The exclusive rules of evidence

Question 1

What was held in R v GWAZE?

Answer 1

Rules of admissibility are rules of law - they are not matters of discretion.

Question 2

What 6 things do the exclusive rules of evidence deal with:

Answer 2

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

Most laws of evidence concern things that CANNOT be given in evidence.

Question 3

When do the veracity and propensity rules NOT apply?

Answer 3

bail or sentencing hearings, except where sec44 EA2006 applies.

AND 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 4

Sec 37(1), EA 2006: Veracity rules

Answer 4

(1) No evidence can be offered about a persons veracity unless it is substantially helpful in assessing that persons veracity.

Question 5

What may a judge take into consideration to decide if evidence is substantially helpful in determining a persons veracity?

Sec 37(3), EA 2006

Answer 5

a) lack of veracity of the person when under legal obligation (i.e in an earlier proceeding or signed statement)
b) convictions that indicate the persons propensity for dishonesty or lack of veracity
c) any previous inconsistent statements made by the person
d) bias of the person
e) a persons motive to be untruthful

Question 6

Under sec37(4), what can and cant a person who calls a witness do?

Answer 6

(4)
(a) May not challenge the witnesses veracity unless the judge determines the witness to be hostile

(b) May offer evidence to the facts in issue contrary to the evidence given by the witness.

Question 7

When can defendant/prosecution offer veracity evidence

Answer 7

Sec 38,

1) defendant can offer evidecne about his veracity

2) Prosecution can only offer evidence about defendants veracity if
a) the defendant offered evidence about his veracity or challenged a witnesses veracity regarding matters not in facts in issue AND
b) Judge allows it

Question 8

What must judge consider when deciding to permit veracity evidence under Sec 38(2)(b)?

Answer 8

Sec 38 (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 9

What is propensity evidence? Sec 40 EA2006

Answer 9

S40 Evidence Act 2006

(1) In this section and sections 41 to 43, propensity evidence—
(a) 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 a person is alleged to have been involved;

Question 10

What does propensity evidence not include? Sec 40(1)(b)

Answer 10

Sec 40(1)(b) does not include:

i) evidence of an act or omission that is one of the elements of the offence for which the person is being tried
ii) evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37).

Question 11

When can propensity evidence be offered?

Act / section

Answer 11

Sec 41
1) Defendant can offer propensity evidence about himself

2) If defendant offers propensity evidence, then prosecution can offer propensity evidence against defendant with permission of judge
3) sec 43 does not apply to propensity evidence given by prosecution under sec 41 (2).

Question 12

when can prosecution offer propensity evidence?

Act / section

Answer 12

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 13

What may judge consider when considering probative value of propensity evidence?

Sec 43(3)

Answer 13

Sec 43 EA 2006

(3) In relation to acts, omissions, events or circumstances that are the subject of the propensity evidence:

• The frequency they have occurred
• The connection in time between them and those which constitute the offence
• The extent of the similarity between them and those which constitute the offence
• The extent to which them and those which constitute the offence are unusual
• The number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence
• Whether those allegations are the result of collusion or suggestibility

Question 14

What requirement must be met for the admission of propensity evidence, as laid out in REI V R?

Answer 14

• Must be propensity evidence
• Have probative value to ‘issues in dispute’
• The probative value must outweigh the risk of it being unfairly prejudicial.

Question 15

When is a hearsay statement admissible

Answer 15

Sec 18 (1) Hearsay is admissible if:

(a) - There is reasonable assurance the statement is reliable and either -

(b) (i) The maker of the statement is unavailable or,
(ii) There would be undue expense or delay if the person was required to be a witness

Question 16

What is the rationale behind the rule against hearsay?

Answer 16

• Cross-examine - there is no opportunity to Cross-examine the maker of the statement regarding its contents, the circumstances in which it was made, and so on.
• Demeanour - juries cannot evaluate evidence properly without being able to see the Demeanour of the person who made the statement.
• 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 17

What circumstances should the court consider in determining if a hearsay statement is reliable

Sec 16 (1)

Answer 17

Sec 16 (1), EA 2006

(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 18

When is a person ‘unavailable’ as a witness?

Answer 18

Sec 16 (2)

Unavailable if they are:

(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 19

What is a business record under sec 19 (1), EA 2006?

Answer 19

A document that is made:

• 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.

This includes a statement made to a cop and written down in his notebook or jobsheet.

Question 20

When is a business record admissible as a hearsay statement?

Sec 19 (1) EA2006

Answer 20

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 21

Notice of hearsay in criminal proceedings:

No hearsay statement can be offered unless what?

Sec 22 (1) EA 2006

Answer 21

a) Party wishing to offer hearsay has complied with requirements of sections 2, 3 and 4 OR
b) the other parties have waived those requirements OR
c) The judge dispenses with the requirements

Question 22

Notice of hearsay in criminal proceedings:

Party wishing to offer hearsay evidence must give written notice saying what?

Sec 22 (2) and (3) EA 2006

Answer 22

a) Intention to offer hearsay statement AND
b) The name of the maker of statement AND
c) if statement made orally, the contents of the statement AND
d) If 18(1)(a) relied on, the circumstances that provide assurance the statement is reliable AND
e) If sec 19 relied on, why the document is a business record AND
f) if sec 18(1)(b)(i) or sec 19 (1)(a) is relied on, why the person is unavailable as a witness
g) If sec 18(1)(b)(ii) or 19(1)(c) is relied on, why there would be undue delay or expense.
(3) if hearsay statement made in writing, a copy of the document must be provided with the notice.

Question 23

Admissibility of Opinion - the opinion rule

Sec 23

Answer 23

S23 Evidence Act 2006

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

Question 24

Rationale behind the rule against opinion evidence

What are the Justifications for the rule:

Answer 24

• 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 25

What is the general admissibility of opinion evidence, and examples of some admissible opinion evidence?

Sec 24

Answer 25

S24 Evidence Act 06

A witness may state an opinion in evidence if it is necessary for the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Examples:

• identity
• speed
• weather
• emotional state
• age

Question 26

Definition of an ‘expert’, Sec 4 EA 2006

Answer 26

S4 Evidence Act 2006

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

Question 27

To comply with sec 25, what must the opinion evidence be?

Sec 25 EA 2006

Answer 27

• be that of an expert, and
• Comprise expert evidence, and
• Offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact.

Question 28

Conduct of expert witnesses -

An expert witness must…

Answer 28

Qualifications
• state their qualifications
• Not give opinion evidence outside their area of expertise
• If their evidence might be incomplete or inaccurate without some qualification, that qualification must be stated

Stated Explicitly
• The facts, matters and assumptions forming their opinions must be stated explicitly
• The reasons for opinions must be stated explicitly

Other Dutys
• overriding duty to assist the Court impartially on matters within their 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 29

Notice requirement by defence calling expert witnesses

Answer 29

Criminal Disclosure Act 2008 requires that defence disclose brief of evidence for any experts they intent to call at least 14 days before date of trial.