Module 8 - Evidence (1) (Feb 2015) Flashcards
What is evidence?
“Evidence” is the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.
Evidence may be in oral, written or visual form.
What are the rules of evidence?
The rules of evidence determine the form in which and the means by which evidence may be presented to the court. They are to be found in both specific statutory provisions and case law. Most of the law can now be found in the Evidence Act 2006.
The rules of evidence fall into three main categories:
- how evidence may be given;
- who may give evidence; and
- what type of material may be given in evidence.
What is some basic terminology for Court? (20 terms)
Admissible Evidence: Evidence is admissible if it is legally able to be received by a court.
Fact-finder: Judge or jury
Relevance: Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (s7(3) Evidence Act 2006).
Facts in Issue: Facts in issue are those which the prosecution must prove in order to establish the elements of the offence; or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.
Exclusionary Rules: Exclusionary rules are rules which exclude relevant evidence.
Proceeding: a proceeding conducted by a court, and any interlocutory or other application to a court connected with a proceeding.
Weight of Evidence: The “weight” of evidence is its value in relation to the facts in issue. This will depend upon a wide range of factors, such as the extent to which, if accepted, it is directly relevant to or conclusive of those facts; the extent to which it is supported or contradicted by other evidence produced; and the veracity of the witness. The “weight” is the degree of probative value that can be accorded to the evidence.
Probative Value: How strongly evidence points to the inference it is said to support, and how important the evidence is to the issues in the trial, will determine the level of probative value that a piece of evidence holds. In this sense, probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case.
Prejudicial: evidence adverse to a party’s case; the drawing of an inference against a party. However, the exclusion in s 8 Evidence Act 2006 relates to unfair prejudice. It refers to the danger of the jury using the evidence for an improper purpose or in support of an impermissible chain of reasoning (see SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [128]). For example, the jury may give more weight to evidence than it deserves, speculate inappropriately about the meaning or significance of evidence, be misled by the evidence, and/or use the evidence for an illegitimate purpose.
“Give evidence”: The “giving of evidence” is included in “offering evidence”. A witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence. The offering of evidence in the 2006 Act includes eliciting evidence by cross-examining a witness called by another party (evidence must be elicited before it is “offered”, merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition: section 96(1) Evidence Act 2006; R v McKenzie [2004] 1 NZLR 181).
In a proceeding, evidence may be given
- in the ordinary way – the ordinary way of giving evidence is either orally in a courtroom in the presence of a Judge (or Judge and jury), parties to the proceeding, counsel, and members of the public allowed by the Judge; or in an affadavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent and the statement is admissible and is the personal statement of the deponent or maker;
- in an alternative way – in the courtroom but unable to see the defendant or other person, outside the courtroom, or by video record made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss 103-106 Evidence Act 2006, which provides for applications and directions regarding alternative ways of giving evidence;
- in any other way provided for by the 2006 Act or any other enactment;
- where evidence is to be used in overseas criminal proceedings, “giving evidence” includes answering any question and producing any document (s195(3) Evidence Act 2006).
Incriminate: To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
Statement: a statement is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.
Witness: a witness is a person who gives evidence and is able to be cross-examined in a proceeding.
Child complainant: a complainant who is a child (under 18 years) when the proceeding commences (when charging document is filed NOT at the beginning of the trial).
Hearsay statement: A hearsay statement is a statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents. This definition of “hearsay statement” means that out-of-court statements made by a “witness” (that is, someone who gives evidence and is able to be cross-examined in a proceeding) are not excluded by the hearsay rule on the basis that the maker is available to be cross-examined. Also, a statement offered for some other purpose than to prove the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement. The hearsay rule is discussed further in Chapter 9.
Veracity: veracity is the disposition of a person to refrain from lying, whether generally or in a proceeding.
Propensity: propensity is a person’s tendency to act in a particular way or have a particular state of mind. Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.
Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife give direct evidence).
Circumstantial evidence: evidence of circumstances that do not directly prove any fact in issue but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime).
Enforcement Agency: an enforcement agency refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment (such as the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department).
What is the purpose of Evidence Law?
