exclusive rules of evidence 2 Flashcards
Propensity Evidence Legislation When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
S43 Evidence Act 2006 (3) In relation to acts, omissions, events or circumstances that are the subject of the propensity evidence: - The frequency they have occurred - The connection in time between them and those which constitute the offence - The extent of the similarity between them and those which constitute the offence - The extent to which them and those which constitute the offence are unusual - The number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence - Whether those allegations are the result of collusion or suggestibility
Requirements for admission of propensity under S43
- Constitue propensity evidence (S40 definition) - Comply with S43(1) - 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
Hearsay Legislation General admissibility rule (1) A hearsay statement is admissible in any proceeding if—
S18 Evidence Act 2006 (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.
Lack of reliability of hearsay evidence Rationale behind the rule against hearsay and reason for the rule
• Cross-examine - Where the maker of a statement is not called as a witness, there is no opportunity to Cross-examine them regarding its contents, the circumstances in which it was made, and so on. • Demeanour - Addresses the concern that juries cannot evaluate evidence properly without being able to see the Demeanour of the person who made the statement in question. • Mistakes - There is a danger that witnesses will make Mistakes about the meaning or content of statements made by other people. Of note The reason for the rule’s existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.
“circumstances relating to the statement provide reasonable assurance that the statement is reliable” Legislation Definition of Circumstances
S16(1) Evidence Act 2006 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
“the maker of the statement is unavailable as a witness” Legislation When a person is unavailable as a witness
S16(2) Evidence Act 2006 For the purposes of this subpart, 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.
Admissibility of hearsay statements contained in business records Legislation A hearsay statement contained in a business record is admissible if—
S19 Evidence Act 2006 (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 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.
Business Record Definition Means a document that is: - made to comply….. - made from information…..
• 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.
Opinion Rule Legislation
S23 Evidence Act 2006 A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.
Rationale behind the rule against opinion evidence Justifications for the rule:
• Bare - Where a witness offers a Bare opinion it holds little probative weight • Confuse - There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence. The opinion evidence could Confuse the tribunal of fact and prolong proceedings. • Based - A witness’s evidence of opinion may be Based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence).
