Exclusive Rules of Evidence

Question 1

The exclusive rules of evidence deal with:

Answer 1

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

Question 2

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:

Answer 2

• “veracity” - a disposition to refrain from lying, and

* “propensity” – a tendency to act in a particular way.

Question 3

For the purposes of this Act, veracity means

Answer 3

the disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 4

What is the propensity rule - Section 40 evidence act

Answer 4

(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

Question 5

Propensity evidence includes

Answer 5

propensity as to actions

• propensity as to state of mind

Question 6

When may the prosecution offer propensity evidence

Answer 6

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

Question 7

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

Answer 7

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 8

When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—

Answer 8

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 9

Under the Act, a hearsay statement is defined as (s4):

Answer 9

“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 10

“Statement” means (s4):

Answer 10

• 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 11

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

Answer 11

(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 12

The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, what are some of the concerns for not permitting hearsay statement:

Answer 12

• there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made,
• cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
• there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people.

Question 13

Section 16(1) Evidence Act 2006 defines “circumstances”:
circumstances, in relation to a statement by a person who is not a witness, include—

Answer 13

(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 14

Defines “expert”

Answer 14

“a person who has specialised knowledge or skill based on training, study or experience

Question 15

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:

Answer 15

• understanding other evidence, or

* in ascertaining any fact that is of consequence in the determination of the proceeding

Question 16

The exclusive rules of evidence deal with:

Answer 16

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

Question 17

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:

Answer 17

− “veracity” – a disposition to refrain from lying, and

− “propensity” – a tendency to act in a particular way

Question 18

The two criteria for admissibility of hearsay are:

Answer 18

reliability; and unavailability or that “undue expense or delay would be caused”.

Question 19

What is the propensity rule of evidence?

Answer 19

Propensity evidence 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 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, or
− the cause of action in the proceeding in question

Question 20

What is the definition of a hearsay statement in the Evidence Act 2006?

Answer 20

Under the Act, a hearsay statement is defined as (s4):
“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 21

Define an “expert”

Answer 21

“a person who has specialised knowledge or skill, based on training, study or experience”.

Question 22

What are the exceptions to the opinion rule. When would an opinion statement be admissable

Answer 22

Non-expert opinion evidence: 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
Expert evidence: If the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining an fact that is of consequence to the determination of the proceeding

Question 23

Define opinion

Answer 23

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

Question 24

The prosecution in a criminal proceeding (may) offer evidence about a defendant veracity only if

Answer 24

the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness and
the judge permits the prosecution to do so