The Exclusive Rules of Evidence Flashcards
The exclusive rules of evidence deal with:
• Veracity • Propensity • Hearsay • Opinion • Identification • Improperly obtained evidence
Veracity Rules Legislation (1) Substantially helpful…
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.
Veracity Rules Legislation (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:
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.
The veracity and propensity rules do not apply to bail or sentencing hearings, except:
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).
Evidence of Defendant’s Veracity Legislation When can defendant/prosecution offer veracity evidence
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.
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:
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.
Propensity Rule Legislation What is propensity
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;
Propensity evidence does not include
• 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).
Evidence of Defendant’s Propensity Legislation When can defendant/prosecution offer propensity evidence
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.
Propensity Evidence Legislation When may prosecution offer propensity evidence (1) If the evidence has…..
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
