Exclusive Rules of Evidence

Question 1

• The exclusive rules of evidence

Answer 1

Deal with:
* veracity
* propensity
* hearsay
* opinion
* identification
* improperly obtained evidence.

In addition to these specific exclusionary rules, there is the general exclusion of probative value versus prejudicial effect on the proceeding (s8).

Question 2

Relationship between the veracity and propensity rules

Answer 2

The Evidence Act divides “character” evidence at common law into two classes of evidence:
- “veracity” – a disposition to refrain from lying, and
- “propensity” – a tendency to act in a particular way.

The veracity and propensity rules do not apply to bail or sentencing hearings, except when the evidence is covered by s44.

The veracity rules focus solely on truthfulness. Section 37(4)(a) clearly signals that a party may not offer evidence to challenge the veracity of their own witness unless the witness is declared hostile.

Question 3

• S37 - Substantial Helpfulness Test

Answer 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) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(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.

In R v K it was suggested that someone’s reputation for veracity is
potentially admissible under s37, but the substantial helpfulness threshold will only be met in exceptional cases:
- where the prosecution wish to offer evidence about a defendant’s veracity (s38), and
- where a defendant offers veracity evidence about a co-defendant (s39).

Question 4

S38 - Evidence of a defendant’s veracity

Answer 4

In order to be able to offer evidence of a defendant’s veracity:
- the prosecution must show that veracity is relevant
- the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence – i.e. must have orchestrated it);
- the proposed evidence must meet the substantial helpfulness test.
- The prosecution must get permission from the judge to offer the evidence.

In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the Judge may take into account:
- 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
- the time that has elapsed since any conviction about which the prosecution seeks to give evidence
- whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 5

• S40 - Propensity

Answer 5

(1) 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;
(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

Question 6

Propensity evidence does not include

Answer 6

• 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 about veracity (which is governed by the veracity rules set out in s37).

Question 7

S41 - Propensity evidence about defendants

Answer 7

(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.

Question 8

• S41(1)

Answer 8

Incorporates the ability to offer evidence of good propensity: the propensity limb of what was termed “good character evidence” at common law. However, it also allows defendants to offer:
- evidence of disreputable conduct about him or herself or
- neutral propensity (eg evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad).

It is important to note that, unlike the previous law, the door is not opened by a defendant’s attack on the propensity of a prosecution witness. Therefore, the only way that the prosecution can offer propensity evidence about a defendant is if he or she offers propensity evidence about himself/herself; or if s43 is satisfied.

Question 9

• S43 - Propensity evidence offered by prosecution about defendants

Answer 9

(1) The prosecution may offer propensity evidence about a 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.

Section 43 allows for admissibility of the defendant’s previous wrongdoing where the probative value versus prejudicial inquiry is satisfied.

Question 10

• S43(3) - Probative value of propensity evidence

Answer 10

(3) When assessing the probative value of 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 acts, omissions, events, or circumstances which 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 which 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 which 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

Requirements for admission

Answer 11

Rei v R laid out the requirements for the admission of propensity evidence. The evidence must:
a) constitute “propensity evidence”
b) have a probative value “in relation to an issue in dispute”
c) have a probative value that outweighs the risk that the evidence
may have an unfairly prejudicial effect on the defendant.

Question 12

• Probative value and prejudicial effect

Answer 12

Unlike s8 and unlike the previous law, section 43(1) focuses only on the risk of a prejudicial effect on the defendant, not on broader issues regarding prejudicial effect on the proceedings.

Question 13

• Mohammed v R

Answer 13

“The rationale for the admission of propensity evidence rests largely…on the concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. In order to amend the assessment the Court must carefully identify how and to what extent the propensity evidence has sufficient particularity to be probative and how and to what extent it risks being unfairly prejudicial.”

The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 14

• Judge to take into account the nature of the issue

Answer 14

The Judge may consider the non-exhaustive list of issues in s43(3). Other matters not listed may be considered, such as the strength of other evidence of the defendant’s guilt. The matters listed reflect the fact that the propensity evidence must have some relevance to the facts in issue over and above merely showing that the defendant has a propensity to do bad things.

Question 15

• Judge to consider certain factors when assessing prejudicial effect

Answer 15

When assessing prejudicial effect on the defendant, the judge must consider the non-exhaustive list of factors in s43(4). If the judge decides that there is a risk that the propensity evidence will have an unfairly prejudicial effect on the defendant, he or she must then weigh that risk against the probative value of the evidence.

Question 16

• S4 - Hearsay statement defined

Answer 16

A hearsay statement is defined as:
“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”

“Statement” means (s4):
- 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.

Hearsay statements are not admissible except where there is provision for admissibility in the Evidence Act 2006 or any other Act; or where there is express provision that the hearsay rules do not apply (section 17 Evidence Act 2006).

Question 17

• “Other than a witness”

Answer 17

The definition of hearsay means that out-of-court statements made by a “witness” are not hearsay. This applies even if the person who made the statement does not give evidence-in-chief on the statement made out of court, because the statement maker is available to be cross-examined.

The ability to cross-examine the maker of the statement means that the primary rationale for the rule against hearsay (the inability to test the credibility and accuracy of is not applicable).

Question 18

Purpose for which evidence is offered

Answer 18

As at common law, the focus of the hearsay rule is on the purpose for which the evidence is offered, rather than just the fact that the statement was made out-of court.

For example, where a doctor states that his or her patient suffered from chest pains, the evidence is not hearsay if offered to illustrate why the doctor concluded that the patient had angina. The purpose of the evidence is not to prove that the patient indeed suffered from chest pains but is rather to show how and why the doctor reached his or her conclusion. By contrast, the evidence will be hearsay if the doctor wishes to testify as to the chest pains in order to say that they were actually suffered, as this would be equivalent to saying that the symptoms were the “truth”.