Section 6 Evidence Act 2006 sets out the purpose of the Act. It has significance when courts are interpreting the Act; exercising the courts’ inherent powers; and making decisions on the admissibility of evidence when other sections of the 2006 Act or other enactment does not provide a ready answer.
The 2006 Act aims to “help secure the just determination of proceedings” through the six objectives set out in s6:
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and (e) avoiding unjustifiable expense and delay; and (f) enhancing access to the law of evidence.
The Act, and admission of evidence not directly covered by the Act, must be interpreted in a way that promotes the purposes and principles (contained in s6 above, and ss 7 and 8 below). Outside of the Act, common law cases can be used to help decide which evidence might be admitted, but only in so far as they are consistent with the provisions of the Act and the promotion of its purposes and principles (s 12). However, this cannot override explicit exclusionary wording in the Act itself.
What is Section 7, Evidence Act 2006?
Relevance
The fundamental condition for the admissibility of evidence is that it must be relevant. Evidence that is not relevant will not be admissible.
Section 7, Evidence Act 2006 Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is –
(a) Inadmissible under this Act or any other Act; or (b) Excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything
that is of consequence to the determination of the proceeding.
Relevant evidence may include direct evidence and circumstantial evidence (where the evidence does not directly prove anything but may allow inference about such proof). It excludes any extraneous matters that do not relate to the precise issue or issues to be determined by the court. Evidence can be admitted on any basis for which its relevance can be established. See, for example, R v Wyatt 10/10/07, CA311/07; [2007] NZCA 436, para 14.
If the judge decides that a piece of evidence is relevant, then subject to any other legal rules of inadmissibility or exclusion, the party will be entitled to present the evidence in the proceeding. Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.
Once received, the degree of probative force, or “weight”, to be given to the evidence is a question for the trier of fact (Judge alone or jury).
What is Section 8, Evidence Act 2006?
Fairness, and the General Exclusion Under Section 8 Evidence Act 2006 Even though evidence is relevant, it may be excluded if it would result in some unfairness to the party against whom it is admitted. Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:
- evidence may be excluded if it would result in some unfair prejudice in the proceeding.
- evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may lead to its exclusion under the fairness discretion (see further the discussion in Chapter 10 of s 30 of the 2006 Act, which governs improperly obtained evidence).
It is to the first type of unfairness that the general exclusion provision in s8 is directed:
Section 8 - General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or (b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the
Judge must take into account the right of the defendant to offer an effective defence.
Section 8 sets out a general requirement for exclusion of evidence that is otherwise relevant and not excluded or rendered inadmissible by some specific provision of the Act or any other Act. It is intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding. The judge has to conduct a “weighing up” process under s 8(1). However, once he or she decides that s 8(1)(a) or (b) apply, the requirement of general exclusion is mandatory (“must exclude”). The rule in s 8(1) applies even where evidence satisfies the conditions for admissibility in another provision in the Act.
The s 8 test involves balancing the probative value of evidence against the risk that it will have an “unfairly prejudicial effect on the proceeding” (s 8(1)(a)), or “needlessly prolong the proceeding” (s 8(1)(b)). Evidence will be admitted under s 8 if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding; or is strong enough to support a prolonging of the proceeding.
The risk of “unfair prejudice” will typically refer to the danger that a trier of fact will give some piece of evidence more weight than it deserves, be misled by evidence, speculate inappropriately about the meaning or significance of evidence or use evidence for an illegitimate purpose. The s 8 focus allows exclusion of evidence likely to be unfair by distracting the fact-finder from the real issues in the trial.
Under s 43, there is a similar balancing exercise with specific focus on the prejudicial effect on the defendant where the prosecution wish to offer propensity evidence about the defendant (see Chapter 9).
Section 8(1)(b) excludes evidence that will needlessly prolong the proceedings (for example where a defendant wishes to call twenty witnesses to give evidence as to his or her veracity, section 8(1)(b) could be used by the Judge to limit the evidence to fewer witnesses).
The assessment under s 8(1)(a) “must take into account the right of the defendant to offer an effective defence” (s 8(2)). This reflects s 25(e) (the right of criminal defendants to present a defence) and s 25(a) (the right to a fair trial) of the New Zealand Bill of Rights Act 1990. Nothing in s 8(2) requires the admission of evidence where its unfairly prejudicial effect on a proceeding is held by a court to outweigh its probative value in the case. However, in finely balanced cases, s 8(2) may make a difference – either to allow admissibility where the defence wish to offer the evidence, or to find that the evidence is inadmissible where prosecution evidence may risk an illegitimate prejudicial impact on the defence case.
