Exclusive Rules of Evidence Flashcards
Section 37
Evidence Act 2006
Veracity
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) In a criminal proceeding, evidence about a defendants veracity must also comply with section 38 or, as the case requires, section 39.
(3) In deciding, (in relation to Subsection (1) whether the evidence is substantially helpful), the Judge may consider. . . .
a) lack of veracity in the part of the person when under a legal obligation to tell the truth (in an earlier proceeding or a signed declaration)
b) that the person has been convicted of 1 or more offences that indicate propensity for dishonesty or lack of veracity
c) any previous inconsistent statements made by the person
d) bias on the part of the person
e) a motive on part of the person to be untruthful
(4) A party who calls a witness-
a) may not offer evidence to challenge the 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 purpose of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding
Substantial Helpfulness is not a sufficient test in two instances. . .
- where the prosecution wish to offer veracity evidence about the Defendant (section 38)
- where the defendant offers veracity evidence about a co-defendant (section 39)
Section 38
Evidence Act 2006
Evidence of defendant’s veracity
38 Evidence of defendants 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 offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue: and
b) the Judge permits the prosecution to do so.
(3) In determining whether to give permission under (2b) the Judge may take into account any of the following matters:
a) the extent to which the defendant’s veracity or 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
Section 40
Evidence Act
Propensity Rule
40 Propensity Rule
(1) In this section and 41 to 43 Propensity evidence
a) means evidence that tends to show a persons 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 that is-
i) 1 of the elements of the offence for which the person is being tried; or
ii) the cause of the action in the proceeding in question
(2) A party may offer propensity 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
Propensity evidence includes
Propensity as to action
Propensity as to state of mind
Propensity evidence does not include
- Evidence of an act or omission that is one of the elements of the offence for which the person is being tried
- evidence that is solely or mainly veracity
Section 41
Evidence Act 2006
Propensity about defendants
41 Propensity Evidence about Defendants
(1) A defendant in a criminal proceeding may offer propensity evidence about him or herself
(2) If a defendant offers propensity evidence about him or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about the defendant
(3) section 43 does not apply to propensity evidence offered by the prosecution under subsection 2
Section 43
Evidence Act 2006
Propensity evidence offered by prosecution about defendants
43 Propensity Evidence Offered by Prosecution about Defendants
(1) the prosecution may offer propensity evidence about the defendant in a criminal proceeding only if 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
(2) When assessing the probative value of propensity evidence the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of the propensity evidence the judge may consider among other matters the following:
a) the frequency with which the acts omissions events or circumstances which are the subject of the evidence have occurred
b) the connection in time between the ….. subject of evidence and the ….. which constitutes the offence for which the defendant is being tried
c) the extent of the similarity between the … evidence and the … constitutes the offence ..
d) the number of persons making the allegations against the defendant that are the same or similar to which they are being tried
e) whether the allegations described in d may be the result of collusion or suggestibility
f) the extent to which the … evidence and the … being tried are unusual
(4) When assessing the prejudicial effect of evidence on the defendant the Judge must consider
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 the evidence of other acts or omissions
Section 17
Evidence Act 2007
Hearsay Rule
17 Hearsay Rule
(1) 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
Section 18
Evidence Act 2006
General admissibility of hearsay
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
Section 16(1) Circumstances
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
Section 16(2) Unavailable witness
For the purposes of this subpart a person is unavailable as a witness in a proceeding if the person
a) is dead
b) is outside NZ and it is not reasonably practicable for him or her to be a witness
c) is unfit to be a witness because of age or physical or mental condition
d) cannot with reasonable diligence be identified or found
e) is not compellable to give evidence
Section 22
Evidence Act 2006
Notice of hearsay in criminal proceedings
22 Notice of hearsay in criminal proceedings
(1) comply with subsections 2-4, or every other party waived them or Judge does
(2) Must provide every other party with written notice stating
- intention to offer hearsay
- name of statement maker
- if statement was made orally and the contents
- which section is relied on for the inclusion (18 or 19 etc)
(3) if hearsay made in writing a copy must be provided with the notice
(4) must be in sufficient time prior to proceeding for parties to have time to respond
(5) Judge may dispense requirement
- if no party is substantially prejudiced by it
- compliance was not reasonably practicable
- interest of justice so requires
Opinion
Section 23, 24 and 25
23 Opinion Rule
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.
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.
25 Admissibility of expert opinion evidence
Section 25
Evidence Act 2006
Admissibility of Expert Opinion Evidence
25 Admissibility of Expert Opinion Evidence
(1) an opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
(2) An opinion by an expert is not inadmissible simply because it is about -
a) an ultimate issue to be determined in a proceeding or
b) a matter of common knowledge
(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up their expertise, 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.
(4) 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 -
a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
b) neither the hearsay or previous consistent statement rules applies to evidence of the statement made by the person
