The exclusive rules of evidence

Question 1

*What are the “character” common law classes of evidence?

Do the rules apply to bail and sentencing hearings?

Answer 1

• “veracity” – a disposition to refrain from lying, and
• “propensity” – a tendency to act in a particular way.

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 (where it relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or his or her reputation in sexual matters).

Question 2

*s37(3) veracity rules
Explain substantial helpfulness in relation to veracity.

What may the judge consider when deciding on whether evidence of a person is substantially helpful?

When can a party offer evidence to challenge the veracity of their own witness?

Answer 2

(1) A party may not offer evidence about a person’s veracity unless the evidence is substantially helpful in assessing that persons veracity
(3) In deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider if evidence tends to show 1 or more:

• lack of veracity of the person when under a legal obligation to tell the truth
• person has been convicted of one or more offences that indicate a propensity for dishonesty or lack of veracity
• any previous inconsistent statements
• bias of the person
• a motive of the person to be untruthful

A party may not offer evidence to challenge the veracity of their own witness unless the witness is declared hostile

Question 3

*What must occur in order to offer evidence of a defendant’s veracity?

VRl
DOfEvV or CVPW
PEvMSHT
PJ

Answer 3

In order to be able to offer evidence of a defendant’s veracity:
• the prosecution must show that veracity is relevant
• the defendant has offered evidence about his veracity or has challenged the veracity of a prosecution witness
• the proposed evidence must meet the substantial helpfulness test.
• The prosecution must get permission from the judge to offer the evidence.

Question 4

• What may the judge take into account when deciding whether to give permission for the prosecution to question the defendant about their veracity?
• Ex DorPWV PI
• TElSC
• EvDVElP

Answer 4

(s38(3)):
• 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
• the time that has elapsed since any conviction about which the prosecution seeks to give evidence
• whether any evidence given by the defendant about veracity was elicited by the prosecution.

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 5

*s40(1) Propensity rule
What does Propensity evidence include?
What does it exclude?

Defn
XAO ElOfPTr COAOP

Answer 5

40 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

Question 6

*What is the general rule with regards to propensity evidence?

Answer 6

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 7

*When may the prosecution offer propensity evidence about a defendant? S43(1)

Answer 7

Only way the prosecution can offer propensity evidence about a defendant is if the defendant offers propensity evidence about themselves; or if 43 is satisfied

43 Propensity evidence offered by prosecution about defendants
(1) if the evidence has a probative value in relation to an issue which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 8

*When assessing the probative value of propensity evidence, what must the Judge take into account and consider? S43(2) and (3)

N
Fr
CnT
Sim
Num P
Al Col
Un

Answer 8

(2) the nature of the issue in dispute.

(3) (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.

Question 9

*What must the probative value outweigh?

Answer 9

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 10

*What is the definition of hearsay statement and statement?

Answer 10

Under the Act, a hearsay statement is defined as (s4):
“a statement that –
(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”

“Statement” means (s4):
• a spoken or written assertion by a person of any matter, or
• non-verbal conduct of a person that is intended by that person as an assertion of any matter.

Question 11

*Explain the general admissibility of hearsay s18(1) and what are the two criteria for admissibility?

CRS PRA SR
MS Unv
JC Und ED

Answer 11

18 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.

Question 12

*What is the rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence?

Cross
Demeanour
Mistakes

Answer 12

• 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.

Question 13

*What is the definition of circumstances in relation to a statement by a person who is not a witness?

NCMVAObs

Answer 13

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

Question 14

*What is meant by unavailable as a witness?

D
ONZ & xRPW
Un A PMC
XRD IorF
XCom

Answer 14

Section 16(2) 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.

Question 15

*What needs to be given in order to have a hearsay statement admitted?
When may the Judge dispense with the requirements?

Answer 15

Notice of hearsay must be given in order to have a hearsay statement admitted under s18 or s19.

The notice requirement is contained in s22: Notice of hearsay in criminal proceedings:

• written notice: intention to offer hearsay, name of the maker, if orally the contents, circumstances relating to the statement, if written a copy of doc
• and if applicable: why doc is a business record, why person is unavailable, why undue expense or delay,
• 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.

Judge may dispense with requirements if:

• no party is substantially prejudiced by the failure to comply
• compliance was not reasonably practicable
• interest of justice so require

Question 16

*With regards to opinion rule, what is the justification of the exclusionary rule?

Rationale: PrAd UnSupMisEv

Justifications: Weight, Confuse, Based

Answer 16

The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence.
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 17

*In order to be admissible under s24 (general admissibility of opinions), the statement must fulfil what two basic criteria?

Answer 17

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 18

*If the evidence is opinion evidence, in order to comply with s25 (admissibility of expert opinion evidence) what must the opinion be?

Answer 18

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 19

*When is expert opinion evidence admissible s25(1)

SHO
UnOEv or AsAFConDetPr

Answer 19

S25(1)
(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.

• understanding other evidence, or
• in ascertaining any fact that is of consequence in the determination of the proceeding.