The exclusive rules of Evidence

Question 1

Rules of admissibility are rules of law

Answer 1

In R v Gwaze14 the Supreme Court has 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 2

What are the character evidence types

Answer 2

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
• “veracity” – a disposition to refrain from lying, and
• “propensity” – a tendency to act in a particular way.

Question 3

what is Section 37 Evidence act rule?

Answer 3

37 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 4

When does the substantial helpfulness test not apply?

Answer 4

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 5

When can you ask a witness about previous convictions?

Answer 5

There is no automatic right to ask any witness if they have been convicted of an offence. To be admissible, such questions must be substantially helpful in assessing the person’s veracity. The detailed provisions of the previous statute and common law no longer apply.

Question 6

When can the prosecution question the defendants veracity

Answer 6

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.

Question 7

what is Propensity evidence?

Answer 7

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 8

What does propensity include?

Answer 8

• propensity as to actions

* propensity as to state of mind (eg a lack of inhibition, a love of violence).

Question 9

What does propensity not include?

Answer 9

• 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 10

When can prosecution offer evidence about a defendants propensity?

Answer 10

41 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.

43 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.

Question 11

what does a judge assess for propensity applications?

Answer 11

The Court in Rei v R17 clearly laid out the requirements for the admission of propensity evidence under s43. 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.

Question 12

What is the test for admissibility of propensity evidence?

Answer 12

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.

Question 13

What was said in Mahomed v R

Answer 13

The rationale for the admission of propensity evidence rests largely…on the concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have.

Question 14

Do you need a conviction to use as propensity evidence?

Answer 14

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).

Question 15

What is Hearsay?

Answer 15

“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”

Question 16

What is a statement?

Answer 16

“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 17

What does other than witness mean in terms of hearsay?

Answer 17

The ability to cross-examine the maker of the statement means that the primary rationale for the rule against hearsay (the inability to test the credibility and accuracy of the maker) is not applicable. Such statements may still be inadmissible by virtue of another rule under the Act (for example, s37 veracity rule).The definition of hearsay means that out-of-court statements made by a “witness” (someone who gives evidence and is able to be cross-examined in a proceeding) are not hearsay.

This applies even if the person who made the statement does not give evidence-in-chief on the statement made out of court, because the statement maker is available to be cross-examined. The ability to cross-examine the maker of the statement means that the primary rationale for the rule against hearsay (the inability to test the credibility and accuracy of the maker) is not applicable. Such statements may still be inadmissible by virtue of another rule under the Act (for example, s37 veracity rule).

Question 18

what is the hearsay rule?

Answer 18

17 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.

Question 19

general admisibility of hearsay in the evidence act?

Answer 19

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 20

Reason for the hearsay rule?

Answer 20

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.

Question 21

Section 16 circumstances

Answer 21

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 22

What is meant by unavailable as a witness?

Answer 22

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 23

what if a person is caused to be unavailable?

Answer 23

Section 16(3) provides that:
(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 24

Admissibility of hearsay statements contained in business records

Answer 24

(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 25

What is a business record?

Answer 25

Under s19(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.

Question 26

conditions when hearsay can be offered

Answer 26

22 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.

Question 27

What must a written notice of hearsay state?

Answer 27

Section 22

(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.

Question 28

When can a judge no require the written hearsay notice?

Answer 28

Section 22

(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

What does Section 23 state about statements of opinion?

Answer 29

23 Opinion rule

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

Question 30

Why is opinion evidence excluded?

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

Non expert opinion evidence that is allowed?

Answer 31

24 General admissibility of opinions
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.

Question 32

Admissibility of expert opinion evidence

Answer 32

25 Admissibility of expert opinion evidence

(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

What are the qualifications of an expert?

Answer 33

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 34

When can expert evidence be based on proven facts?

Answer 34

“Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant ones into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.”

Question 35

Expert evidence about sanity

Answer 35

Section 25(4) provides for the admissibility of a person’s statement about his or her state of mind in order to establish the factual basis for the expert’s opinion on the sanity of that person. It limits its scope to opinions based on statements made by the person whose sanity is in issue, thereby excluding statements by others, or statements pertaining to mental disorders falling short of legal insanity. Furthermore, the statements must be about the person’s state of mind, and so any statements informing the expert’s opinion made about other issues will not be covered by s25(4).

Question 36

Points about the conduct of expert witnesses

Answer 36

• 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.