The Exclusive Rules of Evidence

Question 1

What do the exclusive rules of evidence deal with?

Answer 1

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

Question 2

Define Veracity and Propensity

Answer 2

Veracity - A disposition to refrain from lying

Propensity - a tendecy to act in a particular way

Question 3

What is required of evidence being offerend about a persons Veracity (s37)

Answer 3

It must be substantially helpfull.

A judge may consider if the evidence tends to show;

(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.

Question 4

In relation to veracity, what restriction are there for a party who calls a witness?

Answer 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.

Question 5

In which two instances is the substatial helpfulness test alone not sufficient

Answer 5

1) Where the prosecution wish to offer evidence about a defendant’s veracity.
2) Where a defendant offers veracity evidence about a co-defendant.

Question 6

When may the prosecution offer evidence of a defendant’s veracity.

Answer 6

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 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 proposed evidence must meet the substantial helpfulness test.
• The prosecution must get permission from the judge to offer the evidence.

Question 7

What is the Propensity Rule

Answer 7

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 8

What does propensity evidence not include?

Answer 8

• 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 9

When may the prosecution offer propenstiy evidence about a defendant?

Section 41 and 43

Answer 9

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 10

Requierments for propensity admission against a defendant

Answer 10

a) constitute “propensity evidence”.
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.

Question 11

Define Hearsay Statment

Answer 11

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 12

Why are hearsay statments inadmissable

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.
• 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.

Question 13

When is hearsay admissible (s18)?

Answer 13

• When the circumstances relating to the statement provide reasonable assurance the statement is reliable.
• And the maker of the statement is unavailable as a witness or undue delay would be cause if the maker of the statement was requiered to be a witness.

Question 14

What are “Circumstances” in relation to the hearsay rule?

Answer 14

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 15

Who is defind as “Unavailable is a witness”?

Answer 15

1. Dead
2. Outside NZ and not practicable for them to be a witness
3. Unfit to be a witness bacuase of age ot mntal condition
4. connot with reasonable diligence be idientified or found
5. is not compellable

Question 16

When is a business record admissible as hearsay?

Answer 16

A business record will be admissible where no useful purpose would be served by requiring the person to be a witness because there can be no reasonable expectation that the person will be able to recollect the matters dealt with in the information supplied for the business record.

Question 17

What is the Opinion rule of evidence?

Answer 17

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

Question 18

What is the definition of an Opinion?

Answer 18

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

Question 19

What are three reasons why Opinion is excluded

Answer 19

• 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 20

What is s24 General admissibility of opinions

Answer 20

The oppinion must be:

• Necessay to enable the witness to communicate the information, or for the fact finder to understand.
• What the witness saw, heard, or personally perceived.

Question 21

What must the opinion be to be admissible under s25 (admissibility of expert opinion evidence).

Answer 21

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 22

What is an expert and what must the judge decide in relation to an expert.

Answer 22

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.

Question 23

An expert opinion will be admissible if the fact-finder is likley to obtain substatial help from the opption in:?

Answer 23

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

Question 24

What Notice requierment is placed on defence to give notice of expert evidence?

Answer 24

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.