Short Answers

Question 1

The exclusive rules of evidence deal with

Answer 1

Identification
Hearsay
Opinion
Propensity
Improperly obtained evidence
Verasity

Question 2

Relationship between veracity and propensity

Answer 2

Veracity- a disposition to refrain from lying

Propensity - a tendency to act in a particular way

Question 3

S37(3) Veracity rules, what a judge may consider

Answer 3

(a) lack of veracity on part of the person when under legal obligation to tell the truth.
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty and 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

Substantial helpfulness is not a sufficient test in two instances (veracity)

Answer 4

• Where the prosecution wish to offer evidence about a defendants veracity (s38), and
• Where a defendant offers veracity evidence about a co-defendant

Question 5

s38(2) The prosecution in a criminal proceeding may offer evidence about a defendants veracity only if -

Answer 5

(a) the defendant has offered evidence about their veracity or has challenged the veracity of the prosecution witness by reference other than the facts in issue; and
(b) the judge permits the prosecution to do so.

Question 6

s38 (3) In determining whether to give permission under subsection (2)(b), the judge may take into account the following matters:

Answer 6

(a) the extent to which the defendant’s veracity or the veracity of a 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 7

Propensity rule s40(1)

Answer 7

(a) means evidence that tends to show a persons 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 8

Propensity general rule

Answer 8

A party may offer propensity evidence about any person. This is subject to some restrictions relating to the defendant and to the complainant’s sexual experience.

Question 9

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

Answer 9

(a) the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances that 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 that 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 that 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 10

s43 Propensity evidence offered by prosecution about defendants, (1)

Answer 10

The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 11

hearsay statement means a statement that—

Answer 11

(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 12

Hearsay Rule

Answer 12

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 13

18 General admissibility of hearsay

Answer 13

(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.

Question 14

Why is hearsay generally excluded? (lack of reliability of hearsay evidence)

Answer 14

• where the maker of the 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 demeanor of the person who made the statement in question.
• there is danger that witnesses will make mistakes about the meaning or content of statements made by other people. The game of ‘Chinese Whispers’ where the inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.

Question 15

The reason for the hearsay rules existence is therefore…

Answer 15

the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 16

Definition of circumstances in relation to a statement (hearsay) made by a person who is not a witness include:

Answer 16

(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

Question 17

Definition of unavailable witness (hearsay statement) s16(2)

Answer 17

(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 18

Admissibility of hearsay statements contained in business records s19(1)

Answer 18

(1) A hearsay statement contained in a business record is admissible if—
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.

Question 19

Opinion statement definition s(4)

Answer 19

means a statement of opinion that tends to prove or disprove a fact

Question 20

What is the rationale behind the general exclusionary rule where by an opinion is not admissible.

Answer 20

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.

Question 21

Justifications for the rule include that:

Answer 21

• 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’ evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (EG opinion based largely on propensity evidence).

Question 22

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

Answer 22

• opinion must be the only way in which to effectively communicate the information to the finder or the fact.
• the witness must be stating an opinion from something personally perceived

Question 23

Expert evidence consists of:

Answer 23

• fact
• opinion
• or a mixture of the two

Question 24

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

Answer 24

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

Question 25

Expert defined

Answer 25

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

Question 26

Qualification as an expert

Answer 26

The judge must determine whether the expert witness is properly qualified to testify.

The expert is required to demonstrate to the court that they have the requisite qualification to be deemed ‘expert’. The expert may be qualified through formal study and training, from experience or both.