Exclusive Rules of Evidence

Question 1

What do the exclusive rules of evidence deal with

Answer 1

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

Question 2

When may a party offer evidence about veracity

Answer 2

A party may not offer evidence about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity

s37(1)

Question 3

In deciding whether or not evidence on veracity is substantially helpful, what 5 things may the judge consider

Section 37(3)

CLIMB

Answer 3

• LACK of veracity on the part of the person when under a legal obligation to tell the truth
• that the person has been CONVICTED of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
• any previous INCONSISTENT statements made by the person
• BIAS on the part of the person
• a MOTIVE on the part of the person to be untruthful

Question 4

What is the definition of veracity

Answer 4

A disposition to refrain from lying, whether generally or in the proceeding

s37(5)

Question 5

Substantial helpfulness is not a sufficient test in what 2 instances

Answer 5

• where the prosecution wish to offer evidence about a defendants veracity
• where a defendant offers veracity evidence about a co-defendant

Question 6

When can the prosecution offer evidence about a defendants veracity

Answer 6

s38(2)

(a) if the defendant has offered evidence about their veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue

and

(b) if the judge permits the prosecution to do so

Must be relevant and meet the substantial helpfulness test

Question 7

What three things may the judge take into account when deciding whether to give permission for the prosecution to question the defendant about their veracity

Answer 7

s38(3)

(a) extent to which the defendants veracity or veracity of prosecution witness has been put in issue in the defendants evidence
(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence
(c) whether any evidence given by the defendant about veracity was elicited by the prosecution

Question 8

What is the definition of propensity

s40(1)(a)

Answer 8

Evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

s40(1)(a)

Question 9

What does propensity evidence not include

s40(1)(b)

Answer 9

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 (evidence that is solely or mainly about veracity)

Question 10

Propensity evidence about defendants

S41

Answer 10

(1) a defendant in a criminal proceeding may offer propensity evidence about him/herself
(2) if a defendant offers propensity evidence about him/herself the prosecution or another party may, with the permission of the judge, offer propensity evidence about that defendant
(3) section 43 does not apply to propensity evidence offered by the prosecution under subsection 2

Question 11

When assessing the probative value of propensity evidence, what may the Judge consider

s43(3)

FACES N

Answer 11

a) FREQUENCY of the acts, omissions, events, or circumstances (AOEC)
b) CONNECTION in time between the AOEC
c) extent of the SIMILARITY between the AOEC
d) NUMBER of people making similar allegations against the defendant
e) whether the ALLEGATIONS in (d) may be the result of collusion or suggestibility
f) EXTENT to which the AOEC are unusual

After considering the nature of the issue s43(2)

Question 12

When assessing the prejudicial effect of propensity evidence on the defendant, what may the Judge consider

s43(4)

Answer 12

(a) whether the evidence is likely to unfairly predispose the fact finder against the defendant
(b) whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions

Question 13

When will the court allow propensity evidence against a defendant

Answer 13

If the probative value of the evidence outweighs its prejudicial effect on the defendant

Question 14

What is the definition of hearsay

Answer 14

A statement that was made by a person OTHER than a witness and is offered in evidence at the proceedings to PROVE the truth of its contents

Question 15

Definition of statement

Answer 15

• 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 16

When is a hearsay statement admissible

s18

Answer 16

• if there is reasonable assurance that the statement is reliable

and

• the maker of the statement is unavailable as a witness
or
• undue expense or delay would be caused if the maker of the statement were required to be a witness.

• this section is subject to s20 and 22

Question 17

In relation to the reliability of hearsay statements, what are three reasons why hearsay evidence is generally excluded?

Answer 17

• 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 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 (chinese whispers)

Question 18

What is the definition of circumstances in relation to a hearsay statement

s16(1)

CV MAN

Answer 18

Circumstances, in relation to a statement by a person who is not a witness, include:

• NATURE of the statement
• CONTENTS of the statement
• circumstances relating to the MAKING of the statement
• circumstances relating to the VERACITY of the person
• circumstance relating to the ACCURACY of the observation of that person

Question 19

What is meant by “unavailable as a witness” s16(2)

Answer 19

A person is unavailable as a witness in a proceeding if the person is:

• dead
• outside NZ and it’s not reasonably practicable for them to be a witness
• unfit to be a witness because of age, physical, mental condition
• cannot with reasonable diligence be identified or four
• isn’t compellable to give evidence

Question 20

When is a hearsay statement contained in business records admissible

Answer 20

• the person who supplied the information used for the composition of the record is unavailable as a witness
• judge considers no useful purpose would be served requiring the person to be a witness as they cannot reasonably be expected to recollect the matters dealt with in the information supplied
• undue expense or delay would be caused if required to be a witness

Subject to sections 20 and 22

Question 21

What is the definition of business record

Answer 21

A document that is made:

• to comply with a duty or in the course of a business and as record or part of a record of that business
• form 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 they supplied

Question 22

What notice requirements must be given for hearsay evidence to be admitted

Answer 22

Must provide the other party with written notice stating

• intention to offer hearsay statement
• name of the maker of the statement
• if statement was oral the contents of the statement
• statement is reliable
• why the document is a business record
• why person is unavailable
• why undue delay
• provide copy of statement if it was in writing
• requirements complied with in sufficient time before hearing

Question 23

What are the three justifications for the exclusionary of opinion evidence

Answer 23

• where a witness offers a bare opinion it holds little probative WEIGHT
• danger a witness offering opinion evidence will “USURP” the function of the tribunal of fact. Confuse tribunal and prolong proceedings
• may be based on other evidence which if stated expressly would be INADMISSIBLE

Question 24

What two basic criteria must be established for non-expert opinion to be admissible s24

Answer 24

• 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 from something PERSONALLY perceived

Can include evidence about speed, age, identity, weather, emotional state

Question 25

If evidence is opinion evidence, what must it be in order to comply with s25

Answer 25

• be that of an “expert”
• comprise “expert evidence”
• offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding

Question 26

What is the definition of an expert

Answer 26

A person who has specialised knowledge or skill based in training, study or experience

Question 27

List the 8 principles that summarise s25 of expert evidence

Answer 27

• must state qualifications
• facts, matters, assumptions on which opinions are expressed must be stated explicitly
• resons for opinions stated
• literature or other material used/relied on to support opinions must be referred to
• not give opinion evidence outside their area of expertise
• belief that their evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
• overriding duty to assist the court impartially on relevant matters within their area of expertise
• not an advocate for any party

Question 28

What must defence do if they plan on calling on expert evidence

Answer 28

Give notice of expert evidence and they must disclose a brief of evidence or report at least 14 days before the date is fixed for the trial.