Exclusive Rules of Evidence

Question 1

The exclusive rules of evidence deal with?

Answer 1

The exclusive rules of evidence 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). This was discussed in the previous chapter.

Question 2

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

Answer 2

The Evidence Act 2006 divides what was called “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.

Question 3

37(3) Veracity rules

(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:

Answer 3

37 Veracity rules

(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 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 the part of the person to be untruthful.

Question 4

37(4) Veracity rules

A party who calls a witness?

Answer 4

(4) A party who calls a witness—
(a) may not offer evidence to challenge that 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.

Question 5

In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. This is a higher threshold than relevance under s7?

Answer 5

In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. This is a higher threshold than relevance under s7, in that it has to do more than simply have a tendency to prove or disprove a matter. In deciding whether evidence as to veracity is “substantially helpful”, the judge may consider the matters in s37(3)(a)-(e).

The substantial helpfulness test applies to both veracity evidence in evidence in chief and that elicited through cross-examination.

Question 6

Substantial helpfulness is not a sufficient test in two instances?

Answer 6

Substantial helpfulness is not a sufficient test in two instances:

• 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 7

In order to be able to offer evidence of a defendant’s veracity? s38

Answer 7

In order to be able to offer evidence of a defendant’s veracity:
• the prosecution must show that veracity is relevant – permission for the prosecution to offer evidence about the veracity of a defendant will only be granted if the defendant’s veracity is in issue.

• 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.

Question 8

In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3))?

Answer 8

In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3)):

• 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.

If an attack on the prosecution witness’s veracity was in reference to the facts in issue, the prosecution cannot offer evidence attacking the veracity of the defendant.

Question 9

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence, means?

Answer 9

40 Propensity rule

(1) In this section and sections 41 to 43, 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; 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 10

Propensity evidence includes?

Answer 10

• propensity as to actions

* propensity as to state of mind (eg a lack of inhibition, a love of violence).

Question 11

Propensity evidence does not include?

Answer 11

• 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 12

Propensity evidence about defendants – s41 Evidence Act 2006?

Answer 12

Section 41(1) 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 (something which a defendant may want to do for tactical reasons), 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).
A defendant may offer propensity evidence when testifying, but also through other witnesses, if he or she does not testify.

Question 13

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following? S43(3)

Answer 13

(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 14

When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters? 43(4)

Answer 14

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

(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 15

The Court in Rei v R17 clearly laid out the requirements for the admission of propensity evidence under s43. The evidence must?

Answer 15

The Court in Rei v R17 clearly laid out the requirements for the admission of propensity evidence under s43. The evidence must:
a) constitute “propensity evidence”, that is 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 the appellant is alleged to have been involved;

b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 16

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

Answer 16

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 17

“Statement” means (s4)?

Answer 17

“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.

Question 18

17 Hearsay rule?

Answer 18

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.

Question 19

18 General admissibility of hearsay

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

Answer 19

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 18 makes it clear that there are two criteria for admissibility:
• reliability, and
• unavailability, or that “undue expense or delay would be caused”.
The notice requirement in s22 of the Evidence Act 2006 must also be met before a hearsay statement can be admitted.

Question 20

The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, give examples?

Answer 20

• 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.
• the rule 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.
• there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people. The game of “Chinese Whispers”, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.

Question 21

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

Answer 21

Section 16(1) Evidence Act 2006 defines “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

This is a non-exhaustive definition. It provides the list of matters the court should consider when determining whether the “circumstances relating to the statement provide reasonable assurance that the statement is reliable” (s18).

Question 22

Section 16(2) defines what is meant by “unavailable as a witness”?

Answer 22

Section 16(2) defines what is meant by “unavailable as a witness”:

(2) 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.

Question 23

23 Opinion rule?

Answer 23

23 Opinion rule

A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.

Question 24

The Act defines “opinion” as?

Answer 24

The Act defines “opinion” as “a statement of opinion that tends to prove or disprove a fact” (s4). The distinction between what is fact and what is opinion is sometimes unclear.

Question 25

The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence. To admit such evidence would result in the admission of evidence of doubtful relevance and be a waste of court time. The justifications for the rule include that?

Answer 25

The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence. To admit such evidence would result in the admission of evidence of doubtful relevance and be a waste of court time. 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 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.
• 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).

Question 26

24 General admissibility of opinions?

Answer 26

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.

Question 27

25 Admissibility of expert opinion evidence?

Answer 27

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?

Question 28

If the evidence is opinion evidence, then in order to comply with s25, the opinion must?

Answer 28

If the evidence is opinion evidence, then in order to comply with s25, 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 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?

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.

Question 30

Section 4 of the Act defines an “expert” as?

Answer 30

Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill based on training, study or experience”

Question 31

Expert witnesses should be impartial in their assistance to the court. In R v Hutton27, the Court of Appeal approved principles similar to those for experts in civil cases. These principles summarise much of the discussion of s25 above?

Answer 31

• 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.