evidence be?

Answer 2

• be that of an expert
• comprise expert evidence
• offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding

Question 3

How does S16(2) define ‘unavailable as a witness?)

Answer 3

a person is unavailable as a witness in a proceeding if the person—
(a)
is dead; or
(b)
is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c)
is unfit to be a witness because of age or physical or mental condition; or
(d)
cannot with reasonable diligence be identified or found; or
(e)
is not compellable to give evidence.

Question 4

What does propensity evidence include?

Answer 4

Propensity as to actions and to state of mind

Question 5

What are the requirements of having hearsay evidence admitted under section 22(1)?

Answer 5

22
Notice of hearsay in criminal proceedings
(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.

Question 6

What sections act as a check on propensity evidence?

Answer 6

Outside Section 40(3) and 40(4) the general principals of relevance (s7) and general exclusion provision (s8) will act as a check on propensity evidence.

Question 7

What can an expert witness base their opinions on?

Answer 7

• Material such as books or articles which add to the general body of information on any given topic.
• Facts that are supplied by others and may be assumed facts.

Question 8

Under S22(3) if the hearsay statement is made in writing what must you do?

Answer 8

(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.

Question 9

What is the focus of S18(1)

Answer 9

the reliability of the hearsay statement itself, not the person who intends to give the hearsay evidence.

Question 10

Under 43 what MAY the judge take into account when assigning the probative value to evidence?

Answer 10

S43(3) (list not exhaustive)
(a)
the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
(b)
the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)
the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)
the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)
whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)
the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

Question 11

How does the test for propensity evidence relating to prior convictions relate to the test for propensity evidence relating to prior history not resulting in a conviction?

Answer 11

They are the same test.

Question 12

Are out of court statements made by a witness hearsay?

Answer 12

No because the person who made the statement is available to be cross examined, even if they don’t give the evidence in chief about the statement.

Question 13

What is the definition of a statement?

Answer 13

-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 14

Under S43 what MUST the judge take into account when assigning the probative value to evidence?

Answer 14

S43(2)

the nature of the issue in dispute

Question 15

Is the definition of circumstances under S16(1) exhaustive?

Answer 15

No it is a non-exhaustive definition

Question 16

What section covers the propensity rule and what is contained in that section?

Answer 16

40
Propensity rule
(1)
In this section and sections 41 to 43, propensity evidence—
(a)
means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b)
does not include evidence of an act or omission that is—
(i)
1 of the elements of the offence for which the person is being tried; or
(ii)
the cause of action in the proceeding in question.
(2)
A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3)
However, propensity evidence about—
(a)
a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b)
a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.
(4)
Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

Question 17

Under S22(4) when must the notice be served saying that the party intends to offer hearsay evidence?

Answer 17

(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.

Question 18

What is the opinion rule?

Answer 18

23
Opinion rule

A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.

Question 19

How does R v Gwaze summarise the definition of circumstances in relation to hearsay evidence?

Answer 19

The inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement, nit also the nature and contents of the statement, and the circumstances relating to its making.

Question 20

What is the rationale behind the rules against hearsay?

Answer 20

lies in the lack of reliability of hearsay evidence

• Where the maker is not called as a witness so there is no opportunity to cross-examine them in relation to the evidence
• where the jury don’t get to see the demeanour of the person giving the evidence making it harder for them to evaluate the evidence
• as there is a danger that the witness giving the evidence will make mistakes about the meaning or contents of the statement.

Question 21

In order to be able to offer evidence of a defendants veracity….

Answer 21

• The prosecution must show the veracity is relevant
• the defendant has offered evidence about their own veracity
• the evidence must meet the substantial helpfulness test
• the prosecution must get permission from the judge to offer the evidence

Question 22

What are the justifications for the opinion rule?

Answer 22

• Where a witness offers a bare opinion it holds little probative value
• There is a danger that the witness offering the evidence may effect the tribunal when assessing the evidence presented
• witnesses opinion may be based on other evidence which if stated expressly, would be inadmissible

Question 23

What is a business record under S19(1)?

Answer 23

A document that is made

• to comply with a duty or in the course of a business, and as a record of that business
• from information supplied directly or indirectly by a person who had, or may reasonably be supposed b the court to have had, personal knowledge of the matters dealt with in the information he or she supplied

This definition also includes a statement made to a Police officer and written down in their notebook or job sheet.

Question 24

What is the general rule of propensity evidence?

Answer 24

A party may offer propensity evidence about any person.

This is however subject to restrictions relating to propensity evidence.

Question 25

What section covers offering evidence about the defendants veracity?

