Exclusive Rules of evidence

Question 1

What are the 6 Exclusive rules of evidence relate to?

Answer 1

Veracity
Propensity
Hearsay
Opinion
Identification
Improperly obtained evidence

Question 2

What was held in R v Gwaze in relation to rules of admissibility?

Answer 2

court made it clear that rules of admissibility s7, s8 are rules of law and not discretion, although they involve questions of judgment they prescribe standards to be observed

Question 3

Define Veracity and Propensity

Answer 3

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

Question 4

When do Veracity and Propensity Rules not apply?

Answer 4

The Rules do not apply to evidence where the persons veracity is an element of the offence (perjury)

Veracity and propensity rules do not apply to bail or sentencing hearings except for when evidence is covered in s44 where it relates to the sexual experience of the complainant with any person other than the defendant.

Question 5

What are the rules around Veracity?
What section covers it/

Answer 5

S37 evidence act covers rules around veracity

A person may not evidence about a person’s veracity unless the evidence is substantially helpful in assessing that persons veracity
In criminal, evidence about a defendant’s veracity must comply with s38 or s 39

In deciding whether this evidence is helpful the judge may consider whether the evidence tends to show 1 or more of the following
Lack of veracity on part of the person when under a legal obligation to tell the truth
That the person has been convicted of a offence that indicate a propensity for dishonesty or lack of veracity
Any previous inconsistent statements
Bias on the part of the person
Motive for the person to be untruthful

A party who calls a witness
May not offer evidence to challenge that witnesses veracity unless the judge determines that witness to be hostile
May offer evidence as to the facts in issues contrary to the evidence of that witness.

Question 6

What is substantial helpfulness in relation to veracity?

Answer 6

In order to be admissible veracity evidence must be substantially helpful in assessing the veracity of a person

This is a higher threshold than relevance

Must be substantially helpful.

Question 7

Can a defendant offer evidence of his own veracity?

Answer 7

S38
The defendant may offer evidence of his own veracity

The prosecution may offer evidence about a defendant’s veracity if:
The defendant has offered evidence about his veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue

The judge permits the pros to do so.
Judge may take into account the following to allow the pros to do so
Extent to which the defendants veracity or voracity of a witness has been put in issue by the defendants 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 8

When can a prosecution offer evidence of the defendants veracity?

Answer 8

Prosecution must show that the veracity is relevant

Defendant has offered evidence about his veracity or challenge the veracity of a prosecution witness

The proposed evidence meets the substantial helpfulness test

Permission is given from the judge to offer it.

Question 9

What will a judge consider In deciding whether to give permission to question the defendant about his veracity

Answer 9

-Extent to which the defendants veracity or veracity of a witness has been put in issue by the defendants 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 10

What does propensity evidence include?

Answer 10

Propensity as to actions
Propensity as to state of mind (lack of inhibition, love of violence)

Question 11

What does propensity evidence not include?

Answer 11

Evidence of an act or omission that is one of the elements of the offence
Evidence that is solely or mainly about veracity

Question 12

What is the general rule about propensity evidence?

Answer 12

A party may offer propensity evidence about any person, however this is subject to some restrictions about for defendants and complainants in sexual matters

Question 13

What section relates to propensity about defendants and what does it relate to

Answer 13

A defendant may offer propensity about himself

If a defendant offers propensity about himself, the prosecution or another party may with the permission of the judge offer propensity about the defendant.

S43 does not apply to evidence under 2)

Question 14

Why would a defendant offer propensity about himself?

Answer 14

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 the defendants to offer

Evidence of disreputable conduct about him or himself

Neutral propensity (e.g. evidence the defendant attends a class every Tuesday as an alibi.)

Question 15

When may the prosecution offer propensity evidence?

Answer 15

S43

The prosecution may offer propensity evidence about a defendant in trial if the evidence has a probative value which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 16

What must the judge consider in relate to a S43 propensity application?

Answer 16

S43
(2)
When assessing this the judge must take into account the nature of the issues in dispute

S43(4)
When assessing prejudicial effect of evidence the judge must consider
Whether the evidence is likely to predispose the fact finder against the defendant

Whether the fact finder will tend to give disproportionate weight in reaching a verdict.

Question 17

What MAY the judge consider in relate to a S43 propensity application?

Answer 17

S43(3)
When assessing probative value judge may consider

Frequency in which the acts have occurred

Connection in time between the acts events or circs

Extent in similarity between the acts
Number of persons making
allegations against the defendant that are the same as or similar to the defendant

Whether the allegations described in d) may be the result of collusion or suggestibility

The extent to which the acts or events which constitute the offence are unusual.

Question 18

What are the requirements for admission of prosecution propensity evidence laid out in Rei v R

Answer 18

Constitute propensity evidence that tends to show a person’s propensity to act in a similar way or have a particular state of mind, being evidence of acts or circumstances which the appellant is alleged to have been involved in.

Have probative value in respect to an issue in disrepute

Have probative value that outweighs the risk that the evidence may be unfairly prejudicial.
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Question 19

What was said in Mahomed v R in relation to admitting propensity evidence?

Answer 19

The rationale for admission of propensity evidence rests largely on the concept of linkage and coincidence, the greater the linkage or coincidence the greater the probative value that evidence has.

The propensity evidence must have specificity about it in order to be probative must be linked to the current offence being tried.

The Crown must identify how and to what extent it risks being unfairly prejudicial.

Question 20

Is a conviction required for admission of propensity evidence?

Answer 20

The defendant does not have to have been convicted as a result of earlier wrongdoing for it to be admissible propensity, such evidence has been termed prior acquittal evidence, the test is the same concerning convictions also.

Question 21

What is hearsay?

