Rules Of Evidence

Question 1

Veracity Rules

Answer 1

S37
(1) A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that persons veracity
(2) In a criminal proceeding, evidence about a person’s veracity must comply with s38 and 39
(3) In deciding for ss(1) whether evidence is substantially helpful, judge may consider whether proposed evidence shows 1 or more of
(a) Lack of veracity on part of person under legal obligation to tell the truth
(b) That the person has been convicted of 1 or more offences that indicate propensities 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 part of the person to be untruthful

Question 2

Veracity Rules (ss 4 and 5)

Answer 2

37(1)
(4) A party who calls a witness
(a) May not offer evidence to challenge that witness veracity unless the judge determines the witness to be hostile
(b) May offer evidence as to the facts in issue contrary to the evidence of that witness
(5) For the purpose of this act, veracity means the disposition of a person to refrain from lying, either generally or in the proceeding

Question 3

Evidence of defendants veracity

Answer 3

S38
(1) A defendant in a criminal proceeding may offer evidence of his veracity
(2) The prosecution in a criminal proceeding may offer evidence of a defendants veracity only if
(a) The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by red other than the facts in issue and
(b) The judge permits the prosecution to do so
(3) In determining whether to give permission under 2(b) the judge may take into account
(a) The extent to which the defendants veracity or the veracity of a prosecution witness has been put in issue in the defendants evidence
(b) The time elapsed since any conviction about which the prosecution wants to give evidence
(c) Whether any evidence given by the defendant about veracity was elicited by the prosecution

Question 4

Propensity Rule

Answer 4

S40
(1) In this section and 41-43, propensity Evidence
(a) Means evidence that’s tends to show a person’s property to act in a particular way or have a particular state of mind, being evidence of a ta, 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
-one of the elements of the offence for which the person is being tried or
- the cause of action in the proceeding in question
(2) A party may offer propensity Evidence in a civil or criminal proceeding about any person
(3) However propensity Evidence about
(a) A defendant in a criminal proceeding may only be offered in accordance with s41, 42 or 43, whichever is applicable and
(b) A complainant in a sexual case in relation to the complainants sexual experience may be offered only in accordance with s44.
(4) Evidence that is soley or mainly relevant to veracity is governed by the veracity Rules ins37, this section does not apply to that evidence

Question 5

Propensity Evidence about defendants

Answer 5

S41
(1) A defendant in a criminal proceeding may offer propensity Evidence about himself
(2) If a defendant offers propensities evidence about himself, the prosecution or another may may, with permission of the judge, offer propensity Evidence about the defendant
(3) S43 does not apply to propensity Evidence offered under ss2.

Question 6

Propensity offered by prosecution about defendant

Answer 6

S43
(1) The prosecution may offer evidence of defendants propensity if probative value outweighs risk it will unfairly prejudice the defendant
(2) In assessing probative value, judge must take into account the nature of the issue in dispute
(3) In assessing probative value, judge should consider
-frequency which acts have occurred
- connection in time between acts, omissions etc
- extent of similarities between acts…
- number of persons making allegations
- potential for collusion between multiple allegations
- extent to which act omission etc is unusual

Question 7

Hearsay Definition

Answer 7

S4
A statement made by a person other than a witness
Offered in evidence to prove the truth of it’s contents

Question 8

Hearsay rule

Answer 8

S17
A hearsay statement is not admissible except
(A) As provided by this Subpart of provision of other act or
(B) In cases where
- this act provides that this Subpart does not apply
- the hearsay statement is relevant and not otherwise Inadmissible under the act

Question 9

General admissibility of hearsay

Answer 9

S18
A hearsay statement is admissible if
(A) The circumstances provide reasonable assurance it is reliable
And either
(B) The maker is unavailable as a witness or
Judge considers undue expensive or delay to require them
(2) Section is subject to s20 and 22

Question 10

Circumstances 16(1)

Answer 10

Circumstances In relation to statement made by non witness
(A) Nature of the statement
(B) Contents of the statement
(C) Circumstances that relate to making it
(D) Circumstances that relate to the veracity of person
(E) Circumstances that relate to accuracy of observation

Question 11

Unavailable as witness 16(2)

Answer 11

The person is
(A) Dead
(B) Outside NZ and not reasonably practical to be a witness
(C) Unfit due to age or medical condition
(D) Cannot be identity or found
(E) Nor compellable to give evidence

Question 12

Notice of hearsay in criminal proceeding

Answer 12

S22
(1) No hearsay may be offered unless
(A) Party proposing to offer complies with ss2, 3 and 4
(B) Other party has waived requirement
(C) Judge dispenses with requirements

(2) Party offerings hearsay must provide written notice stating
(A) Intention to offer hearsay statement
(B) Name of maker of statement
(C) If made orally, contents of statement
(D) If 18(1)(a) relied on, the circumstances that provide assurance it is reliable
(E) If 19 relied on, why soc is a businesses record
F if 18(1)(b)(1) why person unavailable
G if 18(1)(b)(2) why undue expense or selay