The Exclusive Rules of Evidence

Question 1

In determining whether veracity evidence is “substantially helpful”, the Judge may consider what?

Answer 1

(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 2

When do the veracity and propensity rules not apply?

Answer 2

The veracity and propensity rules do not apply to bail or sentencing hearings except when the evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant or their reputation in sexual matters.

Question 3

What do the exclusive rules of evidence deal with?

Answer 3

• veracity
• propensity
• hearsay
• opinion
• identification
• improperly obtained evidence

Question 4

When can the prosecution offer veracity evidence about a defendant in a proceeding?

Answer 4

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 5

What matters will the Judge take into account before permitting the prosecution to offer veracity evidence on a defendant?

Answer 5

(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 6

When can propensity evidence be included against a defendant?

Answer 6

When the evidence have a probative value which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 7

What are the reasons that hearsay evidence is generally excluded?

Answer 7

• when 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.
• 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.

Question 8

Define circumstances in relation to a statement by a person who is not a witness.

Answer 8

• the nature of the statement; and
• the contents of the statement; and
• the circumstances that relate to the making of the statement; and
• any circumstances that relate to the veracity of the person; and
• any circumstances that relate to the accuracy of the observation of the person

Question 9

When is a person considered unavailable as a witness?

Answer 9

• they are dead
• they are outside NZ and it is not reasonably practicable for him or her to be a witness
• they are unfit to be a witness because of age, physical or mental condition
• they cannot with reasonable diligence be identified or found
• they are not compellable to give evidence.

Question 10

Define business record

Answer 10

a business record means a document that is made:
• to comply with a duty (or in the course of) of a business, and is a record or part of a record of that business,
• from information supplied by a person who had personal knowledge of the matters dealt with in the information supplied (or was reasonably expected to)

Question 11

When can a witness state an opinion in a proceeding?

Answer 11

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 12

In order to comply with s25 Evidence Act 2006 - opinion evidence must be what?

Answer 12

• 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 13

Define an expert

Answer 13

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

Question 14

What is an expert required to demonstrate to the Court?

Answer 14

• that he or she has the requisite qualification to be deemed “expert” in the field in question
• they may be qualified through formal study and training, from experience or both
• evidence offered by an expert must be within his or he area or expertise.

Question 15

Two criteria for opinion evidence to be admissible.

Answer 15

• 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 16

What is the expert required to demonstrate?

Answer 16

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 17

Define propensity evidence and what it is does not include as outlined in s40 Evidence Act 2006?

Answer 17

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
Does not include evidence of an act or omission 1 of the elements of the offence for which the person is being tried or the cause of action in the proceeding in question.

Question 18

What is the rationale behind the general exclusion of opinion evidence?

Answer 18

• Where a witness offers a bare opinion it holds little probative weight
• There is a danger that a witness offering opinion evidence will take over the function of the tribunal of fact. It could confuse the tribunal and prolong proceedings.
• A witness’s evidence of opinion may be based on other evidence which, if stated, expressly, would be inadmissible (e.g. Based largely on propensity)

Question 19

In order for non-expert evidence to be admissible under s24 Evidence Act 2006, the statement must fulfil two criteria:

Answer 19

• The opinion must be the only way in which to effectively communicate the information to the fact finder
• The witness must be stating an opinion from something personally perceived