What is Section 9, Evidence Act 2006?
Admission by agreement
Notwithstanding the principles that we have discussed, s 9 of the 2006 Act allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. The judge has to ensure that the trial is fair, and as such retains control of the process and may decline to admit the evidence even if all parties agree to its admission; or may not agree to admit it in the form agreed to by the parties (R v Hannigan [2012] NZCA 133 at [13]). The most obvious example would be where, in the judge’s view, the evidence or the mode of offering it would amount to a breach of s 8. Section 9 also enables both prosecution and defence to admit facts so that they do not need to be proved.
What is the rule around “Limited use of evidence and use for multiple purposes”?
The 2006 Act does not clearly specify whether evidence may be relied upon for multiple purposes. However, in line with s 6(a) (purposes) and s 7 (principle of relevance), the general rule should be that, once admitted, evidence will be available to prove “anything that is of consequence to the determination of the proceeding” (s 7(3)). Admissible evidence may be used in different ways and for different purposes in a proceeding. The Supreme Court has confirmed this approach, stating that “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all” (Hart v R [2010] NZSC 91 at [54]).
This general rule is subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such s 31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case; and s 32, which forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.
There are obviously dangers in admitting evidence for one purpose which is generally regarded as irrelevant, prejudicial or unfair for some other purpose, since the trier of fact may fail to draw a distinction between one purpose and another and thus misuse the evidence. In jury trials at least, courts generally strive to minimise this danger by giving appropriate directions to the jury. To this end, the Act requires judges to warn juries against reliance on some types of evidence for certain purposes, such as s 124 (warning about evidence that the defendant has lied).
What are the rules around Provisional Admissibility and evidence on Voir Dire?
Section 14 of the 2006 Act provides that, where a question arises concerning the admissibility of any evidence, the Judge may admit the evidence, subject to evidence being later offered which establishes its admissibility. In jury trials, judges must have regard to whether the jury would be able to disregard the evidence should the party offering it be unable to establish its admissibility. If the evidence is provisionally admitted under s 14 and then the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration. In a jury trial a direction should be given to the jury to disregard the evidence.
Section 15 of the 2006 Act governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a “voir dire” (a “hearing within a hearing” or “trial within a trial”), when the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as “preliminary facts”. Section 15 applies to all witnesses, and to evidence given in any type of hearing held to determine the admissibility of evidence.
Evidence given at a voir dire will be admissible in other stages of the proceeding only if the evidence given by the witness at the voir dire is inconsistent with the witness’s subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency. However, note that cross-examination on a statement excluded under ss 29 or 30 is not allowed by virtue of s 90 of the 2006 Act.
What is the “Burden of Proof”?
The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington Principle”. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
While the principle is still regarded as a fundamental tenet of the criminal law, it is subject to a number of limitations in both law and practice.
The fact that the prosecution bears the ultimate burden of proving the case beyond reasonable doubt does not mean that the defence need not put forward any sort of case at all. If, for example, the prosecution proves that D confronted V, took a knife out of her bag, and stabbed him, it would be unwise for V’s lawyer to refrain from cross-examination or from calling evidence in reliance on the burden of proof. In such a case, once the prosecution has proved the facts from which, in the absence of some sensible explanation from the defendant, it is an inescapable conclusion that D both wounded and intended to wound V, D in effect has to produce some sort of story if she wants to suggest that the conclusion is wrong. This is not, however, a burden of “proof” – D does not have to prove anything. Rather, it is a practical obligation to point to some evidence which suggests a reasonable doubt about the conclusions one would otherwise draw from the prosecution case.
A rather different situation arises where D wishes to put up a defence to the charge – rather than simply stating they did not do the act or have the necessary mental element. In presenting its case, the prosecution is under no obligation to negative all the various possible defences which might be available to a defendant. Once the basic elements have been proved – that D deliberately stabbed V – it is up to D to point to some evidence that suggests an explanation – such as, for example, that she was acting in self-defence. This is, however, not just a “practical obligation” of the sort discussed in the last paragraph. It is known as an “evidential burden” on the defence. Here self-defence cannot be left to the jury or considered by the judge unless it has been made a “live issue” by the defence. However, once it is made a “live issue”, it is then up to the prosecution to destroy the defence, as they retain the burden of proof.
