Exclusive Rules Of Evidence II

Question 1

What us the rationale of the rule against hearsay?

The lack of reliability of hearsay evidence
4 points

Answer 1

1. If the maker is not called as a witness there is no opportunity to cross-examine
2. Juries cannot evaluate evidence properly without being able to see the demeanor of the person
3. There is danger Witnesses will make mistakes about the meaning or content of statements made by other people
4. Undeserved weight may be attributed to evidence which cannot be tested

Question 2

Section 16(1) Evidence Act 2006 defines “circumstances”

Answer 2

• The nature of the statements
• the contents of the statement
• circumstances of making the statement
• circumstances of the veracity of the person
• circumstances of the accuracy of the observation of the person

Question 3

Section 16(2)

Unavailable as a witness if the person

Answer 3

(a) is dead
(b) is outside New Zealand and not practical to be a witness
(c) unfit because of age or physical or mental condition
(d) cannot be identified or found
(e) is not compellable

Question 4

Sec 23 - The general exclusionary rule

Why is opinion evidence generally excluded?

Answer 4

1. Where a witness offers a bare opinion, it holds little probative weight
2. There is a danger opinion evidence could confuse the tribunal of fact and prolong proceedings
3. Opinion evidence maybe based on other evidence which would be inadmissible

Question 5

In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:

Answer 5

Opinion must be the only way to effectively communicate the information

The opinion must be from something personally perceived by the witness

Question 6

Section 25

Expert opinion evidence:

May consist of ?

To comply with section 25 must ?

Answer 6

May consist of fact, opinion, or mixture of both.

1. be that of an expert
2. comprise expert evidence
3. offer substantial help in understanding other evidence or ascertaining any fact in the proceeding.

Question 7

Define expert

Answer 7

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

Question 8

Opinion evidence from a witness may include

Answer 8

Identity
speed
emotional state
weather
age

Question 9

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 9

1. Understanding other evidence, or
2. In ascertaining any fact that is of consequence in the determination of the proceeding.

OF NOTE: “Substantial help” replaces the two defining common law rules that related to expert opinion evidence and are abolished in s25(2): the common knowledge and ultimate issue rules.