Elements of Evidence

Question 1

Objectives of the Evidence act 2006

Answer 1

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the 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

Fact that prove the charge

Answer 2

Good evidence establishes what you are trying to prove (in light of the other purposes in s6). The facts must prove the elements of the charge, and the evidence should be made up of facts that prove that charge. In each case, the actual charge and the elements of it should be borne in mind when deciding what evidence is relevant and what evidence will help prove the guilt of the person charged.

Question 3

Facts in issue

Answer 3

The facts in issue are the facts which in law need to be proven to succeed with the case. In criminal cases, the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.

Question 4

Circumstantial evidence

Answer 4

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof of a fact in issue. As more circumstances lead to the 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 5

Judicial notice legislation in regard to uncontroverted facts and published documents

Answer 5

128 Notice of uncontroverted facts

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that 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 proceedings involve a jury, may direct the jury in relation to this matter.

129 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 sources of information 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 6

What are facts formally admitted

Answer 6

In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed. Sections 9(2) and 9(3) of the Evidence Act 2006 provide that the defendant or the prosecution may admit any fact, and therefore dispense with proof of that fact.

Question 7

Presumptions of law

Answer 7

Presumptions of law are inferences that have been expressly drawn by law from particular facts.
Presumptions of law may be either conclusive or rebuttable.

Question 8

Presumptions of fact

Answer 8

Presumptions of fact are those that the mind naturally and logically draws from the given facts. For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.

Presumptions of fact are simply logical inferences, and so are always rebuttable.

Question 9

Determining admissibility of evidence

Answer 9

Evidence is admissible if it can be legally received by a court. If evidence cannot be received, it is inadmissible. No particular standard of proof attaches to decisions as to admissibility of evidence unless a particular provision of the Evidence Act 2006 provides for it (for example s45 of the Evidence Act relating to the admissibility of identification evidence). The judge decides on admissibility.

Question 10

How do you decide what is admissable

Answer 10

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the Evidence Act 2006:
• relevance
• reliability
• unfairness

Question 11

Admissibility relevance legislation

Answer 11

7 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 12

Reliability of evidence

Answer 12

Although unreliability is not a general ground of inadmissibility, the Act contains specific exceptions to this. Therefore, relevant evidence may sometimes be excluded - or if admitted may attract a judicial warning because it is regarded as unreliable (s122 is the primary section dealing with this). The Act contains some exclusionary rules that look to reliability, including rules relating to hearsay and identification evidence. For this reason, it is important to ensure that evidence obtained is reliable.

Question 13

Fairness, and the general exclusion under s8 Evidence Act 2006

Answer 13

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 the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

Question 14

General exclusion provision (section 8)

Answer 14

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 the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may well lead to its exclusion under the fairness discretion.

Question 15

Section 8 test

Answer 15

The s8 test involves balancing the probative value of evidence against the risk that it will:
• have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or
• “needlessly prolong the proceeding” (s8(1)(b)).

Question 16

Evidence that would have an unfairly prejudicial effect on the proceeding meaning

Answer 16

Evidence will be admitted under s8 if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding, or if it is strong enough to justify a prolonging of the proceeding.

The risk of “unfair prejudice” will typically refer to the danger that a trier of fact will give some piece of evidence more weight than it deserves, be misled by evidence, or use evidence for an illegitimate purpose.

Question 17

Evidence that would needlessly prolong the proceeding meaning

Answer 17

Section 8(1)(b) excludes evidence that will needlessly prolong the proceedings (for example where a defendant wishes to call 20 witnesses to give evidence as to his or her veracity, section 8(1)(b) could be used by the judge to limit the evidence to one or two witnesses).

Question 18

Take into account the right of the defendant to offer an effective defence

Answer 18

The assessment under s8(1)(a) “must take into account the right of the defendant to offer an effective defence” (s8(2)). This reflects s25(e) (the right of criminal defendants to present a defence) and s25(a) (the right to a fair trial) of the New Zealand Bill of Rights Act 1990.

Question 19

Provisional admissibility and evidence on ‘hearing in chambers’

Answer 19

Section 14 of the Evidence Act 2006 provides that, 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.

Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a ‘hearing in chambers’, or ‘chambers hearing’, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a hearing in chambers are sometimes referred to as ‘preliminary facts’, or ‘preliminary hearing’.