The Exclusive Rules of Evidence

Question 1

Exclusive Rules of Evidence

Deals with:

Answer 1

• Veracity
• Propensity
• Hearsay
• Opinion
• Identification
• Improperly obtained evidence

Veracity:
The rules do not apply to evidence about a person’s veracity if the veracity is an element of the offence (e.g. perjury).

Veracity and Propensity do not apply to bail or sentencing hearings, except s44 (sexual experience and reputation).

Question 2

Veracity Rule

Section 37(1) Evidence Act 2006

Answer 2

(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.

Question 3

Veracity Rule

Section 37(2) Evidence Act 2006

Answer 3

(2) In a criminal proceeding, evidence about a defendant’s veracity must also comply with section 38 or 39.

Question 4

Veracity Rule

Section 37(3) Evidence Act 2006

Answer 4

(3) In deciding, for the purposes of subsection (1), 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:

(a) lack of veracity on the part of the person under legal obligation to tell the truth (e.g. 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 5

Veracity Rule

Section 37(4) Evidence Act 2006

Answer 5

(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 6

Veracity Rule

Section 37(5) Evidence Act 2006

Answer 6

(5) Veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 7

Veracity

Substantial Helpfulness

Answer 7

The substantial helpfulness test applies to both veracity evidence in evidence chief and that elicited through cross-examination.

R v K suggests someone’s reputation for veracity is potentially admissible under s37, but the substantial helpfulness will only be met in exceptional circumstances.

Substantial Helpfulness is not a sufficient test in two instances:

• Where the prosecution wish to offer evidence about a defendant’s veracity; and
• Where a defendant offers veracity evidence about a co-defendant.

Question 8

Evidence of defendant’s veracity

Section 38(1) Evidence Act 2006

Answer 8

(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.

Question 9

Evidence of defendant’s veracity

Section 38(2) Evidence Act 2006

Answer 9

(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 prosecutions to do so.

Question 10

Evidence of defendant’s veracity

Section 38(3) Evidence Act 2006

Answer 10

In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:

(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 11

Evidence of defendant’s veracity

Answer 11

In order to offer evidence of a defendant’s veracity:

• Prosecution must show the veracity is relevant.
• Defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue.
• The proposed evidence must meet the substantial helpfulness test.
• Prosecution must get evidence from the Judge to offer the evidence.

Question 12

Propensity Rule

40(1) Evidence Act 2006

Answer 12

(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 which the person is being tried; or
(ii) the cause of action in the proceeding in question.

Question 13

Propensity Rule

40(2) Evidence Act 2006

Answer 13

(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.

Question 14

Propensity Rule

40(3) Evidence Act 2006

Answer 14

(3) However, propensity evidence about -

(a) a defendant in a criminal proceeding may be offered only in accordance with section 41, 42, 43, which ever section is applicable; AND
(b) a complaint in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance to section 44.

Question 15

Propensity Rule

40(4) Evidence Act 2006

Answer 15

Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in sections 37 and, accordingly, this section does not apply to evidence of that kind.

Question 16

Propensity Evidence about defendants

41(1) Evidence Act 2006

Answer 16

(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.

Question 17

Propensity Evidence about defendants

41(2) Evidence Act 2006

Answer 17

(2) If a defendant offers propensity evidence about him or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about the defendant.

Question 18

Propensity Evidence about defendants

41(3) Evidence Act 2006

Answer 18

(3) Section 43 does not apply to propensity evidence offered by prosecution under subsection (2).

Question 19

Propensity Evidence Offered by Prosecution About Defendants

43(1) Evidence Act 2006

Answer 19

(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only 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 to the defendant.

“Offer evidence” includes evidence elicited in cross-examination.

Question 20

Propensity Evidence Offered by Prosecution About Defendants

43(2) Evidence Act 2006

Answer 20

When assessing the probative value of propensity evidence, the Judge MUST take into account the nature of the issue in dispute.

Question 21

Propensity Evidence Offered by Prosecution About Defendants

43(3) Evidence Act 2006

Answer 21

When assessing the probative value of propensity evidence, the Judge MAY consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances (AOEC) which are the subject of the evidence have occurred:
(b) the connection in time between the (AOEC) which are the subject of the evidence and the (AOEC) which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the (AOEC) which are the subject or the evidence and and the (AOEC) which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be result of collusion or suggestibility:
(f) the extent to which the (AOEC) which are subject of the evidence and the (AOEC) which constitute the offence for which the defendant is being tried for are unusual.

Question 22

Propensity Evidence Offered by Prosecution About Defendants

43(4) Evidence Act 2006

Answer 22

When assessing the prejudicial effect of evidence on the defendant, the Judge MUST consider, among any other matters, -

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

Question 23

Propensity Evidence Offered by Prosecution About Defendants

Requirement for Admission

Answer 23

Rei v R

(a) Constitute “Propensity Evidence”
(b) Have probative value “in relation to an issue in dispute” and other matters may be relevant including s43(3)
(c) Have a probative value that outweighs the risk that the evidence may have an unfair prejudicial effect on the defendant.

Propensity evidence is also known as “similar fact evidence”.