Answer 25

38
Evidence of defendant’s veracity
(1)
A defendant in a criminal proceeding may offer evidence about his or her veracity.
(2)
The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if—
(a)
the defendant has, in court, given oral evidence about his or her veracity or challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and
(b)
the Judge permits the prosecution to do so.
(3)
In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:
(a)
the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:
(b)
the time that has elapsed since any conviction about which the prosecution seeks to give evidence:
(c)
whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 26

What section covers the veracity rules and what is covered in this section?

Answer 26

37
Veracity rules
(1)
A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
(2)
Veracity evidence given about a defendant in a criminal proceeding must comply with section 38 or, as the case requires, section 39.
(3)
In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a)
The person lacks veracity when under a legal oligation to tell the truth
(b)
that the person has been convicted of 1 or more offences that indicate a propensity for a lack of veracity:
(c)
any previous inconsistent statements made by the person:
(d)
bias on the part of the person:
(e)
a motive on the part of the person to be untruthful.
(4)
A party who calls a witness—
(a)
may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b)
may offer evidence as to the facts in issue contrary to the evidence of that witness.
(5)
For the purposes of this Act, veracity means the disposition of a person to refrain from lying.

Question 27

What are the two classes for which character evidence is divided into?

Answer 27

Veracity - a disposition o refrain from lying
and
Propensity - a tendency to act in a particular way

Question 28

What section covers propensity evidence about defendants and what is contained in that section?

Answer 28

41
Propensity evidence about defendants
(1)
A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2)
If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
(3)
Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).

Question 29

Who decides whether an expert witness is properly qualified?

Answer 29

The judge

Question 30

If there is an attack on the prosecution witnesses veracity can the prosecution offer evidence attacking the defendants veracity?

Answer 30

If the attack was in reference to the facts in issue then the prosecution cannot offer evidence of the veracity of the defendant

Question 31

Do veracity and propensity rules apply to bail or sentencing hearings?

Answer 31

No (except when evidence is covered by s44)

Question 32

In relation to a business record, is there a requirement for reasonable assurance that the statement is reliable?

Answer 32

No but any challenge to it’s reliability may affect the weight accorded to the evidence or may lead to exclusion under s8.

Question 33

What is the general admissibility of opinion relating to expert witnesses?

Answer 33

25
Admissibility of expert opinion evidence

• An opinion offered by an expert in their expert evidence is admissible if the fact-finder is likely to obtain substantial help for that opinion in understanding other evidence in the proceeding or ascertaining any fact that is of consequence to the determination of the proceeding.
• An opinion by an expert is not inadmissible simply because it is about an ultimate issue to be determined in a proceeding or a matter of common knowledge.
• If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.
• If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person’s state of mind, then the statement of the person is admissible to establish the facts on which the expert’s opinion is based neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.

Question 34

Under section 18, what are the two criteria for admissibility of hearsay evidence?

Answer 34

Reliability and unavailability (or that undue expense or delay would be caused)

Question 35

How does S16(3) further relate to people being unavailable as a witness?

Answer 35

Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

In short, it is aimed at preventing a party from benefiting from rendering someone unavailable o testify.

Question 36

Definition of circumstances in relation to S16(1) about statements by a person who is not a witness?

Answer 36

circumstances, in relation to a statement by a person who is not a witness, include—
(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 37

What sections cover propensity?

Answer 37

Sections 40-43

Question 38

What happens if someone does not intent to verbally, written or by conduct, make any assertion?

Answer 38

Then it won’t be classed as a statement and will not be hearsay evidence.

Question 39

If a party proposes to admit hearsay evidence what must they do under S22(2)?

Answer 39

(2)
A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating—

• the party’s intention to offer the hearsay statement in evidence; and
• the name of the maker of the statement, if known and
• if the hearsay statement was made orally, the contents of the hearsay statement; and

-If required:
the circumstances relating to the statement that provide reasonable assurance that the statement is reliable
why the document is a business record; and
why the person is unavailable as a witness; and
why undue expense or delay would be caused if the person were required to be a witness; and
why no useful purpose would be served by requiring the person to be a witness; and
why the 3 matters comprising the required threshold in that section are satisfied.

Question 40

What is the name of propensity evidence relating to prior wrong doing that did not result in a conviction?

Answer 40

Prior acquittal evidence

Question 41

What are the two situations where substantial helpfulness is not a sufficient test?

Answer 41

• Where the prosecution wish to offer evidence about a defendants veracity (s38)
• where a defendant offers veracity evidence about a co-defendant (s39)

Question 42

When do the rules not apply to evidence about a persons veracity?