The existence of such an “evidential burden” is therefore not inconsistent with Woolmington. The burden of proof remains where that case puts it – with the prosecution. The ultimate question for the jury is always “has the prosecution proved its case?”
However, there are exceptions to the Woolmington principle in which the legal burden is unequivocally placed on the defendant, for example where the defendant wishes to rely on the defence of insanity (s 23 Crimes Act 1961) and where there exist specific statutory exceptions (e.g. s 180(4) Crimes Act 1961). There are places where the Evidence Act 2006 places the burden of proving a particular issue on one party, and occasionally this may be the defendant (see, for example, s 45 regarding identification evidence).
In addition, the law has developed in such a way as to include offences where Woolmington is seen simply to not apply – these are known as public welfare regulatory offences.
Woolmington may not apply: Public Welfare Regulatory Offences The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public, rather than to punish individuals for immoral or otherwise blameworthy conduct (e.g. offences related to maritime and aviation safety). In these cases the courts have developed a no-fault defence, with the burden of proof on the defendant.
[Note that the effect of the changes in the Criminal Procedure Act 2011 is to repeal s 67(8) Summary Proceedings Act 1957, which contained an exception to Woolmington for summary offences that provided a statutory defence].
What is the Standard of Proof?
Any party bearing a legal burden of proof must discharge this burden to the standard required.
In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. In contrast, any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
What is “Beyond Reasonable Doubt”?
The courts have been reluctant to provide any detailed or precise definition of the meaning of “beyond reasonable doubt”. However, a majority of the Court of Appeal in R v Wanhalla [2007] 2 NZLR 573 at [49] formulated some assistance to juries after reviewing overseas research and models, concluding that juries should be told that
“Proof beyond reasonable doubt is a very high standard of the proof which the Crown will have met only if, at the end of the case, you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.
What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence”.
Beyond reasonable doubt is therefore a very high standard of proof which the Crown will have met only if, at the end of the case, the jury is sure that the defendant is guilty.
What is the Balance of Probabilities?
Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.
What is Corroboration?
Section 121 of the Evidence Act 2006 governs the general approach and exceptions relating to corroboration, and in doing so it reflects the previous law. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard. It does not always follow that the court will act upon the evidence of one witness; it simply means that it may do so when sufficiently satisfied as to its cogency.
However, there are two types of offence – perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s 73 Crimes Act) — in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, “corroboration”, which is some independent evidence which implicates the defendant in the crime charged, is required as a matter of law.
Section 121(2) provides that there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction relating to the absence of corroboration. This is subject to the exceptions in s121(1) for perjury and treason, and to s 122 (whereby the judge may warn the jury about unreliable evidence). Under s 122, if the judge is of the opinion that uncorroborated evidence may be unreliable, he or she may warn the jury of the need for caution, notwithstanding the general provision in s 121(2).
Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.
What is the Adversarial System in the Trial Process?
The conduct of criminal trials follows the “adversarial” or “accusatorial” system of justice developed through the English common law. The essential features of this system are as follows:
- The facts of the case, and evidence relevant to the determination of those facts, emerge by means of questions put by prosecution or defence to witnesses called by them.
- It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they should be asked.
- Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.
- During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
- The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case; he or she may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
Who must make an Oath or Affirmation before giving Evidence in Court?
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence. Witnesses under the age of 12:
- must be informed by the Judge of the importance of telling the truth and not telling lies (unlike the previous law, there is no requirement for a judge to determine a child’s understanding of the difference between truth and lies or of the importance of telling the truth: R v Tanner [2007] NZCA 391); and
- must, after being given that information, make a promise to tell the truth, before giving evidence.
Notwithstanding these general requirements in section 77 Evidence Act 2006, with the judge’s permission a witness of any age may give evidence without taking an oath, making an affirmation or making a promise to tell the truth. If the judge gives such permission, he or she must inform the witness of the importance of telling the truth and not telling lies before the witness gives evidence. The evidence of the witness must then be treated as if it had been given on oath. Permission may be given for witnesses such as adult witnesses with an intellectual disability, or where a child witness is unable to promise to tell the truth.
