The Exclusion Rules of Evidence

Question 1

The exclusive rules of evidence deal with…

Answer 1

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

In addition to these specific exclusionary rules, there is the general exclusion of probative value versus prejudicial effect on the proceeding (s8)

Question 2

Rules of admissibility are rules of law

Answer 2

In R v Gwaze the Supreme Court have made it clear that rules of admissibility, including ss 7 and 8, are rules of law and are not matters of discretion. Although they involve questions of judgment, they “prescribe standards to be observed”

Question 3

Relationship between the veracity and propensity rules

Answer 3

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence - “veracity” and “propensity”.

The rules do not apply to evidence about a person’s veracity if the veracity is an element of the offence for which a person is being tried (e.g. a prosecution for perjury). The veracity and propensity rules do not apply to bail or sentencing hearings, except when the evidence is covered by s44 EA2006.

Question 4

Veracity Legislation

Answer 4

s37 - Veracity rules

(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 person’s veracity.
(2) In a criminal proceeding, evidence about a defendant’s veracity must also comply with section 38 or, as the case requires, section 39.

(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity 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 the part of the person to be untruthful.

(4) A party who calls a witness—
(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.

(5) For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 5

Veracity Explanation

Answer 5

The veracity rules focus solely on truthfulness, and do not attempt to control evidence about the accuracy of a statement by a person who is attempting to tell the truth.

Section 37(4)(a) clearly signals that a party may not offer evidence to challenge the veracity of their own witness unless the witness is declared hostile. However, contrary evidence as to the facts in issue can be offered.

Question 6

Substantial helpfulness

Answer 6

Veracity evidence must be substantially helpful in assessing the veracity of the person to be admissible. This is a higher threshold than relevance under s7, in that it has to do more than simply have a tendency to prove or disprove a matter. In deciding whether evidence as to veracity is “substantially helpful”, the judge may consider the matters in s37(3)(a)-(e). The substantial helpfulness test applies to both veracity evidence in evidence in chief and that elicited through cross-examination.

Substantial helpfulness is not a sufficient test in two instances:
• where the prosecution wish to offer evidence about a defendant’s veracity (s38), and
• where a defendant offers veracity evidence about a co-defendant (s39)

Question 7

Evidence of a defendant’s veracity legislation

Answer 7

s38 EA2006 - Evidence of defendant’s veracity

(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.

(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if -
(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and (b) the Judge permits the prosecution to do so.

(3) In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:
(a) the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s 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

Grounds for Offering Evidence of the Defendants Veracity

Answer 8

In order to be able to offer evidence of a defendant’s veracity:

• the prosecution must show that veracity is relevant – permission for the prosecution to offer evidence about the veracity of a defendant will only be granted if the defendant’s veracity is in issue.
• the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence – i.e. must have orchestrated it);
• the proposed evidence must meet the substantial helpfulness test.
• The prosecution must get permission from the judge to offer the evidence

If an attack on the prosecution witness’s veracity was in reference to the facts in issue, the prosecution cannot offer evidence attacking the veracity of the defendant.

Question 9

Propensity Legislation

Answer 9

s40 EA2006 - Propensity rule

(1) In this section and sections 41 to 43, propensity evidence -
(a) means evidence that tends to show a person’s 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

(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 be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.
(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

Question 10

Propensity Evidence Includes / doesn’t include

Answer 10

Includes:
• propensity as to actions
• propensity as to state of mind (eg a lack of inhibition, a love of violence).

Doesn’t include:
• evidence of an act or omission that is one of the elements of the offence for which the person is being tried
• evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37).

Question 11

General Rule of Propensity

Answer 11

The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions relating to propensity evidence about a defendant, and in sexual cases, propensity evidence about a complainant’s sexual experience.

