Module 10 - Evidence (III) (Feb 2015)

Question 1

What are the rules surrounding admissibility of a Defendants statement?

Answer 1

A “statement” is a spoken or written assertion of any matter, or non-verbal conduct that is intended as an assertion of any matter (s 4 of the Evidence Act 2006).

Evidence offered by the prosecution of a statement made by a defendant is not admissible against a co-defendant. Section 12A Evidence Act 2006 preserves certain common law exceptions to this inadmissibility (the “co-conspirators’ rule” and the use of a defendant’s out-of-court statement which has been accepted or adopted by the co-defendant). That provision is likely to be replaced in the near future, when an amendment bill is introduced putting into place changes from the Law Commission’s 2013 review of the Act.

Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under s 28, s 29 or s 30.

These sections are:
• the reliability rule (s 28)
• the oppression rule (s 29), and
• the improperly obtained evidence rule (s 30)

The Act does not refer to the common law concept of voluntariness. The body of previous law on that issue is no longer directly relevant.

Question 2

What is Section 28, Evidence Act 2006?

Answer 2

The reliability rule - Exclusion of unreliable statements

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—
(a) the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.
(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:
(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d) the nature of any threat, promise, or representation made to the defendant or any other person.

Section 28 covers much of the scope of the previous law (s 20 of the Evidence Act 1908), but the law has been substantially altered. “Reliability” relates to the accuracy and soundness of the statement – the focus of the courts appears to be on the circumstances and likely reliability, rather than an assessment of actual reliability. In R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762, the Court of Appeal said that, under s 28, “it is not the truth of the statement being assessed, but the impact of the surrounding circumstances on its reliability” and this has been confirmed in later decisions of the Court.

The issue of reliability of the statement may be raised by the defendant or a co-defendant, or by the judge. A co-defendant will only be able to raise the issue of reliability of another defendant’s statement under s 28(1) when the prosecution is offering the statement as evidence against the co-defendant in one of the classes of cases envisioned by s 12A – where the co-defendants were involved in joint criminal enterprises; or where the defendant’s statement is accepted by the co-defendant. In all other cases, s 27 renders one defendant’s statement inadmissible against the co-defendant.

This also applies to ss 29 and 30 (below). If reliability is raised by a defendant or co-defendant, he or she must identify an evidential foundation for the claim of unreliability.

Once a defendant or co-defendant has raised the issue of unreliability, the prosecution has to prove on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability (s 28(2)). If the prosecution fail to meet the standard of proof required in s 28(2), the statement will be inadmissible. In considering the test in s 28(2), the judge must take into account the issues listed in s 28(4)(a)-(d) where relevant.

The emphasis of the inquiry determining admissibility under the reliability rule is on the circumstances, not whether the statement is actually reliable.

Question 3

What is an exception to Section 28, Evidence Act 2006?

Answer 3

Section 28(2) will not have the effect of excluding a defendant’s statement in two circumstances:

− where the prosecution wishes to use the statement as evidence of the defendant’s “physical, mental, or psychological condition … at the time the statement was made”, for example where the prosecution attempt to prove that the defendant was suffering from psychosis and the statement describes to the police aliens said by the defendant to be present in the police station interview room.

− where the prosecution offers the defendant’s statement “only … as evidence of whether the statement was made”.

Question 4

What is the assessment of Reliability?

Answer 4

Section 28(4) sets out a list of factors which must be taken into account by a judge in deciding whether the prosecution has shown on the balance of probabilities “that the circumstances in which the statement was made were not likely to have adversely affected its reliability”. The assessment is not limited to the factors listed in s 28(4), but the listed factors must be taken into account insofar as they are “relevant to the case”.

Sec 28 (4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d) the nature of any threat, promise, or representation made to the defendant or any other person.

Question 5

What is Section 29, Evidence Act 2006?

Answer 5

Exclusion of statements influenced by oppression

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—
(a) the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:
(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d) the nature of any threat, promise, or representation made to the defendant or any other person.

(5) In this section, oppression means—
(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or (b) a threat of conduct or treatment of that kind.

The oppression rule has been described by the Court of Appeal as the most serious ground of objection to the admissibility of a defendant’s statement (R v Hawea [2009] NZCA 127 at [31]).

As with the reliability rule (s 28) and the improperly obtained evidence rule (s 30), the Crown only need to argue for the admissibility of a defendant’s statement under s 29 where the issue is raised by the defendant or a co-defendant against whom the evidence is offered, or by the judge. A co-defendant will only be able to raise the issue under s 29(1) where the prosecution is offering the statement as evidence against the co-defendant in one of the classes of cases under s 12A (see above). In all other cases, s 27(1) renders a defendant’s statement inadmissible against the co-defendant.

Once an evidential foundation is established to raise the issue of whether a defendant’s statement was influenced by oppression under s 29(1), s 29(2) requires the prosecution to satisfy the judge beyond reasonable doubt that the defendant’s statement was not influenced by oppression. Oppression is defined in s 29(5).