Answer 42

Where the veracity is part of the elements of the offence (eg - perjury)

Question 43

What section relates to the admissibility of hearsay statements contained in business records?

Answer 43

19
Admissibility of hearsay statements contained in business records
(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 44

What is the definition of a hearsay statement?

Answer 44

hearsay statement means a statement that—
(a)
was made by a person other than a witness; and
(b)
is offered in evidence at the proceeding to prove the truth of its contents

Question 45

What is the definition of opinion?

Answer 45

A statement of opinion that tends to prove or disprove a fact

Question 46

What section contains the main exception to the exclusionary rule for hearsay evidence and what is contained in that section?

Answer 46

18
General admissibility of hearsay
(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 47

What does propensity evidence not include?

Answer 47

• Evidence that is one of the elements of the offence for which the person is being tried
• Evidence that is solely or mainly about veracity

Question 48

When can a judge dispense of the requirements under S22 when seeking to have hearsay evidence admitted?

Answer 48

(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 49

Who does the onus rest on to prove that the probative value outweighs the unfair prejudicial risk?

Answer 49

Prosecution

Question 50

In relation to opinion based evidence on facts outside the general body of information what needs to happen for the court to accept the evidence?

Answer 50

It needs to be proved or judicially noticed.

In R V Turner it was shown that before the court can assess the value of opinion it must know the facts upon which it is based. When the expert witness is giving evidence they should be asked to state the facts upon which their opinion is based and should not be left for the other side to cross-examine the expert witness in relation to these facts.

Question 51

What is the test for admissibility under s43?

Answer 51

Whether the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant, not on broader issues regarding prejudicial effect on the proceedings.

Question 52

What are the general exclusion rules for hearsay?

Answer 52

17
Hearsay rule

A hearsay statement is not admissible except—
(a)
as provided by this subpart or by the provisions of any other Act; or
(b)
in cases where—
(i)
this Act provides that this subpart does not apply; and
(ii)
the hearsay statement is relevant and not otherwise inadmissible under this Act.

Question 53

What is required of the defence if they intent to call an expert witness.

Answer 53

Defence must disclose the brief of evidence or report of the expert at least 14 days before the trial date.

Question 54

What is the general admissibility of opinions relating to non-expert witnesses?

Answer 54

24
General admissibility of opinions

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Question 55

What was held in Rei v R in relation to propensity evidence?

Answer 55

It clearly laid out the requirements for the admission of propensity evidence being that the evidence must:

• constitute propensity evidence
• have a probative value in relation to an issue in dispute and other matters that may be relevant (including those described in S43(3))
• have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 56

What conduct is required of an expert witness?

Answer 56

• must state their qualifications when giving evidence
• the facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
• any material used or relied on to support opinions must be referred to by the expert
• Must not give opinion evidence outside their area of expertise
• if an expert believes that their evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
• they have an overriding duty to assist the court impartially on relevant matters within the experts area of expertise
• an expert is not an advocate for any party

Question 57

What do the exclusive rules of evidence deal with?

Answer 57

• veracity
• propensity
• hearsay
• opinion
• identification
• improperly obtained evidence

Question 58

What may the judge take into account when deciding whether to allow the prosecution to question the defendant about their veracity?

Answer 58

• The extent to which the veracity of the defendant or a prosecution witness has been put in issue in the defendants evidence
• time lapse since any conviction that the prosecution wants to give evidence about
• whether veracity evidence given by the defendant was elicited by the prosecution

Question 59

What is the rationale for the notice provisions under S22?

Answer 59

To encourage admissibility decisions concerning hearsay to be made at pre-trial

Question 60

In order to be admissible under s24, the statement of opinion must fulfill two basic criteria, what are they?

Answer 60

• opinion must be the only way in which to effectively communicate the information to the fact finder
• the witness must be stating an opinion from something personally perceived

Question 61

What prior history can be used as propensity evidence?

Answer 61

The defendant does not have to have been convicted of the wrong doing for it to qualify as admissible propensity evidence.

Question 62

What is the definition of an expert

Answer 62

A person who has specialised knowledge or skill based on training, study or experience.

Question 63

What MUST the judge consider when considering the prejudicial effect on the defendant of propensity evidence?

Answer 63

S43(4)
List not exhaustive

(a)
whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)
whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 64

What are examples of opinion evidence of non-expert witnesses

Answer 64

identity
speed
emotional state
weather
age

Question 65

How does veracity evidence differ to that of evidence admitted under s7?

Answer 65

It has a higher threshold in that it must be substantially helpful