The onus is on the Prosecution to satisfy the court that the probative value outweigh the risk the evidence may have an unfairly prejudicial effect on the defendant.

Question 24

Hearsay Statement Defined

Answer 24

Section 4 Evidence Act 2006

A hearsay statement is defined as:
“a statement that -

(a) was made by a person other than the witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents.

Question 25

Unintended Assertions

Answer 25

Unintended Assertions are not statements and so are not hearsay statements.

Question 26

Hearsay Rule

Section 17(1) Evidence Act 2006

Answer 26

17(1) A hearsay statement is not admissible except -

(a) as provided by this subpart or by the provisions of any other act; or
(b) in cases where -
(i) this Act provides that this subpart does not apply; and
(ii) the hearsay statement is relevant and not otherwise inadmissible under this act.

Question 27

General Admissibility of Hearsay

Section 18 Evidence Act 2006

Answer 27

General Admissibility of Hearsay

(1) A hearsay statement is admissible in any proceeding if -

(a) “circumstances” relating to the statement provide reasonable assurance that the statement is reliable; AND
(b) either -
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

(2) This section is subject to section 20 and 22.

Question 28

General Admissibility of Hearsay

Reliability of

Answer 28

The rationale of the rule against hearsay evidence lies in the lack of reliability of hearsay evidence:

• Maker of statement not called as witness, can’t cross-examine them regarding content and circumstances of statement.
• Concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person making the statement.
• Danger misinterpretation and inaccuracies of content or statement made by other people received by the witness. The game of Chinese Whispers.

Question 29

Circumstances

Section 16(1) Evidence Act 2006

Answer 29

Definition of Circumstances:

(1) 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 30

Unavailability as a Witness

Section 16(2) Evidence Act 2006

Answer 30

Defines what is meant by “Unavailable as a Witness”

(2) For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person -

(a) is dead; or
(b) is outside of NZ and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit due to age, physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.

Question 31

Unavailability as a Witness

Section 16(3) Evidence Act 2006

Answer 31

(3) Aimed at preventing a party from benefiting from rendering someone unavailable to testify.

Question 32

Admissibility of hearsay statements contained in business records

Section 19 Evidence Act 2006

Answer 32

(1) A hearsay statement contained in a business record is admissible if -
(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 that person to be a witness as that person cannot be reasonably 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.
(2) This section is subject to sections 20 and 22.

Question 33

Opinion Rule

Section 23 Evidence Act 2006

Answer 33

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

Opinon: “a statement of opinion that tends to prove or disprove a fact”.

Question 34

Opinion Rule

Section 23 Evidence Act 2006

The general exclusionary rule

Answer 34

The rationale of exclusionary rule is to prevent the admission of unreliable, superfluous or misleading evidence.

Justifications for the rule include that:

• where a witness offers bare opinion it holds little probative weight
• there is a danger that a witness offering opinion evidence will confuse the tribunal of fact and prolong the proceedings
• a witness’s evidence of opinion is based on another evidence which, if stated expressly, would be inadmissible. e.g. opinion based on propensity evidence.

Question 35

Non-expert opinion

Section 24 Evidence Act 2006

Answer 35

General admissibility of opinions

A witness may state opinion evidence in a proceeding if that opinion is necessary to enable the witness communicate, or the fact finder to understand, what the witness saw, heard, or otherwise perceived.

Topics: identity, speed, emotional state, weather, age etc.

Admissibility:

• effective communication to the fact finder
• witness must state something personally perceived.

Question 36

Expert Opinion

Section 25 Evidence Act 2006

Answer 36

Admissibility of Expert Opinion

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any facts that is of consequence to the determination of the proceeding.

(2) An opinion by an expert is not inadmissible simply because it is about -
(a) an ultimate issue to be determined in a proceeding
(b) a matter of common knowledge.

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact finder only if that fact is or will be proven or judicially noticed in the proceeding.

(4) If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person’s state of mind, then -
(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.

(5) Subsection (3) is subject to subsection (4).

Question 37

Qualification as an Expert

Answer 37

The expert is required to demonstrate that they have the requisite qualification to be deemed “expert”; the expert may be qualified through formal study and training, from experience, or both.

A person with specialised knowledge & skill based on training, study or experience.

Question 38

The Conduct of Experts

Answer 38

Expert witnesses should be impartial in their assistance to the court.

• An expert must state his or her qualifications when giving evidence
• the facts, matters and assumptions on which opinions are expressed must be stated explicitly
• the reasons for opinions given must be stated explicitly
• any literature or other material used or relied on to support opinion must be referred to by the expert
• the expert must not give opinion evidence outside his or her area of expertise
• if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
• an expert has an overriding duty to assist the court impartially on relevant matters within the expert’s area of expertise, and
• an expert is not an advocate for any party.

Question 39

Summary

Answer 39

Character Evidence: veracity and propensity.

Two criteria for admissibility of hearsay: reliability and unavailability or (undue expense or delay)

Criminal proceedings: notice of hearsay must be served on the other party so that each party has sufficient time, prior to the proceeding, to respond to the statement.