Once a judge determines that oppression was present, a finding of a breach of the oppression rule will usually follow. It is difficult for the prosecution to prove beyond reasonable doubt that there was no link between the oppression and the defendant’s statement, an allegation of oppression being “a strong card to play” (R v Handford HC Auckland CRI-2007-057-1922, 24 July 2008). Therefore, a good focus for prosecution argument is the denial that there was any oppression – this will in itself be difficult because the standard of proof under s 29(2) is “beyond reasonable doubt”, and therefore any doubt as to the existence of oppression will go in the defendant’s favour. Having said this, in practice the courts have proven reluctant to categorise intimidating or pressurising behaviour as “oppression”: see R v Hawea [2009] NZCA 127, where an abusive speech by an officer to the defendant, described as “intimidatory and belittling” by the Court, nonetheless did not trigger s29.

These difficulties are added to by the fact that s 29(3) provides that it is irrelevant whether the defendant’s statement is true. Therefore, if satisfied that the statement was influenced by oppression, the judge will have to exclude the statement under s 29(2) even where he or she is certain that the statement is true.

Oppression is to be judged from the perspective of the defendant. The state of mind of the alleged oppressor is irrelevant in the sense that he or she could be unaware that their behaviour is oppressive (in other words, there does not have to be calculated oppression). Furthermore, conduct or treatment by the oppressor is not objectively “oppressive, violent, inhuman, or degrading” (s 29(5)) may be deemed oppressive because of some quality of the defendant. This makes the task for the prosecution even more difficult, although where the conduct was not objectively oppressive, there would need to be evidence about why the defendant found it so.

Question 6

What is Section 30, Evidence Act 2006?

Answer 6

Section 30 - Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a) the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained—
(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or (c) unfairly.
(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

Section 30 only applies to evidence offered by the prosecution.

When the evidence in question is a statement by a defendant, s 30(1)(a) operates in the same way as ss 28(1)(a) and 29(1)(a).

Section 30(1) contains no requirement that the defendant can only apply for exclusion on the basis of a breach of his or her own right. The section applies whenever improperly obtained evidence is offered against the defendant who asks for its exclusion. However, a defendant has a stronger case for exclusion of evidence if he or she is asking for vindication of his or her own rights rather than those of someone else.

Once the issue is raised under s 30(1), the judge must determine, to the standard of balance of probabilities, whether or not the evidence was improperly obtained (s 30(2)(a)).

Question 7

What is the Definition of “improperly obtained evidence”?

Answer 7

Section 30(5) defines improperly obtained evidence. It is evidence obtained:

1. in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
2. in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
3. unfairly.

A causative link between the impropriety and the obtaining of the evidence is required for s 30(5)(a) and (b). Causation is also necessary to show that evidence was unfairly obtained under s 30(5)(c).

Mere “but for” causation is not sufficient. As Richardson J put it in R v Te Kira [1993] 3 NZLR 257, at p 272:

What is both necessary and sufficient is that there be a real and substantial connection between the violation and the obtaining of the evidence.

Causation is a difficult area and the dividing line between mere “but for” causation and a “real and substantial” connection is notoriously difficult to define. Generally the courts have tended to discuss it in terms of the “inconsequentiality” or “triviality” of the breach in the overall context of the case.

Where the discovery of physical evidence is concerned, the lack of causation argument will often be relatively easy for the Crown to make. On the other hand, in cases where confession evidence is concerned, the task is more difficult, since the court is in effect endeavouring to predict what a defendant, often in a highly stressful and abnormal situation, would have done if there has been no breach.

In addition to arguments based on “inconsequentiality” and the like, the courts have also developed the so-called “doctrine of inevitable discovery”. Although at first sight this seems to be a type of causal argument (the evidence would have been found anyway so the tainted confession which led the police to it didn’t really “cause” it to be found), in reality it isn’t. Rather it is a recognition that although the breach in the particular circumstances of the case led directly to the discovery of the evidence, the effects of the breach should be ignored because the evidence would have been discovered quite lawfully anyway.

Section 30(5) provides that evidence is improperly obtained if it is obtained
• “in consequence of a breach of any enactment”;

• “in consequence of a statement”. As Mahoney, McDonald, Optican and Tinsley state in Evidence Act 2006: Act and Analysis (2010) Brookers, Wellington, section 30(5)(b) focuses the situation where a suspected offender makes a statement to the police and that statement refers to other incriminating evidence such as a weapon (“real evidence”). The subsection ensures that if the pivotal statement is inadmissible, the real evidence comes within the definition of improperly obtained evidence. This is because the real evidence has been obtained “in consequence” of the statement (on “causative link” see above). It does not matter that the prosecution made no attempt to offer the statement itself in evidence;
• “unfairly”. Under s 30, a judge can decide that a defendant’s statement

had been obtained unfairly even though the prosecution could satisfy the tests for admissibility under s 28 (the reliability rule) or s 29 (the oppression rule). In addition, in Fan v R [2012] NZCA 114, the Court of Appeal held that the common law discretion to exclude evidence on the general ground of unfairness had survived the enactment of the Evidence Act 2006. If unfairness relates to the way the evidence was obtained, s 30 governs admissibility. If some other issue is argued to make admission unfair, the common law discretion (not s 30) will operate. However, the s 30 factors will be relevant to the exercise of the common law discretion.