What is the general Conduct of Trials?
The Criminal Procedure Act 2011 governs the conduct of all trials. In general there are now fewer differences between the process for judge alone and jury trials.
As under the previous law for jury trials, the prosecution open the case and call witnesses, to be followed by the defence opening and calling of witnesses. The Court may give the defendant leave to make an opening statement before the prosecution calls any witnesses. By virtue of s 107 of the Criminal Procedure Act 2011, the defence may call a witness immediately after a prosecution witness (previously this only applied to expert witnesses). This provision is designed to assist the jury in building up a “story” about what happened and how the evidence fits together.
Section 84 of the Evidence Act 2006 further provides:
Examination of witnesses
(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
(2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.
Jury trials will still generally run according to the following sequence:
(a) After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof etc.
(b) The Crown then makes an opening address, in which the prosecutor will provide an explanation of the charge or charges, reiterate the burden and standard of proof and summarise the case against the defendant and the evidence that the Crown proposes to call.
(c) Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness in order to clarify or qualify any matter which was raised during the cross-examination (“re-examination”).
(d) If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury. In a few cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In most, however, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case.
(e) The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and re-examination as set out above.
(f) The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
(g) Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
(h) Finally, the judge sums up to the jury before it retires to consider its verdict.
It should be reiterated that the defence is not obliged to call any evidence. In the event that it does not do so, the trial proceeds immediately to closing addresses at the conclusion of the prosecution case. Should any hearing proceed without the defendant, s 124 Criminal Procedure Act 2011 outlines the applicable procedure to follow (for a brief discussion see Kumar v R [2013] NZCA 77).
Although this is the usual sequence, it may on occasions be varied. In particular, in jury trials, as mentioned above, it is becoming increasingly common for defence counsel to provide a brief statement of the issues in dispute in the case at the conclusion of the Crown opening and before the prosecution calls any witnesses, so that the jury is made rather more aware of what the case is about before it hears any evidence. In such cases, the defence is still entitled to make a full opening address at the conclusion of the prosecution case if it intends to call evidence.
The Criminal Procedure Act 2011 has repealed many of the traditional distinctions between summary defended hearings and jury trials. It provides for four categories of offence: judge alone trials for Category 1 and 2 offences (not punishable by imprisonment, or punishable by a maximum of less than 2 years’ imprisonment respectively); judge alone trials but with the ability for election of trial by jury for Category 3 offences (punishable by two years’ imprisonment or more); and Category 4 offences, a limited list of offences in schedule 1 of the Act that are tried by a High Court jury (unless a judge alone trial is ordered in long and complex cases/ cases involving issues of juror intimidation).
What is Pre-Trial Disclosure?
The Criminal Disclosure Act 2008 codifies and reforms disclosure in all criminal proceedings (which includes charges before the Youth Court and appeals, but does not include matters ancillary to proceedings, such as applications for bail or name suppression). The Act has a four step regime: initial disclosure by the prosecution, full disclosure by the prosecution, defence disclosure and third party disclosure.
What is Initial Disclosure?
Although it is useful to disclose as much as possible at an early stage, under the Act the requirement of initial disclosure (at the commencement of proceedings and no later than 21 days after commencement) is limited to:
- a summary of the facts of the prosecution case
- a copy of the charging document
- a summary of the defendant’s right to apply for further information before entering a plea
- the maximum (or minimum) penalty for an offence
- a list of known previous convictions
- a list of previous offences proved to have been committed by the defendant and of a kind to which s284(1)(g) of the Children, Young Persons and their Families Act 1989 applies.
