The Exclusive Rules of Evidence

Question 1

The exclusive rules of evidence deal with:

Answer 1

• Veracity
• Propensity

• Hearsay
• Opinion

• Identification
• Improperly obtained evidence

Question 2

Veracity Rules

Legislation

(1) Substantially helpful…

Answer 2

S37 Evidence Act 2006

(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.

Question 3

Veracity Rules

Legislation - S37 Evidence Act 2006

(3) 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:

Answer 3

S37 Evidence Act 2006

(3)
(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

The veracity and propensity rules do not apply to bail or sentencing hearings, except:

Answer 4

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).

Of note
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).

Question 5

Evidence of Defendant’s Veracity

Legislation

When can defendant/prosecution offer veracity evidence

Answer 5

S38 Evidence Act 2006

(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.

Question 6

Evidence of Defendant’s Veracity

Legislation

In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:

Answer 6

S38 Evidence Act 2006

(3)
(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 7

Propensity Rule

Legislation

What is propensity

Answer 7

S40 Evidence Act 2006

(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;

Question 8

Propensity evidence does 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

Evidence of Defendant’s Propensity

Legislation

When can defendant/prosecution offer propensity evidence

Answer 9

S41 Evidence Act 2006

(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.

Question 10

Propensity Evidence

Legislation

When may prosecution offer propensity evidence

(1) If the evidence has…..

Answer 10

S43 Evidence Act 2006

(1) 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

Propensity Evidence

Legislation

Section 43 (3)
When assessing the probative value of propensity evidence, the Judge MAY consider, among other matters, the following:

Answer 11

S43 Evidence Act 2006

(a) the frequency with which the acts, omissions, events, or circumstances (AOEC) which are the subject of the evidence have occurred:
(b) the connection in time between the (AOEC) which are the subject of the evidence and the (AOEC) which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the (AOEC) which are the subject or the evidence and and the (AOEC) 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 result of collusion or suggestibility:
(f) the extent to which the (AOEC) which are subject of the evidence and the (AOEC) which constitute the offence for which the defendant is being tried for are unusual.

Question 12

Requirements for admission of propensity under S43

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

Answer 12

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 13

Hearsay

Legislation
S18 Evidence Act 2006

General admissibility rule
(1) A hearsay statement is admissible in any proceeding if:

Answer 13

S18 Evidence Act 2006

(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

Lack of reliability of hearsay evidence

Rationale behind the rule against hearsay

and reason for the rule

Answer 14

• Cross-examine - 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.

• Demeanour - 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.

• Mistakes - There is a danger that witnesses will make Mistakes about the meaning or content of statements made by other people.

Of note

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 15

“circumstances relating to the statement provide reasonable assurance that the statement is reliable”

Legislation

Definition of Circumstances

Answer 15

S16(1) Evidence Act 2006

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 16

“the maker of the statement is unavailable as a witness”

Legislation

When a person is unavailable as a witness

Answer 16

S16(2) Evidence Act 2006

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 17

Admissibility of hearsay statements contained in business records

Legislation

A hearsay statement contained in a business record is admissible if—

Answer 17

S19 Evidence Act 2006

(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 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 18

Business Record

Definition

Means a document that is:
- made to comply…..
- made from information…..

Answer 18

• 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 19

Opinion Rule

Legislation/Definition

Answer 19

S23 Evidence Act 2006

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

Opinion: “a statement of opinion that tends to prove or disprove a fact”.

Question 20

Rationale behind the rule against opinion evidence

Justifications for the rule:

Answer 20

• Bare - Where a witness offers a Bare opinion it holds little probative weight

• Confuse - 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.

• Based - 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 21

General admissibility of opinions

Legislation

When can a non-expert witness give opinion evidence?

Answer 21

S24 Evidence Act 06

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

Under this section, witnesses are routinely permitted to give evidence concerning:
- apparent age
- identity,
- physical and emotional state of people,
- condition of articles (worn, used, or new),
- speed,
- whether a person is under the influence of drink.

Question 22

Qualification as an expert

Legislation - Definition

Answer 22

S4 Evidence Act 2006

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

Question 23

Expert Opinion

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

Answer 23

• 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 24

The conduct of expert witnesses

Principles - Experts must……

Answer 24

Qualifications
• An expert must state his or her qualifications when giving evidence
• 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

Stated Explicitly
• The facts, matters and assumptions on which opinions are expressed must be stated explicitly
• The reasons for opinions given must be stated explicitly

Other Dutys
• An expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
• Any literature or other material used or relied on to support opinions must be referred to by the expert
• An expert is not an advocate for any party.

Question 25

Veracity

Substantial Helpfulness is not a sufficient test in two instances:

Answer 25

The substantial helpfulness test applies to both veracity evidence in evidence chief and that elicited through cross-examination.

R v K suggests someone’s reputation for veracity is potentially admissible under s37, but the substantial helpfulness will only be met in exceptional circumstances.

Substantial Helpfulness is not a sufficient test in two instances:
- Where the prosecution wish to offer evidence about a defendant’s veracity; and
- Where a defendant offers veracity evidence about a co-defendant.

Question 26

Evidence of Defendant’s Veracity

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

Answer 26

• Prosecution must show the veracity is relevant.
• Defendant has offered evidence about his or her veracity 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.
• Prosecution must get permission from the Judge to offer the evidence.

Question 27

Hearsay Statement Defined

Answer 27

Section 4 Evidence Act 2006

A hearsay statement is defined as:
“a statement that -

(a) was made by a person other than the witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents.

Question 28

Hearsay Rule

Section 17(1)

A hearsay statement is not admissible except -

Answer 28

(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.