Answer 21

Hearsay is defined as under s4

A statement that was made by a person other than a witness and

Is offered in evidence at the proceeding to prove the truth of its contents.

Question 22

What is a statement?

Answer 22

s4
A spoken or written assertion by a person of any matter

Non verbal conduct of a person that is intended by that person as an assertion of any many.

Question 23

Can a hearsay statement be admitted?

Answer 23

S17
In cases where
The act provides this subpart does not apply
The hearsay statement is relevant and not otherwise admissible under this act

S18
A hearsay statement is admissible if
The circumstance relating to the statement provide reasonable assurance that ther statement is reliable and
Either
The maker of the statement is unavailable as a witness
The judge considers that undue expense or delay would be caused if the maker of the statement were required as a witness.

Question 24

What are the two criteria for admitting a hearsay statement?

Answer 24

Reliability
Unavailability or that undue expense or delay would be caused.

Question 25

What is the rationale for reliability in relation to a hearsay statement?

Answer 25

There is no ability to cross examine regarding the contents of the statement

The rule addresses the concern that juries cannot evaluate evidence properly without be able to see the demeanor of the person who made the statement

There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people. Leading to chinese whispers

Rule exists for the danger of attributing undeserved weight to evidence that cannot be tested.

Reliability relates to the statement itself and not the person who made it.

There must be reasonable assurance of reliability means that it is reliable enough for the fact finder to consider it and draw its own conclusions as to weight.

Question 26

What circumstances would be considered in relation to admitting a hearsay statement? S16(1)

Answer 26

Circumstances in relation to a statement by a person who is not a witness includes

Nature of the statement

Contents of the statement

Circumstances that relate to the making of the statement

Circumstances that relate to the veracity of the person

Circumstances that relate to the accuracy and observation of the person.

Question 27

What defines a person who is unavailable as a witness

Answer 27

S16(2) defines unavailability as a witness
A person in unavailable as a witness if
Is dead
Is outside NZ and it is not reasonably practical fort him or her to be a witness
Is unfit to be a witness due to age or physical or mental condition
Cannot with reasonable diligence be identified or found
Is not compellable to give evidence

Question 28

When does S16(2) in relation to a witness not being availble have an exception?

Answer 28

s16(3) - 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.

This relates to where a person would kill someone who makes a statement and is later charged for that killing, the earlier statement would be admissible

Question 29

Are business records admissible?

Answer 29

S19 Admissibility of statements contained in business records
A hearsay statement contained in a business record is admissible if
The person who supplied the information is unavailable
The judge considered no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to time) to recollect the matters dealt with in the information supplied

This definition includes statements made to a police officer and written in his notebook or jobsheet

Question 30

Explain the notice requirement for hearsay

Answer 30

S22
In a proceeding no hearsay to be offered unless the party offering the statement complies with the subsection 2,3,4 or
Every other party waives the requirement
The judge dispenses the requirement

Question 31

What must be provided in the notice for hearsay?

Answer 31

Written notice stating:
- Intent to offer hearsay
- Name of the maker
- Contents of the statement
- Circumstance and reasonable assurance if S18(1)(a)

• If s19 why the document is a business record
• Why the person is unavailable
• Why undue expense or delay would be incurred

Copy of the statement if written
Sufficient time to provide all parties time to respond before the hearing

A Judge may dispense if
- no party would be prejudiced by the failure to comply
- Compliance was not practical
Interest in justice require it.

Question 32

When is a statement of opinion admissible?

Answer 32

A statement of opinion is not admissible in a proceeding except as provided by s24 or s25

Question 33

What is an opinion?

Answer 33

S4
Opinion defined as
A statement of opinion that tends to prove or disprove a fact

Question 34

What are the justifications for excluding opinion evidence?

Answer 34

Where a witness offers a bare opinion which holds little probative weight

There is a danger that a witness offering opinion will usurp the function of the tribunal of fact, to draw necessary inferences from the facts, the opinion evidence could confuse the tribunal or prolong

A witness’s evidence of opinion may be based on other evidence which may be inadmissible.

Question 35

Explain S24 in relation to general admissibility of opinion? and what would this include?

Answer 35

A witness may state an opinion in evidence 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.

May include things such as:
Identity
Speed
Emotional state
Weather
Age

Question 36

In order to be admissible under s24 statement of opinion must fulfill what?

Answer 36

Opinion must be the only way to effectively communicate the information to the finder of fact

The witness must be stating an opinion of something personally perceived.

Question 37

If evidence is opinion evidence to comply with S25 the opinion must:

Answer 37

Be that of an expert

Comprise expert evidence

Offer substantial help to the fact finder in understanding other evidence or ascertaining any fact

Question 38

What defines an expert?

Answer 38

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

The judge must determine if a person is properly qualified to testify as an expert

Question 39

When is expert opinion admissible?

Answer 39

Expert evidence will be admissible if the fact finder is likely to obtain substantial help from the opinion in
Understanding the evidence

Ascertaining any fact that is of consequence in determination of the proceeding

Question 40

What is substantial help?

Answer 40

Seeks to offer a more rational test that assess the reliability and value of the expert opinion on its merits

B v R necessitates consideration of an amalgam of relevance reliability and probative value

Question 41

How must a expert conduct himself when giving evidence? 8 things

Answer 41

Expert must state his or her qualifications

Facts matters and assumptions which opinions are based on

Reasons for opinions must be stated explicitly

Any literature or material relied upon must be referred to

The expert must not give opinion outside of his or her area of expertise

If a expert believes his 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 experts area of expertise

An expert is not an advocate for either party

Question 42

Is there an obligation for defence expert witnesses?

Answer 42

The CDA 2008 introduced an obligation on the defence to give notice of expert evidence in criminal proceedings.

If defence is to call an expert must provide a brief of evidence or report within 14 days of the trial.