The defendant may apply for further information after commencement of proceedings, which must be disclosed as soon as is practicable. This may include information such as:
• names of witnesses intended to be called by the prosecution,
• a list of the exhibits that are proposed to be produced on behalf of the prosecution at the hearing or trial;
• a copy of all records of interviews with the defendant
• a copy of all records of interviews of prosecution witnesses by a law enforcement officer that contain relevant information
• copy of job sheets and other notes of evidence completed or taken by a law enforcement officer that contain relevant information a copy of any records of evidence produced by a testing device that contain relevant information
• a copy of any diagrams and photographs made or taken by a law enforcement officer that contain relevant information and are intended to be introduced as evidence as part of the case for the prosecution
• a copy of any statement made by, or record of an interview with, a co-defendant in any case where the defendants are to be proceeded against together for the same offence
• a list of any of the above information that the prosecutor refuses to disclose to the defendant, together with the reason for the refusal; and (if the defendant requests) the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by sections 16, 17 and 18 (see below in Chapter 9) and there is no overriding public interest (re: s 18).
What is Full Disclosure?
Under s 13 Criminal Disclosure Act 2008, full disclosure by the prosecution must be made as soon as reasonably practicable after a defendant has
• pleaded not guilty
• when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court.
All relevant information must be disclosed at this point, including (but not restricted to) “standard information” such as statements, briefs of evidence of prosecution witnesses, names and statements/ records of interview with those who the prosecution does not intend to call, information supplied by expert witnesses, convictions of prosecution witnesses, and lists of exhibits.
To comply with the rules for full disclosure, the prosecutor must also supply the defence with a list of relevant information that is not disclosed and the reason for the refusal.
The Criminal Disclosure Act 2008 defines the meaning of “relevant” under the Act:
8 Meaning of relevant
In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
The Criminal Law Reform Committee in its Report on Discovery in Criminal Cases (1986) has stated that “it is not always easy, as some prosecutors have testified, to estimate what information will be useful to the defence nor to assess what material, in all fairness, ought to be disclosed”. The Police instructions on criminal disclosure advise that, when deciding whether information or an exhibit supports or rebuts the case against the defendant, prosecutors should consider whether the information or exhibit:
• will help or hinder the defendant’s ability to defend the charges;
• would or might detract from the prosecution case, or assist the defence, or incriminate another person.
These suggestions do not add to the statutory section, being simply reiterations of its content.
The instructions further advise that police must retain material or information which points towards a fact or an individual, casts doubt on the suspect’s guilt, or implicates another person.
The prosecution must allow inspection of exhibits when requested by the defence after full disclosure occurs, where the exhibits were listed under s 13(3)(e) or (f) in full disclosure. The inspection by the defendant is subject to any conditions that the prosecutor considers necessary for the purpose of:
• ensuring the security and integrity of the exhibit or otherwise maintaining its evidential value; and
• in the case of an exhibit needed for use on an on-going basis for law enforcement purposes, ensuring that the exhibit can continue to be used as such.
The inspection is also subject to any conditions imposed by the Court under section 31, should either party apply to the court for an order relating to conditions.
Furthermore, the prosecutor may refuse to allow the defendant to inspect an exhibit if it is needed for use on an on-going basis for enforcement purposes, and the imposition of conditions would not enable the inspection to take place without prejudicing on-going law enforcement. Disclosure and notification regarding conditions should be made to the defence as soon as is reasonably practicable.
In addition to the obligations entailed in full disclosure, the prosecution must disclose additional information requested by the defence unless the information is not relevant or the request appears to be frivolous or vexatious– this must be a request for particular information, not a general request.
Sections 15-18 Criminal Disclosure Act 2008 allow for withholding of information at all stages (initial, full and additional disclosure), if
• the prosecutor does not hold the information in recorded form or is not in possession or control of it (s 15)
• disclosure is likely to prejudice the maintenance of the law (s 16(1)(a))
• disclosure is likely to endanger the safety of any person (s 16(1)(b))
• it is material prepared to assist in the conduct of the trial/ prosecution (s 16(1)(c)(i))
• a communication dealing with matters relating to the conduct of the prosecution and is between the prosecutor and another person employed by the same person or agency that employs the prosecutor; or the prosecutor and any adviser to the prosecutor (s 16(1)(c)(ii))
• it is analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor (s 16(1)(c)(iii)
• it is material subject to non-disclosure under another enactment or disclosure would be contrary to the provisions of any other enactment (s 16(1)(d)-(f), s 16(1)(k)) (undercover officers (s 16(1)(d)), witness anonymity (s 16(1)(e)), witnesses’ (s 16(1)(f), s 17) or informant’s addresses (s 17), privilege (s 16(1)(j)).