Question 12

Propensity evidence about defendants – s41 Evidence Act 2006

Answer 12

s41 - Propensity evidence about defendants

(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2) If a defendant offers propensity evidence about himself or 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 13

Propensity evidence about defendants - Explanation

Answer 13

• Section 41(1) incorporates the ability to offer evidence of good propensity: the propensity limb of what was termed “good character evidence” at common law. However, it also allows defendants to offer:
• evidence of disreputable conduct about him or herself (something which a defendant may want to do for tactical reasons), or
• neutral propensity (eg evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad).
• A defendant may offer propensity evidence when testifying, but also through other witnesses, if he or she does not testify.
• Subject to the need to obtain the judge’s permission, rebuttal evidence can come through the questioning of any witness, including cross-examination of the defendant if he or she testifies.
• The only way that the prosecution can offer propensity evidence about a defendant is if he or she offers propensity evidence about himself/herself; or if s43 is satisfied.

Question 14

Propensity evidence offered by prosecution about defendants Legislation

Answer 14

s43 - Propensity evidence offered by prosecution about defendants

(1) 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.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which 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 which 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 which 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.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 15

Requirements for the admission of propensity evidence under s43

Answer 15

In Rei v R, the court laid out that the evidence must:

a) constitute “propensity evidence”, that is evidence that tends to show a person’s 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 the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Furthermore, the judge must identify the relevance of the evidence, outline the competing positions of the parties, and warn the jury against illegitimate reasoning processes (M v R et alia)

Section 43 allows for admissibility of the defendant’s previous wrongdoing where the probative value versus prejudicial inquiry is satisfied (s43(1)). This type of evidence was called “similar fact evidence” at common law.

Question 16

Admissibility Test under s43

Answer 16

The test for admissibility under s43 is whether 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.

Section 43(1) focuses only on the risk of a prejudicial effect on the defendant, not on broader issues regarding prejudicial effect on the proceedings.

Probative value must outweigh the risk of an unfairly prejudicial effect, which reflects the fact that all probative evidence will be prejudicial; the test is concerned with illegitimate prejudice.

Question 17

Onus under s43

Answer 17

The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 18

“Prior Acquittal Evidence”

Answer 18

The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence, although this may affect the assessment of the probative value of the evidence. The test is the same as for propensity evidence concerning previous convictions. In addition, it is well established that conduct that is subsequent to the present offending is capable of being propensity evidence.

Question 19

Judge to take into account the nature of the issue

Answer 19

Under s43(2), when assessing the probative value of the evidence, the judge MUST take into account the nature of the issue in dispute.

Once the judge has considered the nature of the issue in dispute under s43(2), he or she MAY consider the non-exhaustive list of issues in s43(3). Other matters not listed may be considered, such as the strength of other evidence of the defendant’s guilt. The matters listed reflect the fact that the propensity evidence must have some relevance to the facts in issue over and above merely showing that the defendant has a propensity to do bad things.

Question 20

Judge to consider certain factors when assessing prejudicial effect

Answer 20

When assessing prejudicial effect on the defendant, the judge MUST consider the non-exhaustive list of factors in s43(4). If the judge decides that there is a risk that the propensity evidence will have an unfairly prejudicial effect on the defendant, he or she MUST then weigh that risk against the probative value of the evidence.

Question 21

Hearsay Admissibility Rule

Answer 21

s17 EA2006 - Hearsay rule

(1) 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.

Hearsay evidence that would be admissible under other provisions in the Act (for example, visual identification evidence) must nevertheless also comply with the hearsay rules, unless the operation of the hearsay rule is expressly excluded.

Question 22

General Admissibility of Hearsay

Answer 22

s18 - General admissibility of hearsay

(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.

(2) This section is subject to sections 20 and 22.

Section 18 makes it clear that there are two criteria for admissibility:
• reliability, and
• unavailability, or that “undue expense or delay would be caused”.

The notice requirement in s22 of the Evidence Act 2006 must also be met before a hearsay statement can be admitted.

Question 23

The Rationale of the Rule against Hearsay

Answer 23

The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence:

• 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 rule addresses 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. The game of “Chinese Whispers”, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.