Before the Act, the Judges’ Rules provided a prime focus for arguments that a defendant’s statement had been obtained unfairly. While some aspects of the Rules were largely replaced by the developing jurisprudence surrounding the Bill of Rights Act, they remained relevant to police actions prior to arrest and to the treatment of suspects in custody. A new version of the Judges’ Rules has now been incorporated into the Practice Note on Police Questioning, issued by the Chief Justice under s 30(6) of the Act:

“The courts will continue to apply judicially-developed guidelines for police questioning.

The former Judges’ Rules are (with some developments) restated here for the purposes of s 30(6) of the Evidence Act 2006. The obligation to advise that legal advice may be available without charge under the Police Detention Legal Assistance Scheme is new. As well the advice requirements under s 23 of the New Zealand Bill of Rights Act 1990 are brought into the required caution. Giving such advice prior to a suspect being arrested or detained does not obviate the necessity to repeat the advice upon arrest or detention. The practice note also favours the use of video recording of statements. In other aspects, the practice note is not intended to change existing case law on application of the Judges’ Rules in New Zealand and does not preclude further judicial development. The guidelines in this practice note supplement enactments relevant to police questioning and must be read consistently with those enactments. In particular they do not affect the rights and obligations under the New Zealand Bill of Rights Act 1990. The practice note takes effect on the commencement of section 30 of the Evidence Act 2006.

1. A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.
2. Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:
   (a) that the person has the right to refrain from making any statement and to remain silent
   (b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.
   (c) that anything said by the person will be recorded and may be given in evidence.
3. Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination.
4. Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained.
5. Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.”

Section 30(6) provides that a breach of the Practice Note on Police questioning must be taken into account by the judge, but this will not necessarily result in a finding of unfairness and inadmissibility.

When it is determined that a statement has been obtained unfairly, this means that the statement has been “improperly obtained” (s 30(5)(c)). The balancing process required by s 30(2)(b) must then be undertaken to determine admissibility. The general rule is one of exclusion if impropriety is found and the exclusion is proportionate to the impropriety – the assessment of proportionality is a contextual one.

Question 8

What is the “Balancing Process” in regards to improperly obtained evidence?

Answer 8

Once the judge has determined that the evidence was improperly obtained, he or she must perform a balancing process to determine the admissibility of evidence offered by the prosecution (s 30(2)(b). Section 30(3) provides guidance on the factors that may be considered in the balancing process. The factors in s 30(3) are a non-exhaustive list that the judge may take into account in the balancing process. They are a checklist for consideration, and not all of the factors will be relevant in all cases. The weight accorded to each factor may differ according to the facts of the case: Hamed v R [2011] NZSC 101 at [64] per Elias CJ.

The balancing process must give appropriate weight to the impropriety but also must take proper account of the “need for an effective and credible system of justice”. This serves as a reminder that the inquiry is a contextual one that takes into account the long term integrity of the criminal justice process.

Question 9

What is visual identification evidence?

Answer 9

Visual identification evidence is defined in the 2006 Act as

• an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
• an account (whether oral or in writing) of an assertion of the kind described above.

This is a fairly broad definition, potentially encompassing evidence where the person making the assertion is uncertain; and also covering identification evidence not only of a suspect but also of other persons or things, provided that seeing those other persons or things constituted an assertion that a defendant was present at or near the place in question (for example, identification of the defendant’s car). However, the provisions of s 45 apply only to identifications of persons alleged to have committed an offence, and so other forms of visual identification evidence will be governed by the general provisions of ss 7 and 8. The definition in s 4 does not cover resemblance evidence (evidence that a person shares features or attributes with the defendant, rather than direct identification: R v Turaki [2009] NZCA 310 at [58]); it does cover recognition evidence; and it will also cover some cases of observation evidence, where the defendant does not deny being at the scene but does deny acting in a particular way.

Question 10

What is Section 45, Evidence Act 2006?

Answer 10

45 Admissibility of visual identification evidence

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:
(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

Question 11

What is the effect of the rules for Visual identification evidence?

Answer 11

• Visual identification evidence obtained by way of a formal procedure followed by officers of an enforcement agency will be admissible in a criminal proceeding, unless the defendant proves on the balance of probabilities that it is unreliable.
• The requirements for a formal procedure are outlined in s 45(3), but the detail there is not comprehensive regarding the conduct of formal identification procedures. Some further detail is contained in the revised Police Instructions, as discussed below.
• If no formal procedure is followed, any visual identification evidence resulting from an informal procedure will be inadmissible unless there was a good reason for not following a formal procedure (as outlined in s 45(4)) or the prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made would have produced a reliable identification (s 45(2)).
• The identification procedure must be conducted by “officers of enforcement agency”, which includes some agencies other than the police.
• The provision applies only to visual identification evidence of a “person alleged to have committed an offence”. Identifications of other people will fall to be governed by the general principles in ss 6, 7 and 8.
• The combined effect of s 45(2) and (3) is intended to prevent dock identification — where the witness identifies the defendant in the courtroom for the first time. Under s 45(2), the prosecution is unlikely to be able to prove beyond reasonable doubt that a reliable identification can be made in such circumstances; and under s 45(3) dock identification does not fulfil the requirements of a formal procedure. However, if there was a good reason why a formal procedure was not followed under s 45(4), a dock identification could be admissible unless the defendant can prove under s 45(1) that the identification is unreliable. Given the approach of the courts to dock identification since the inception of the Act, it is likely that in most cases the defendant could reach the required standard and it will be rare for dock identification to be allowed in future.

