The Exclusive Rules of Evidence

Question 1

WHAT MAY THE JUDGE CONSIDER WHEN DECIDING IF EVIDENCE OF VERACITY IS HELPFUL?

Answer 1

• lack of veracity on the part of the person when under legal obligation to tell the truth
• person has been convicted of 1 or more offences that indicate propensity for dishonesty or lack of veracity
• any previous inconsistent statements made by the person
• bias on the part of the person
• a motive on the part of the person to be untruthful

Question 2

WHAT ARE THE EXCEPTIONS TO THE VERACITY AND PROPENSITY RULE THAT DO NOT APPLY TO BAIL OR SENTENCING HEARINGS?

Answer 2

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

Question 3

WHAT IS THE RATIONALE BEHIND THE HEARSAY RULE?

Answer 3

• where 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, and so on.
• the rule addresses the concern that 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. Eg. the game of “Chinese Whispers”

Question 4

DEFINE CIRCUMSTANCES UNDER SECTION 16(1)

Answer 4

circumstances, in relation to a statement by a person who is not a witness, include—

(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 5

WHEN IS A PERSON UNAVAILABLE AS A WITNESS?

Answer 5

Section 16 (2)

• dead
• outside NZ and not reasonable practicable
• unfit because of age or physical or mental condition
• cannot with reasonable diligence be identified or found
• not compellable to give evidence

Question 6

WHAT IS THE RATIONALE BEHIND THE OPINION RULE? (Section 23)

Answer 6

• where a witness offers a bare opinion it holds little probative weight
• a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible
• 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.

Question 7

WHAT ARE THE TWO CRITERIA FOR SECTION 24 TO BE ADMISSIBLE? (Opinion Evidence)

Answer 7

• 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 from something personally perceived.

Question 8

WHAT IS NEEDED IN ORDER TO COMPLY WITH SECTION 25 FOR OPINION LEAD EVIDENCE?

Answer 8

• 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 9

Veracity Rules - Section 37 Evidence Act 2006

Answer 9

• 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.

Question 10

Substantial helpfulness is not a sufficient test in what two instances?

Answer 10

• where the prosecution wish to offer evidence about a defendants veracity and
• where a defendant offers veracity evidence about a co offender

Question 11

What does propensity evidence include and NOT include?

Answer 11

Includes:

• propensity as to actions
• propensity as to state of mind

Doesnt include:

• evidence of act or omission that is an element of the offence
• evidence that is about veracity only

Question 12

Propensity evidence about defendant’s own self

Answer 12

Section 41 allows defendants to offer:

• evidence of disreputable conduct about him or herself
• neutral propensity

Question 13

Propensity evidence offered by prosecution

Answer 13

Section 43 state the prosecution may offer propensity evidence against the defendant if the evidence has a probative value and outweighs the risk it will have a prejudicial effect on the defendant.

Question 14

What does the Judge have to consider when assessing the prejudicial affect?

Answer 14

• whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
• whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 15

Requirements for admission of propensity evidence

Answer 15

The evidence must:

• constitute “propensity evidence”
• have a probative value “in relation to an issue in dispute”
• have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.