Question 19

S18 - General Admissibility of Hearsay

Answer 19

(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.

Section 18 makes it clear that there are two criteria for admissibility:
- reliability, and
- unavailability, or that “undue expense or delay would be caused”.

Question 20

Reliability

Answer 20

The rationale of the rule against hearsay lies in the lack of reliability of
hearsay evidence:
- where the maker of a statement is not called as a witness, there is no opportunity to cross-examine
- concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person
- a danger that witnesses will make mistakes about the meaning or content of statements made by other people. The game of “Chinese Whispers”.

The reason for the rule’s existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 21

• S16(1) - Definition of Circumstances

Answer 21

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.

In R v Gwaze said “[The] definition of “circumstances” for the purpose of hearsay evidence makes it clear that 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, but also the nature and contents of the statement, and the circumstances relating to its making.”

Question 22

Unavailability or Undue Expense and Delay

Answer 22

In addition to a requirement of reliability, a hearsay statement will only be admissible where the maker of the statement is unavailable, or undue expense or delay would be caused by requiring the person to be a witness.

Section 16(3) is aimed at preventing a party from benefiting from rendering someone unavailable to testify

Question 23

• S16(2) - Unavailable Witness

Answer 23

(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.

The emphasis in s16(2)(b) is on whether the person cannot be a “witness”. The increasing use of technology will mean that more witnesses, particularly those overseas, will be “available” to give evidence.

Question 24

• S19 - Admissibility of hearsay statements contained in business records

Answer 24

Under s19(1), a business record means a document 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,
- 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.

A business record will be admissible where no useful purpose would be served by requiring the person to be a witness because there can be no reasonable expectation that the person will be able to recollect the matters dealt with in the information supplied for the business record.

Question 25

• S23 - Opinion Rule

Answer 25

The Act defines “opinion” as “a statement of opinion that tends to prove or disprove a fact”.

Section 23 states that opinions are not admissible to prove the truth of what is believed or inferred. The premise of the general exclusionary rule is that a witness’s opinions, beliefs or inferences are not their perceptions, but are conclusions drawn from those perceptions.

The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence. The justifications for the rule include that:
- where a witness offers a bare opinion it holds little probative weight
- there is a danger that a witness offering opinion evidence could confuse the tribunal of fact and prolong proceedings.
- a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible.

Question 26

• S24 - General admissibility of opinions

Answer 26

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.

Opinion evidence from a witness may include topics such as identity, speed, emotional state, weather, age etc.

In order to be admissible, the statement of opinion must fulfil two basic criteria:
- opinion must be the only way in which to effectively communicate the
information to the finder of fact,
- the witness must be stating an opinion (be it conclusion, inference etc)
from something personally perceived.

Question 27

• S25 - Admissibility of Expert Opinion Evidence

Answer 27

Where a matter calls for special skill or expertise, only a witness who is an expert in the matter can give evidence, and the range of opinion evidence is limited to matters where the opinion is needed in order to illuminate the facts in the case.

Expert evidence may consist of fact, opinion, or a mixture. Factual evidence from an expert will be governed only by the general rules in s7 and s8, and any other admissibility rules applicable in the individual case.

If the evidence is opinion evidence, the opinion must:
- be that of an “expert”
- comprise “expert evidence”, and
- offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.

Question 28

• Qualification as an expert

Answer 28

“expert” is a “person who has specialised knowledge or skill based on training, study or experience”. The judge must determine whether the expert witness is properly qualified to testify. The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed “expert” in the field in question.

Question 29

• “Likely to obtain substantial help”

Answer 29

Section 25(1) provides that expert opinion evidence will be admissible if the fact-finder is likely to obtain substantial help from the opinion in:
- understanding other evidence, or
- in ascertaining any fact that is of consequence in the determination of the proceeding.

“Substantial help” are the common knowledge and ultimate issue rules. The common knowledge rule stated that an expert could not give an opinion on matters that were within the common knowledge of the jury. The ultimate issue rule provided that an expert could not give an opinion on the ultimate issue in the case.

The requirement of substantial helpfulness seeks to offer a “more rational test that assesses the reliability and value of the expert opinion on its merits”. The Court in B v R held that it “necessitates consideration of an amalgam of relevance, reliability and probative value”.

Question 30

Evidence based on proven facts

Answer 30

Where current knowledge does not allow an opinion based on proven facts, then the expert should indicate that he or she cannot express a view.
- Where material, such as books and journal articles, contribute to the general body of information on any given topic, an expert witness is allowed to base his or her opinion partly on this information
- An expert opinion may also be based on facts that are supplied by others, such as analyses of body tissues carried out by colleagues, or the research findings of other scientists.

Question 31

Expert evidence about sanity

Answer 31

Section 25(4) provides for the admissibility of a person’s statement about his or her state of mind in order to establish the factual basis for the expert’s opinion on the sanity of that person

Question 32

The conduct of experts

Answer 32

Expert witnesses should be impartial in their assistance to the court. In R v Hutton, the Court of Appeal approved principles:
- an expert must state his or her 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 literature or other material used or relied on to support opinions must be referred to by the expert
- the expert must not give opinion evidence outside his or her area of
expertise
- if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
- an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
- an expert is not an advocate for any party.

Question 33

Notice Requirement

Answer 33

The Criminal Disclosure Act 2008 introduced an obligation on the defence to give notice of expert evidence in criminal proceedings. Section 23 provides that, if the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report at least 14 days before the date fixed for the trial.