The focus under the Act is on whether or not a formal procedure was

undertaken. This means that photographic and video identification may be used where the procedure adheres to the requirements under s 45(3). How the procedure is utilised is the key, not whether one “method” is better than another.

The focus on a formal procedure results in a major change to the pre-Act law in the introduction of a burden of proof on the defendant in s 45(1), should he or she wish to challenge the reliability of visual identification evidence gained from a formal procedure. The standard required is on the balance of probabilities. The focus of a defendant’s challenge to the reliability of the evidence can be both on the procedural reasons for asserting unreliability, and on those connected with the witness or the circumstances of the offence, such as short-sightedness, bad lighting etc. Other evidence in the case will also be relevant to this inquiry.

Section 45(2) provides that, where there has been no formal procedure followed (and there was no good reason for not doing so), visual identification evidence will be inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification. A procedure which adheres to most of the requirements under s 45(3) is more likely to discharge the burden than one which falls far short. The Court in R v Edmonds [2009] NZCA 303 at [101] stated that:

“[T]here are unlikely to be many instances where the identification is made after a fleeting glance of a stranger where the high standard of s 45(2) could be met by the Crown in the absence of at least some aspects of a formal procedure having been conducted”.

Under s 45(2), the courts will still be able to take into account all of the circumstances affecting reliability (e.g. witness factors such as eyesight and offence factors such as lighting), not just the conduct of the procedure. However, other evidence in the case cannot be taken into account under s 45(2).

Question 12

Why is there a Focus on Reliability for Visual evidence?

Answer 12

The focus on reliability of eyewitness evidence in s 45 is a reflection of the inherent potential for unreliability of both visual and voice identification: our memories are prone to incompleteness, distortion, and forgetfulness. However, psychological research suggests that jurors may believe eyewitnesses too readily, especially when they are confident or have been consistent, and that there is not great ability for us to distinguish accurate from inaccurate eyewitnesses. Traditional credibility cues may not work because the witness may genuinely believe that he or she is right, when in fact they are wrong. As identification evidence is inherently unreliable, care must be taken to elicit the most reliable evidence possible by means of fair and transparent procedures.

Question 13

What are Formal Procedure Requirements?

Answer 13

As admissibility may stand or fall on the issue of whether the evidence was gained through a formal identification procedure, it is important to know what constitutes a formal procedure. Section 45(3) sets out the requirements, all of which need to be met before the presumption for admissibility under s 45(1) is triggered. The procedure should take place during the investigation or soon after an arrest, as confirmed by the Supreme Court in Harney v Police [2011] NZSC 107. This may involve consideration of means and resources, but a lack of resources cannot be taken too far (Ah Soon v R [2012] NZCA 48 at [19]).

If one or more of the requirements are not met, admissibility will be governed under s 45(2). In line with the overall aim of s 45, the purpose of s 45(3) is to ensure that visual identification evidence is as reliable as possible.

Police Instructions contain more detailed provisions for identification parades (which are rarely used) than for photo montages (which are routinely conducted).

However, some of the detail can be applied to any formal procedure. The Police Instructions restate the key elements in s 45(3) and in addition provide that any identification parade should be conducted by a staff member at the level of sergeant or senior sergeant. The O/C Case can be present, but must not take part in the proceedings.

Seven people must be chosen who are of the same race, similar age, height, general appearance and social grouping as the suspect, and not police members. Different participants should be used where the witness will view more than one parade or montage. It has been held that the guiding principle in arranging a procedure is whether it will “avoid any material risk of predisposing the witness to identify the defendant” (Ah Soon v R [2012] NZCA 48 at [23]).

Suspects should be advised that he or she is entitled to refuse to take part in the parade and have a solicitor present.

Witnesses must not be allowed to see the suspect before he or she is placed in the parade or be asked any questions drawing their attention to any particular characteristic of the suspect. Witnesses should be told that the person they saw may or may not be present. If a witness indicates a person but cannot make a positive identification, or picks out someone other than the suspect, the O/C Parade must ensure that this is recorded.

A written and pictorial record should be made of the procedure.

Question 14

What are “Good reasons” for not following a formal procedure?

