Elements of Evidence

Question 1

Purpose of Evidence Law

Answer 1

Section 6 Evidence Act 2006

Purpose:

The purpose of this act is to “help secure the just determination of proceedings” by:

(a) providing for facts to be established by application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.

Question 2

What makes Good Evidence

Answer 2

Facts that prove the Charge:

Good evidence establishes what you are trying to prove. The facts must prove the elements of the charge, and the evidence should be made of of facts that prove that charge. In each case, the actual charge and the elements of it should be borne in mid when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 3

Circumstantial Evidence

Answer 3

As more circumstantial evidence lead to inference, the chain of circumstantial evidence becomes stronger, to the point where the pieces of circumstantial evidence, viewed as a whole, are sufficient to prove guilt.

Question 4

Establishing Facts, Exceptions and Presumptions

General Rule of Evidence

Answer 4

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence.

Question 5

Establishing Facts, Exceptions and Presumptions

General Rule of Evidence - Exceptions

Answer 5

Two main exceptions to the general rule are when no evidence needs to be given of facts because:

• Judicial notice is taken
• The Facts are formally admitted.

Question 6

Establishing Facts, Exceptions and Presumptions

Judicial notice

Answer 6

When a court takes Judicial Notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

E.g. Date of Christmas Day. No need to call expert witness on establishing Christmas Day is celebrated on 25th December.

Question 7

Establishing Facts, Exceptions and Presumptions

Judicial notice

s128 Evidence Act 2006

Answer 7

Notice of uncontroverted facts:

(1) A Judge or jury may take notice of facts so known and accepted either generally or in a locality in which the proceeding, they cannot reasonably be questioned.
(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources, whose accuracy cannot reasonably be questioned and, if the proceeding involve a jury, may direct the jury in relation to this matter.

Question 8

Establishing Facts, Exceptions and Presumptions

Judicial notice

s129 Evidence Act 2006

Answer 8

Admission of reliable published documents:

(1) A Judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable on the subjects to which they respectively relate.
(2) Subpart (1) of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).

Question 9

Establishing Facts, Exceptions and Presumptions

Facts Formally Admitted

Answer 9

In a trial, the counsel for either party can accept that some evidence is accepted or proven at outset, so it need not be discussed.

Question 10

Establishing Facts, Exceptions and Presumptions

Presumptions

Answer 10

Where no direct evidence is offered or is obtainable, disputed facts are sometimes inferred from other known or proved facts. In such cases, the inference is called presumption.

Presumption may of law or of fact.

Question 11

Establishing Facts, Exceptions and Presumptions

Presumptions of Law

Answer 11

Presumption of law are inferences that have been drawn by law for particular facts.

Presumption of law ,may be either conclusive or rebuttable.

Conclusive: <10 years unable to be convicted.
Rebuttal: Presumption of innocence.

Question 12

Establishing Facts, Exceptions and Presumptions

Presumptions of Fact

Answer 12

Presumption of fact are those that the mind naturally or logically draws from the given facts. e.g. one presumes that a person is guilty knowledge if they have possession of recently stolen goods.

Presumption of facts are simply logical inferences, and so are always rebuttable.

Question 13

Admissibility and the Principle of Evidence Law

Determining Admissibility

Answer 13

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law:

• Relevance
• Reliability
• Unfairness
• Public Interest

Question 14

Admissibility and the Principle of Evidence Law

Determining Admissibility

Relevance

Answer 14

Section 7 Evidence Act 2006

Fundamental principle that relevant evidence admissible:

(1) All relevant evidence is admissible in a proceeding except evidence that is -
(a) inadmissible under this act or any other act; or
(b) excluded under this act or any other act.

(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 15

Admissibility and the Principle of Evidence Law

Reliability

Answer 15

Although unreliability is not a general ground of inadmissibility. It is important to ensure evidence is reliable as relevant evidence may sometimes be excluded.

Question 16

Admissibility and the Principle of Evidence Law

Fairness and General Exclusion

Answer 16

Even though evidence is relevant, it may be excluded if it would result in unfairness. Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:

• Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
• Evidence not prejudicial in itself in terms of actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. e.g. unfair confession.

Question 17

Admissibility and the Principle of Evidence Law

General Exclusion Provision

Answer 17

Section 8 Evidence Act 2006

It is first type of unfairness the general exclusion provision in s8 is directed:

8 General Exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value (evidence which is sufficiently useful to prove something important in a trial) is outweighed by the risk that the evidence will -
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

Question 18

Admissibility and the Principle of Evidence Law

General Exclusion Provision

Evidence of Unfair Prejudicial Effect

Answer 18

8(1)(a) Evidence Act 2006

• Evidence given more weight than it deserves
• Evidence used for an illegitimate purpose
• Evidence that is unfair
• Evidence drawing jury members away from the real issues in trial.

Question 19

Admissibility and the Principle of Evidence Law

General Exclusion Provision

Evidence needlessly prolonging the proceeding

Answer 19

8(1)(b) Evidence Act 2006

E.g. defendant wishing to call 20 witnesses to evidence evidence as to his or her veracity. Be limited to one or two witnesses.

Question 20

Admissibility and the Principle of Evidence Law

Admission by Agreement

Answer 20

R v Hannigan

Evidence that is not admissible made admissible if all parties agree to the admission. However, the Judge retains control of the process and may decline the admission.

Question 21

Admissibility and the Principle of Evidence Law

Provisional Admissibility

Answer 21

Section 14 Evidence Act 2006

Where a question arises concerning the admissibility of any evidence, the Judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.

If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.

Question 22

Admissibility and the Principle of Evidence Law

Voir Dire

Answer 22

Section 15 Evidence Act 2006

Evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such hearing is commonly referred to as a “Voir Dire”, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a Voir Dire sometimes referred to as “preliminary facts”.

Evidence given at a Voir Dire will be admissible in other stages of the proceeding only if the evidence given by the witness at the Voir Dire is inconsistent with the witness’s subsequent testimony at another stage of the same proceeding. Ito s admissible in order to demonstrate the inconsistency.

Question 23

Admissibility and the Principle of Evidence Law

Limited Use of Evidence and Use for Multiple Purposes

Answer 23

Hart v R

“The statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

This general rule is subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such as:

• s27, which controls the use of pre-trial statements of defendants and co-defendants
• s31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case
• s32, which forbids the fact finder from using a criminal defendant’s pre-trial silence as evidence of guilt.