• disclosure is likely to prejudice the security or defence of New Zealand or international relations (s 16(1)(g)(i)); or prejudice entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation (s 16(1)(g)(ii)).
• disclosure is likely to facilitate the commission of an offence (s 16(1)(h)).
• disclosure would constitute contempt of court or of the House of Representatives (s 16(1)(i)).
• the information is publicly available (s 16(1)(l)), has previously been made available to the defendant (s 16(1)(m)- for example under the Official Information Act 1982 or Privacy Act 1993) or does not exist/ cannot be found (s 16(1)(n)).
• the information reflects on the credibility of a witness who will not be called by the prosecution, but may be called by the defence and is not for any other reason relevant (s 16(1)(o)).
• the information would disclose a trade secret or prejudice the commercial position of the supplier of the information (unless it is in the public interest to disclose it) (s 18).
• If the prosecutor does withhold information, reasons must be given.
Any information that has been previously withheld should be regularly reviewed to determine whether circumstances have changed. If a change in circumstances means that the information should now be disclosed, that should be done as soon as is practicable.
There may also be requests for information made to police under the Official Information Act 1982 or Privacy Act 1993. Such information can be withheld if it is information that could be sought by the defendant or that has been disclosed to, or withheld from, the defendant under the Criminal Disclosure Act 2008. Requests for information should be considered under the Official Information Act 1982 or Privacy Act 1993 where the request takes place before the commencement of proceedings, where the request does not relate to criminal proceedings, or where the information is not covered by the Criminal Disclosure Act. Obligations under the Criminal Disclosure Act begin with the commencement of proceedings and continue for as long as information related to the proceedings is held.
What is Disclosure by the Defence?
Generally the defence is under no obligation to disclose any part of its case to the prosecution. However, there are two exceptions:
- if the defendant intends to produce evidence in support of an alibi — that is, a claim that the defendant was somewhere else at the time of the alleged offence — he or she must give notice of the particulars of that alibi to the prosecution within 10 working days after a plea of not guilty.
- if the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report (or a summary if no brief or report is yet available) at least 10 working days before the date fixed for the trial (s 23 Criminal Disclosure Act 2008).
What is Disclosure by non-parties?
The defendant may apply to the court for an order granting a hearing to determine whether a non-party should have to make a disclosure. This may be done at any time after pleading not guilty to a charge or after first appearance at Youth Court. The prosecution and the person alleged to hold the information may make written submissions to the court. A hearing will be granted if the information is likely to be held by a non-party and it appears to be relevant.
Once a hearing is granted, all those likely to hold the information, and those to whom the information relates, are served notice of the hearing. All of the people served notice can then make submissions or call evidence at the hearing. The Court may also grant leave to appear to any person who has an interest in whether the non-party disclosure should be made. The judge may order disclosure if satisfied that the information is relevant and that it is in the public interest to disclose it. The judge’s decision can be appealed by any person involved, including non-parties.
What is the Effect of non-disclosure of information (s 34 Criminal Disclosure Act 2008)?
Where evidence sought to be adduced by a party is based on information that should have been disclosed but was not (e.g. alibi evidence), the court may exclude the evidence, adjourn the hearing, or admit the evidence (if it is in the interests of justice to do so). This applies to evidence adduced by both prosecution and defence.
What is the comment on the Defendant’s Failure to Give or Offer Evidence?
The defendant does not need to give evidence and is not obliged to call any other evidence on his or her behalf. In the event that he or she does not do so, s 33 Evidence Act 2006 provides that:
Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
While the section prohibits the prosecution from making any comment (whether adverse or not), it gives the judge the discretion to do so. In practice, judges rarely comment on the defendant’s failure to give evidence. However, where a judge wishes to do so he or she must emphasise that the burden of proof still remains upon the Crown and must not leave the jury with the impression that if the defendant were innocent he or she would have given evidence. Beyond that, however, there is no precise rule determining what the judge is or is not entitled to say.
The 2006 Act also recognises an important aspect of the right of silence, as it applies to silence before trial in criminal proceedings. Section 32 provides that no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to statements or disclose a defence before trial (such as a refusal to answer questions in an investigative interview). In addition, the Judge must direct the jury that it may not draw an inference of guilt from such failure.