Answer 14

Section 45(4) outlines what circumstances constitute a good reason for not following a formal procedure. The list in s 45(4) is not exhaustive. However, the list should be added to very rarely, and only for generic situations rather than catering to the facts of a particular case (Taroro v R [2010] NZCA 287 at [79]). The list of good reasons comprises both those situations in which it is not practical to follow a formal procedure, and those where it is not necessary to do so. If the prosecution wants to avoid the burden imposed by s 45(2), it must try to establish a good reason for an informal procedure in any case where the requirements of s 45(3) are not fully met. If the prosecution can provide a good reason under s 45(4), the identification evidence will be admissible under s 45(1), and the onus will shift to the defendant to prove that the identification is unreliable. Whether or not there is a good reason under s 45(4) will therefore be a crucial issue in many cases.

Some of the “good reasons” involve some difficult issues:

(a) Subsection (4)(a): refusal to participate

Section 45(4)(a) recognises the right (also found in s 344B of the Crimes Act 1961) of the person to be identified to refuse to participate in an identification parade, and also recognises that the person to be identified has the right to refuse to permit a photograph or video record to be taken. Where a photograph or video already exists of the person to be identified, and it represents a true likeness of that person, refusal to participate will usually not constitute a good reason under s 45(4) because the existing photograph or video can be used in a formal procedure.

(b) Subsection (4)(b): singular in appearance

Section 45(4)(b) acknowledges that there will be cases where the person to be identified will be so singular in appearance that the requirement in s

45(3)(b) cannot be complied with. Evidence will be needed before the Court will allow this as a good reason for not following a formal procedure (R v F [2009] NZCA 520). The subsection provides that singular appearance will constitute a good reason for not following a formal procedure, where the appearance is “of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared”. Whether the other participants in the procedure will be able to be disguised in order to comply with s 45(3)(b) is unclear.

(c) Subsection (4)(c): change of appearance

Section 45(4)(c) is open to the same exploitation as that discussed in s 45(4)(a) (refusal to participate) in that defendants may think that it is preferable to change their appearance and challenge the reliability of identification gained from the informal procedure under s 45(1), than to be subject to a formal procedure and potentially have more difficulty in proving probable unreliability. However, live procedures will not be used in the majority of cases, and therefore s 45(4)(c) will only be relevant in those cases where there has been a delay between the offending and the arrest, when a photograph will be taken.

(d) Subsection (4)(d): no anticipation that identification would be an issue Section 45(4)(d) provides that a formal procedure need not be held where no officer “could reasonably anticipate that identification would be an issue at the trial of the defendant”. There is an objective element to this, as evidenced by the inclusion of “reasonably”. In practice, it is likely to be a rather difficult assessment for officers to undertake, particularly at an early stage in an investigation.

Recognition

The Law Commission suggested that cases where the person to be identified is well known to the witness will fall under s 45(4)(d), and this reflects the fact that in some recognition cases an identification procedure will be unnecessary. That recognition may make a formal procedure unnecessary was confirmed in R v Edmonds [2009] NZCA 303. This approach was approved by the Supreme Court in Harney v R [2011] NZSC 107 at [26]. Although recognition evidence was part of the reason for the inclusion of s 43(4)(d), the Court in Edmonds chose instead to create a new “good reason”. However, the Court in Harney v R [[2011] NZSC 107 at [27] and [28] clarified that:

“It does not follow, of course, that merely because identification evidence takes the form of recognition of a person known to the defendant, that factor will necessarily provide a good reason for dispensing with a formal procedure. It will not do so unless the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged offending that a formal procedure would be of no utility. Where a procedure would serve a “useful purpose” from the point of view of the defence, in that it may expose an element of unreliability in the identification, there will not be good reason in terms of s 45(1). The sufficiency of the familiarity of the witness with the defendant’s appearance and utility of a formal procedure need to be gauged in the individual case.”

(e) Subsection (4)(e): identifications made shortly after the offence Section 45(4)(e) recognises that identifications made shortly after the occurrence of the offence may make a further, formal, procedure unnecessary. For example, a witness may be able to point out the offender to a police officer arriving at the scene of the offence. The start point is the reporting, not the offending.

In defining the limits of s 45(4)(e) it is perhaps useful to consider its underlying reason, which is not only to avoid tainting of the evidence, but also to allow the police to take advantage of an identification made immediately after the event, when it is still fresh in the witness’s mind. For this reason, the time frame after reporting when s 45(4)(e) can be utilised should be carefully assessed in order to avoid erosion of the protections from wrongful conviction afforded by s 45.

The Law Commission had intended this good reason to apply to situations soon after the offence was committed. “Soon after the offence was reported” could cover situations where the offence is reported a significant time after the offending occurred (thereby undermining the justification for the provision). In its 2013 Review of the Evidence Act 2006, the Law Commission recommended that the wording in s 45(4)(e) is changed to “soon after the offence occurred”. This change has been approved by Government but not yet enacted.

The identification under s 45(4)(e) must be made in the course of the officer’s initial investigation, which signals that identifications made after other evidence gathering or where the police have a suspect in mind should not suffice.

(f) Subsection (4)(f): chance meetings

Section 45(4)(f) deems a formal procedure to be unnecessary where the witness identifies the alleged offender after a chance meeting. Clearly, a “chance” meeting that is in fact orchestrated — for example taking a witness to stand outside the suspect’s place of work until he or she leaves the building — will not constitute a good reason under s 45(4)(f), although the line between chance and organized meetings may sometimes be difficult to discern.

