The Exclusive Rules of Evidence

Question 1

The Opinion Rule:

Non expert opinion evidence (pg 47):

Answer 1

In order to be admissible under s24, the statement of opinion must fulfill two basic criteria

• Opinion must be the only way in which to effectively communicate the information to the finder of the fact
• The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

Question 2

The Opinion Rule:

Admissibility of expert opinion evidence (pg 48)

Answer 2

Expert evidence may consist of fact, opinion or a mixture of the two (s4).

Question 3

The Opinion Rule:

Likely to obtain substantial help (pg 49)

Answer 3

S25(1) provides that expert opinion evidence will be admissible if the fact finder is likely to obtain substantial help from the opinion in:

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

Question 4

Veracity Definition continued (pg 30)

Answer 4

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

Evidence of a Defendants Veracity:

In order to be able to offer evidence of a defendants veracity (pg 32)

Answer 5

• 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 ir 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 ie 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 6

Evidence of a Defendants Veracity:

In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3)): (pg 32)

Answer 6

• 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

Question 7

Propensity (pg 33)

Answer 7

s40 - Propensity Rules

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
ii) the cause of actions in the proceeding in question

Question 8

Propensity evidence includes (s40(1)(a)) (pg 33)

Answer 8

• propensity as to actions

- propensity as to state of mind (eg a lack of inhibition, a love for violence)

Question 9

Propensity evidence does not include (s40(1)(b)) (pg 33)

Answer 9

• evidence of a 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

General rule (propensity) (pg 33)

Answer 10

The general position is that a party may offer propensity evidence about any person.

Question 11

Hearsay statement defined (pg 39)

Answer 11

Under the Act, a hearsay statement is defined as (s4):
A statement that
a) was made by a person other that a witness
b) is offered is evidence at the proceeding to prove the truth of its contents

Question 12

Non expert Opinion evidence.

In order to be admissible under s24, the statement of opinion must fulfill two basic criteria: (pg 47)

Answer 12

• 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 13

Expert evidence may consist of (pg 48)

Answer 13

Expert evidence may consist of fact, opinion or a mixture of the two (s4)

Question 14

Likely to obtain substantial help.

Section 25(1) provides that expert opinion evidence will be admissible if the fact finder is likely to obtain substantial help from the opinion in: (pg 49)

Answer 14

• understanding other evidence

- in ascertaining any fact that is of consequence in the determination of the proceeding

Question 15

The Court has discretion to include propensity evidence against a defendant if:

Answer 15

The probative value of the evidence outweighs its prejudicial effect

Question 16

Section 43 Propensity evidence offered by the prosecution about defendant
Rei v R requirements for propensity evidence under Section 43, the evidence must:

Answer 16

(a) Constitute propensity evidence that is evidence that tends to show a persons 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 Section 43(3); &
(c) Have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 17

Regarding the admissibility of propensity evidence:

Answer 17

Need not be convicted as a result of earlier wrong doing, termed, “prior acquittal evidence”. Also conduct subsequent to present offending is capable of being propensity evidence

Question 18

Notice requirement

Answer 18

Under Criminal Disclosure Act 2008, is an obligation on defence to give notice they are calling an expert witness. At least 14 days prior to fixed date for trial must disclose experts brief or report (or summary if no brief or report is available.

Question 19

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

Answer 19

The evidence relates directly or indirectly- to the sexual experience of the complaint with any person other than the defendant- the reputation of the complainant in sexual matters

Question 20

In order for opinion evidence to be ADMISSIBLE under s24, the statement of opinion must fulfil what criteria?

Answer 20

the opinion must be the ONLY WAY to effectively COMMUNICATE the information to the fact finderAndThe witness must be stating an opinion from something PERSONALLY PERCEIVED