The Exclusive Rules of Evidence Flashcards
What are the two ‘character’ evidence in common law
Veracity - disposition to refrain from lying
Propensity - tendency to act in a particular way
Does veracity apply if it’s an element of an offence such as prejury?
No
When does veracity and propensity rules don’t apply?
In bail or sentencing hearings except when the evidence is covered by s44 (relates directly or indirectly to sexual matters of the complainant with any other person other than the defendant)
What is veracity and explain veracity rules
A disposition of a person to refrain from lying.
Focuses on truthfulness and not an attempt to control evidence about the accuracy of a statement by a person attempting to tell the truth
Can not challenge veracity of own witnesses unless declared hostile
What can the judge consider in deciding if evidence is substantially helpful?
- motive to be untruthful
- bias
- convictions showing propensity to be dishonest
- inconsistant statements
What does substantially helpful have to do with veracity?
veracity evidence must be substantially helpful in assessing the veracity of the person. It has to be more than simply having a tendency to prove or disprove a matter
Can a defendant offer evidence about their own veracity?
Yes provided it meets the substantial helpfulness test
In order to offer evidence of the Defendants veracity
- prosecution must show the veracity is relevant
- defendant has offered evidence about their own veracity or challenged veracity of witness
- proposed evidence must be substantially helpful
- prosecution must get permission from the judge to offer the evidence
What is propensity
A persons propensity to act in a particular way or have a particular state of mind.
- propensity as to their actions or state of mind
What is not included in propensity?
- evidence of an act or omissions that is one of the elements of the offence for which the person is being tried
- evidence that is solely or mainly about veracity
What is the general rule regarding propensity?
Anyone can offer propensity evidence about any person, however there can be limitation to a defendant and in sexual cases
What can Defendants offer about propensity on themselves?
- they can offer their own good propensity. Meaning good character evidence
- also allows evidence of disreputable (not of good character) conduct
- also allows evidence of neutral propensity such as attending a courses every week without fail which creates some form of alibi
Can a defendant offer propensity through someone else?
Yes
What are limitations prosecution say about a defendants propensity?
Can offer propensity only if the evidence has a probative value and outweighs the risk that it may be prejudicial on the defendant
What can the judge consider when assessing probative value of propensity evidence?
- frequency of the acts, omissions or events (AOE)
- connection in time between AOE
- similarity between AOE
- number of people making allegations against defendant
What is the test for admissibility under s43?
It the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the unfair prejudice of the defendant
Does a conviction need to be entered for a previous incident to be used as admissible in propensity? And what is this evidence called?
No but it may affect the assessment in the probative value of the evidence.
Prior acquittal evidence
What is a hearsay statement?
A statement that as made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents
What is a witness?
Someone who gives evidence and is able to be cross examined
Is an out of court statement made by a witness hearsay?
No - because can still be cross examined. The ability to be cross examined means that that witness is not longer hearsay but may still be admissible
Does a statement need to be intended to be an assertion?
Yes
What two criteria’s are there to allow a hearsay statement to be admissible? Section 18
- That the statement is RELIABLE
- Maker of the statement is unavailable or there would be undue expense or delay if the maker of the statement was to required to be a witness
What three points of reliability are included in the rule against hearsay?
1) maker of statement is not called as witness, then cant be cross examined on it’s contents
2) juries can’t evaluate the evidence without seeing the demeanour of the person who made the statement
3) danger that witnesses will make mistake of what they have been told by other people ‘Chinese whipsers’
What is reasonable assurance of reliability?
Is where the evidence must be reliable enough for the fact finder to consider and draw their own conclusions to the weight of the evidence
What does circumstances mean in relation to making a statement by a person who is not a witness
[CMON V]
- nature
- contents
- circs relating to the making of the statement
- crics relating to the veracity of the statement
- circs relating to the accuracy of the observations of the person
What are some other considerations for ‘circumstances to provide reasonable assurance that the statement is reliable’?
- written/oral
- signed
- physical environment where statement was signed
When is a person unavailable to be a witness?
16(2)(a - e)
[DO UFC]
- dead
- outside NZ and not practicable for him/her to be a witness
- unfit due to age or mental capacity
- can’t be located
- not compellable to give evidence
What is 16(3) aimed to do?
To prevent a party from benefiting from rendering someone unavailable to testify eg. killing the maker of the statement
What is a business record?
A document that is made to comply with a duty or in course of a business or as a record or part of a record of that business.
eg. statement made to police or written down in his/her notebooks/jobsheets
Do you need to give notice of hearsay to have a hearsay statement admitted?
Yes:
- must portray an intention to offer hearsay
- name of statement maker
- if made orally, the contents of it
- reasonable assurances it’s reliable
- if it’s a business record
- why the person is unavailable as a witness
- what undue expense or delay would be caused
What is an opinion and is it admissible?
A statement of opinion that tends to prove or disprove a fact.
No except for s24 or s25
Why is there an exclusionary rule for opinion and what are the justifications?
To avoid unreliable, superfluous or misleading evidence.
- witness’s opinion holds little weight
- danger that the witness offering opinion will infringe the function of the tribunal of fact
- witness’s opinion may be based off other evidence that may be inadmissible
s24 - non expert opinion evidence
Witness may state an opinion if it enables the witness to communicate or the fact finder to understand what the witness has seen, heard or perceived
What sort of opinion evidence may a witness give under s24 (non expert opinion)
ID
Speed
Weather
Emotional state
Age
s25 - expert opinion evidence
- be from an expert
- comprise of expert evidence
- offer substantial help to the fact finer in understanding other evidence or ascertaining any fact in the proceeding
What makes up an expert in expert evidence and who determines that the person is qualified?
The judge makes up if the person is qualified in giving expert evidence. He/she may is deemed an expert if they have undergone formal study/training or experience or both
What is the common knowledge rule and ultimate issue rule in “obtain substantial help”
Common knowledge rule - expert can not give opinion on matters that are common knowledge of the jury
Ultimate issue rule - expert can not give an opinion on the ultimate issue in the case
Do facts need to be proved or come under judicial notice before an expert can give an opinion of it?
Yes otherwise the weight of the opinion will be valueless
What two other ways may expert opinions be based on?
1) Books and journals - for eg. a study done by a large number of scientists, the results will make up the knowledge.
2) Facts supplied by other - for eg. surgeon who has not seen the body may ask the nature of the wounds
What does ‘is or will be proved’ mean in 25(3) - expert opinion evidence
Means that the expert witness may either state the facts on which the opinion is based during evidence in chief or give the evidence on the basis that it will be proven
Can a person give a statement on their own state of mind for the expert witness?
Yes and it is admissible
How long must defence disclose that they wish to use an expert witness?
14 days - must provide a brief of evidence or report