Question 15

What is Section 46, Evidence Act 2006?

Answer 15

Admissibility of voice identification evidence

Section 4 Evidence Act 2006 defines “voice identification evidence” as evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Section 46 Evidence Act 2006 governs the admission of voice identification evidence, and sets out a general rule of inadmissibility:

46 Admissibility of voice identification evidence

Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.

The burden of proof imposed on the prosecution under s 46 is proof of reliability on the balance of probabilities. Therefore, the prosecution only have to prove that the voice identification evidence is probably reliable. This is rather strange, given that despite the concern that voice identification is less reliable than visual identification, the standard under s 45(2) is proof beyond reasonable doubt, a significantly higher standard than under s 46.

Question 16

What must the Court tell Jurors in regards to ID evidence?

Answer 16

Weight to be given to ID evidence: Warning to the jury

Because identification evidence carries an inherent risk of unreliability, the courts warn juries about the dangers of relying on eyewitness evidence in all criminal cases where it is a substantial part of the evidence in a case. The warning is to be found in s126 Evidence Act 2006. Many of the case authorities developed under the previous law remain applicable.

The s 45 admissibility inquiry will apply only to identifications of the defendant. In those cases where there is identification of some other person, a s 126 warning will still be required, and the admissibility inquiry will be governed by s 8(1)(a) (probative value of the evidence outweighs prejudicial effect on the proceeding).

Where the case depends wholly or substantially on identification evidence the judge will assess the quality of the identification evidence and identify any evidence which is capable of supporting it. It is up to the jury to ultimately decide whether other evidence actually does support the evidence of identification. The “quality” of identification evidence is assessed by reference to such issues as the length of time the witness had to observe the person, the lighting, distance and any other surrounding circumstances. Quality may also be assessed by reference to the characteristics and circumstances of the witness: for example, where a witness is short-sighted and saw the offender from some distance away, the quality of the evidence will be weakened. Finally, the way in which the identification took place is also relevant to the assessment of quality.

Question 17

What is Section 126, Evidence Act 2006?

Answer 17

Warning about identification evidence

Section 126 provides that:

(1) In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
(2) The warning need not be in any particular words but must—
(a) warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b) alert the jury to the possibility that a mistaken witness may be convincing; and
(c) where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

Section 126 applies to both visual and voice identification. It does not require any particular form of words for the warning. Judges must warn the jury that mistaken identification can result in a “serious miscarriage of justice”.

A s 126 warning is required where the case depends “wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person”. This is restricted to direct, not circumstantial identifications, and to identification of human beings. Therefore, identification of animals or inanimate objects would not trigger the warning, although in some circumstances a warning similar to that in s 126 could be used. In judge alone trials, s 46A of the Act provides for a self-warning in cases that depend wholly or substantially on identification evidence.

Question 18

What is the general exclusionarry rule?

Answer 18

23 Opinion rule

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

Section 23 states the general exclusionary rule that opinions are not admissible to prove the truth of what is believed or inferred. A witness in a case is called to give evidence of what he or she has experienced, and the testimony must comprise direct evidence of his or her own perceptions of the facts. The general premise is that a witness’s opinions, beliefs or inferences are not their perceptions but are conclusions drawn from those perceptions.

The 2006 Act defines “opinion” as “a statement of opinion that tends to prove or disprove a fact” (s 4). The distinction between what is fact and what is opinion is sometimes unclear.

The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence. To admit such evidence would lead to a waste of court time and the admission of evidence with doubtful relevance. The justifications for the rule can be brought under the umbrella of this rationale, and can essentially be broken down into three main strands:

• Where a witness offers a bare opinion it holds little probative weight
• There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be that the evidence would confuse the tribunal of fact and prolong proceedings, and in the case of an expert witness may result in unquestioning acceptance of the opinion because of impressive qualifications and confident manner.
• 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.

Sections 24 and 25 are exceptions to the general exclusionary rule set out in s 23. It can be assumed that the intention is that a statement of opinion that is admissible under ss 24 or 25 should also satisfy any other rules under the Act that apply (for example, the propensity rules).

Question 19

What is Section 24, Evidence Act 2006?

Answer 19

Non-expert opinion evidence

Section 24 - General admissibility of opinions -
“A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.”

Section 24 replicates the common law approach to admissibility of non-expert opinion evidence, which has presented few problems in practice. There is no closed list of areas in which non-expert opinion is admissible, but it will include opinion evidence from a witness about topics such as identity, speed, emotional state, weather, age and so on.

In order to be admissible under s 24, the statement of opinion must fulfil two basic criteria. First, opinion must be the only way in which to effectively communicate the information to the finder of fact. Secondly, the witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.

In general, non-expert opinion evidence will be accepted where the perceptions and statements of fact of the witness are conclusions in themselves, or where there is a mixture of inference and fact that cannot be separated. The justification for this is that, given the difficulties in separating fact and opinion, and the artificiality in some circumstances of demanding that evidence be presented as statements of fact only, clear and useful evidence will be sacrificed where the exclusionary rule is strictly adhered to.