The reason for the rule’s existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 24

Definition of Circumstances

Answer 24

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

circumstances, in relation to a statement by a person who is not a witness, include—

(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

This is a non-exhaustive definition. Relevant considerations may include whether it is written or oral, signed, witnessed, first-hand, etc. The circumstances relating to the making of the statement may include issues such as the physical environment, how long after the event the statement refers to, what the relationship between the maker and the witness was and so on.

Question 25

Unavailable as a Witness Definition

Answer 25

Section 16(2) & (3) defines what is meant by “unavailable as a witness”:

(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—
(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.

(3) Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

Question 26

Admissibility of hearsay statements contained in business records

Answer 26

s19 - Admissibility of hearsay statements contained in business records

(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.
(2) This section is subject to sections 20 and 22.

Question 27

Definition of Business Record

Answer 27

Under s16(1), a business record means a document that is made:

• to comply with a duty or in the course a of business, and as a record or part of a record of that business,
• from 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 he or she supplied.

This definition includes a statement made to a police officer and written down in his or her notebook or job sheets. There is no requirement of “reasonable assurance that the statement is reliable”. However, any challenge to the reliability of the statement may still affect the weight accorded to the evidence, or may lead to exclusion under s8.

Question 28

Notice requirement

Answer 28

S22 - Notice of hearsay in criminal proceedings

(1) In a criminal proceeding, no hearsay statement may be offered in evidence unless—
(a) the party proposing to offer the statement has complied with the requirements of subsections (2), (3), and (4); or
(b) every other party has waived those requirements; or
(c) the Judge dispenses with those requirements.
(2) A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating—
(a) the party’s intention to offer the hearsay statement in evidence; and
(b) the name of the maker of the statement, if known (subject to the terms of any witness anonymity order); and
(c) if the hearsay statement was made orally, the contents of the hearsay statement; and
(d) if section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and
(e) if section 19 is relied on, why the document is a business record; and
(f) if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and
(g) if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness.
(3) If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.
(4) The requirements of subsections (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.
(5) The Judge may dispense with the requirements of subsections (2), (3), and (4) if,—
(a) having regard to the nature and contents of the statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.

Question 29

Opinion Rule

Answer 29

s23
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25

Section 23 states that opinions are not admissible to prove the truth of what is believed or inferred. A witness is called to give evidence of what he or she has experienced, and the testimony must comprise direct evidence of his or her own perceptions of the facts. The premise of the general exclusionary rule is that a witness’s opinions, beliefs or inferences are not their perceptions, but are conclusions drawn from those perceptions.

Question 30

The general exclusionary rule

Answer 30

The rationale of the exclusionary rule is essentially 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. The justifications for the rule include that:

• 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’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence).

Question 31

General Admissibility of Opinion Evidence

Answer 31

s24
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Opinion evidence from a witness may include topics such as identity, speed, emotional state, weather, age and so on, but the list of areas in which nonexpert opinion is admissible is not limited.

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

• 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 (be it conclusion, inference etc) from something personally perceived.

Question 32

Admissibility of expert opinion evidence

Answer 32

s25

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding

(2) An opinion by an expert is not inadmissible simply because it is about—
(a) an ultimate issue to be determined in a proceeding; or
(b) a matter of common knowledge.

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

(4) If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person’s state of mind, then—
(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.

(5) Subsection (3) is subject to subsection (4).

Question 33

Expert Opinion

Answer 33

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

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

Question 34

Qualification as an expert

Answer 34

Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill based on training, study or experience”. The judge must determine whether the expert witness is properly qualified to testify: opinions given by non-experts on matters calling for expertise are inadmissible.

The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed “expert” in the field in question; the expert may be qualified through formal study and training, from experience, or both. Evidence offered by an expert should be within his or her area of expertise.

Question 35

The Conduct of Experts

Answer 35

• an expert must state his or her qualifications when giving evidence
• the facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
• any literature or other material used or relied on to support opinions must be referred to by the expert
• the expert must not give opinion evidence outside his or her area of expertise
• if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
• an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
• an expert is not an advocate for any party

Question 36

Notice Requirements for Expert Evidence

Answer 36

Section 23 provides that, 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 14 days before the date fixed for the trial.