The more difficult it is to disentangle fact and inference in a witness’s testimony, the more likely it is that it will be admitted. For example, where a witness offers evidence that she identified the defendant as the offender in an identification parade, she is giving evidence of the fact that she chose the defendant from a parade of other people, but the belief that the defendant and the offender are one and the same is a mixture of fact and inference. The two are almost impossible to separate. Similarly, where a witness gives evidence about a car accident, he or she may be asked whether the car was speeding. The witness may use the sound of the car or other perceptions to give an opinion on whether the car was travelling at a fast speed: the perception and the opinion are closely bound together.

Whether the non-expert opinion should be admitted is determined on the particular facts of each case. Courts in New Zealand have never had any particular problem in admitting statements by witnesses that consist of inferences based on perceived facts.

Question 20

What is Section 25, Evidence Act 2006?

Answer 20

Admissibility of expert opinion evidence

Where a matter calls for special skill or expertise, only a witness who is an expert in the matter can give evidence. Even where an expert witness is called, the sphere of opinion evidence is limited to matters where the opinion is needed in order to illuminate the facts in the case. If facts can be stated without reference to an opinion, the expert is not allowed to express an opinion on the matter.

Section 25 governs the admissibility of expert opinion evidence:

Section 25 - Admissibility of expert opinion evidence -

(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 fact 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; or (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 proved 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).

Section 25 is concerned only with the admissibility of expert opinion evidence. Expert evidence may consist of fact, opinion, or a mixture of the two (s 4). Factual evidence from an expert will be governed only by the general rules in ss 7 and 8, and any other admissibility rules applicable in the individual case. If the evidence is opinion evidence, then in order to comply with s 25, the opinion must be that of an “expert”; it must comprise “expert evidence”; and it must offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.

Although the High Court Rules code of Conduct for Expert Witnesses does not apply in criminal cases, the Court of Appeal have indicated that the obligations of expert witnesses in the criminal arena are the same as in civil cases – notably that the witness must remain impartial: R v Hutton [2008] NZCA 126, paras 169-171.

This Court summarised the relevant principles in R v Carter (2005) 22 CRNZ 476 as follows:

“The following principles are uncontroversial and apply in all cases where expert evidence is called:

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

Those propositions reflect the truism that expert evidence must be based on reason as opposed to conclusions incapable of being tested in any meaningful manner. It is for that reason that underlying assumptions and reasons for opinions reached must be stated explicitly. ”

We consider it desirable that counsel refer expert witnesses in criminal cases to this statement of principles and that witnesses should state at the outset of their evidence that they understand and accept them.

Question 21

What is the definition of Expert in Court?

Answer 21

Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill based on training, study or experience”. The judge must determine whether the expert witness is properly qualified to testify: opinions given by non-experts on matters calling for expertise are inadmissible.

The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed “expert” in the field in question. Evidence offered by an expert should be within his or her area of expertise. The expert may be qualified through formal study and training, from experience, or both.

Experts must only testify within their area of expertise: those who have general expertise may not be able to give evidence on a specific area within that, if they have no direct expertise on point. It depends on the issue and the expertise.

Question 22

Why is expert opinion evidence given at Court?

Answer 22

“Likely to obtain substantial help”

Section 25(1) provides that expert opinion evidence will be admissible if the fact-finder is likely to obtain substantial help from the opinion in:

• Understanding other evidence or in
• Ascertaining any fact that is of consequence in the determination of the proceeding

“Substantial help” replaces the common knowledge and ultimate issue rules. The common knowledge rule stated that an expert could not give an opinion on matters that were within the common knowledge of the jury. The ultimate issue rule provided that an expert could not give an opinion on the ultimate issue in the case. These were the two defining common law rules relating to expert opinion evidence that are abolished in s 25(2).

The requirement of substantial helpfulness seeks to offer a “more rational test that assesses the reliability and value of the expert opinion on its merits”. It “necessitates consideration of an amalgam of relevance, reliability and probative value” (B v R [2011] NZCA 654 at [37]).

(a) Novel disciplines

The “substantial helpfulness” test under s 25(1) is also designed to assess reliability, leaving the judge to draw the fine and difficult balance between helpful information and uncertain or untested theories (so-called “junk science”). This approach places the judge in a gatekeeper role, giving him or her the burden of determining whether the reasoning and methodology underlying the expert testimony is scientifically valid. This can require the trial judge to distinguish not only between respectable and “junk” science, but more specifically between good and bad science, something which he or she may not be qualified to do.

(b) Ultimate issue and common knowledge rules no longer determinative Section 25(2) abolishes the common knowledge and ultimate issue rules. Expert evidence will not be inadmissible simply because it is about the ultimate issue or a matter of common knowledge. In other words, common knowledge and ultimate issue are no longer determinative of admissibility; substantial helpfulness is.

The ultimate issue rule traditionally prevented witnesses from giving their opinion on the point that the jury had to decide In practice, the ultimate issue rule was often ignored, or was circumvented by a play on words. Where an opinion intrudes on the ultimate issue, this can still be a factor in deciding whether to admit the evidence, it simply does not have to be the determinative factor any more.

The common knowledge rule excluded any expert opinion evidence that was within the common knowledge of the jury. The basis of the rule was that expert evidence was unnecessary when the jury could form its own conclusions without help. Although it was logical in theory, in practice it could be too rigid and could result in valuable evidence being excluded.

Before the Evidence Act 2006 was introduced, the courts in New Zealand had made it clear that in some circumstances expert evidence falling within common knowledge may still be helpful to the jury, and should be admitted. This was because research findings may be counter-intuitive, there may be a need to dispel commonly held myths, or it may be helpful to explain and supplement the ordinary knowledge in a given area( R v Decha-Iamsakun [1993] 1 NZLR 141).

In the majority of cases the use of a substantial helpfulness test is unlikely to result in a change in the admissibility inquiry from the use of the common knowledge rule, but where common knowledge is based, in part at least, on fallacy; or where the jury will not be able to fully comprehend the intricacies of the condition, expert witnesses could be of help in dispelling common myths about the condition in question, or in explaining the finer details.

Question 23

What is Evidence based on proven facts?

Answer 23

Opinion based on facts outside the general body of information will need to be proved or judicially noticed (s 128). In R v Turner[1975] QB 834 the Court said that:

Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant ones into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.

The factual basis of an expert opinion needs to be proven because without it the opinion can be given little weight. Indeed, where there is no factual basis proven, the evidence may carry so little weight that it will not be relevant. Where current knowledge does not allow an opinion based on proven facts, then the expert should indicate that he or she cannot express a view.

Where material is part of the general body of information on any given topic, such as books and journal articles, an expert witness is allowed to base his or her opinion partly on the research of others working in the area. To do otherwise would involve a costly and time-consuming parade of experts in court.

An expert opinion may also be based on facts that are supplied by others, such as analyses of body tissues carried out by colleagues or the research findings of other scientists. In this way, the facts upon which an expert witness bases his or her opinion may be assumed facts or facts of which they have no first-hand knowledge. For example, where there are marks on a body, a surgeon who has not seen the body may be asked whether, given the nature of the wounds, they could be self-inflicted. When giving evidence, an expert should state the assumed facts upon which the opinion is based, so that admissible evidence is offered of the facts themselves. If research findings were relayed directly to the court, rather than being used to support and explain the conclusions reached by the expert witness, they would be hearsay evidence and may be excluded under s 18.

Section 129 can act to allow published documents to be admitted as evidence where the Judge decides that they are reliable sources, without having to have recourse to the rules relating to opinion evidence. Where an expert has his or her evidence peer reviewed, this will be admissible provided that it meets the requirements of s18 Evidence Act 2006

Section 25(3) will not apply to opinions on theory or hypotheses that do not depend on a factual basis.

Question 24

What does Section 25(3) state in regards to Proven Facts and provisional admissibility?

Answer 24

Section 25(3) requires that the fact “is or will be proved”. This means that the expert witness may either state the facts upon which the opinion is based during evidence in chief, or give the evidence on the basis that it “will be” proven, i.e. that it is provisionally admissible (s 14 Evidence Act 2006). As it is a conditional process, admissibility in such cases will depend on whether the factual basis of the opinion is indeed proven. If the evidence proving the factual basis does not eventuate, or if it is insufficient to establish the admissibility of the expert opinion (in a jury trial there will be a direction to rely on the expert opinion only if it finds the factual basis proved), then the opinion will be disregarded.

Question 25

What does Section 25(4), Evidence Act 2006 state about Expert evidence about sanity?

Answer 25

Section 25(4) provides for the admissibility of a person’s statement about his or her state of mind in order to establish the factual basis for the expert’s opinion on the sanity of that person. Although s 25(5) states that s 25(3) is subject to s 25(4), there is nothing incompatible about the two subsections.

Section 25(4) limits its ambit to opinions based on statements made by the person whose sanity is in issue, thereby excluding from coverage statements by others, or statements pertaining to mental disorders falling short of legal insanity. Furthermore, the statements must be about the person’s state of mind, and so any statements informing the expert’s opinion made about other issues will not be covered by s 25(4).

Where the expert’s opinion is based on a statement satisfying s 25(4)(a), s 25(4)(b) provides that neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person whose sanity is in issue. This means that, if the person whose sanity is in issue does not testify, the hearsay rule will not prevent evidence being given of the statements made to the expert; and if the person does testify, then the previous consistent statements rule cannot operate to make statements within s 25(4) inadmissible by virtue of the fact that they are consistent with his or her testimony. If the statements are used for any purpose other than an expert opinion about the sanity of the person, the hearsay and previous consistent statements rules will apply, because the statements will not be being used “to establish the facts on which the expert’s opinion is based” under s 25(4)(a).

Question 26

What are notice requirements in Criminal Cases?

Answer 26

The Criminal Disclosure Act 2008 introduced an obligation on the defence to give notice of expert evidence in criminal proceedings. Section 23 provides that, if the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report (or a summary if no brief or report is yet available) at least 10 working days before the date fixed for the trial.