8. Evidence

Question 1

What is the fundamental principle in criminal law?

Answer 1

The presumption of innocence.

Question 2

what is the presumption of innocence also known as?

Answer 2

The “Woolmington Principle”. This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 3

While the principle is still regarded as a fundamental tenet of the criminal law, it is subject to what?

Answer 3

A number of limitations in both law and practice.

Question 4

The fact that the prosecution bears the ultimate burden of proving the case beyond reasonable doubt does not mean what?

Answer 4

A. That the defence need not put forward any sort of case at all. If, for example, the
prosecution proves that D confronted V, took a knife out of her bag, and stabbed him, it would be unwise for V’s lawyer to refrain from cross-examination or from calling evidence in reliance on the burden of proof.

Question 5

In such a case, once the prosecution has proved the facts from which, in the absence of some sensible explanation from the defendant, it is an inescapable conclusion that D both wounded and intended to wound V, D in effect has to what?

Answer 5

Produce some sort of story if she wants to suggest that the conclusion is wrong. This is not, however, a burden of “proof” – D does not have to prove anything. Rather, it is a practical obligation to point to some evidence which suggests a reasonable doubt about the conclusions one would otherwise draw from the prosecution case.

Question 6

What happens if D wishes to put up a defence to the charge?

Answer 6

Rather than simply stating they did not do the act or have the necessary mental element. In presenting its case, the prosecution is under no obligation to negative all the various possible defences which might be available to a defendant.

Question 7

Once the basic elements have been proved – that D deliberately stabbed V – it is up to D to what?

Answer 7

Point to some evidence that suggests an explanation – such as, for example, that she was acting in self-defence. This is, however, not just a “practical obligation” of the sort discussed in the last paragraph.

Question 8

What is practical obligation also known as

Answer 8

An “evidential burden” on the defence. Here self-defence cannot be left to the jury or considered by the judge unless it has been made a “live issue” by the defence. However, once it is made a “live issue”, it is then up to the prosecution to destroy the defence, as they retain the burden of proof

Question 9

The existence of such an “evidential burden” is therefore not inconsistent with Woolminton. The burden of proof remains where?

Answer 9

It remains where that case puts it – with the prosecution

Question 10

What is the ultimate question for the jury?

Answer 10

It is always “has the prosecution proved its case?”

Question 11

Are there exceptions to the Woolmington principle?

Answer 11

There are exceptions in which the legal burden is unequivocally placed on the defendant, for example where the defendant wishes to rely on the defence of insanity (s23 Crimes Act 1961) and where there exist specific statutory exceptions (eg s180(4) Crimes Act 1961). There are places where the Evidence Act 2006 places the burden of proving a particular issue on one party, and occasionally this may be the defendant (see, for example, s45 regarding identification evidence).

Question 12

What public welfare regulatory offences?

Answer 12

Offences where Woolmington is seen simply to not apply. The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public, rather than to punish individuals for immoral or otherwise blameworthy conduct (e.g. offences related to maritime and aviation safety). In these cases the courts have developed a no-fault defence, with the burden of proof on the defendant.

Question 13

Any party bearing a legal burden of proof must what?

Answer 13

discharge this burden to the standard required

Question 14

In general, where the legal burden is on the prosecution it must what?

Answer 14

Be discharged “beyond reasonable doubt”. In contrast, any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.

Question 15

What is Beyond Reasonable Doubt?

Answer 15

A. The courts have been reluctant to provide any detailed or precise definition of the meaning of “beyond reasonable doubt”.

Question 16

Q. What does the Court of Appeal in R v Wanhalla [2007] 2 NZLR 573 at [49] tell us?

Answer 16

A. It formulated some assistance to juries after reviewing overseas research and models, concluding that juries should be told that:

“Proof beyond reasonable doubt is a very high standard of the proof which the Crown will have met only if, at the end of the case, you are sure the accused is guilty. It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence”.

Question 17

What has the Court of Appeal noted as the salient features of the Wanhalla direction?

Answer 17

The rationale for the burden of proof, namely the presumption of innocence; the fact that it is not enough for the Crown to convince the fact-finder of probable guilt; and the description of what a reasonable doubt is (R v Peato [2009] NZCA 333).

Question 18

What does R v Peato tell us what Beyond reasonable doubt means?

Answer 18

A. It is a very high standard of proof which the Crown will have met only if, at the end of the case, the jury is sure that the defendant is guilty.

Question 19

What does on the Balance of Probabilities mean?

Answer 19

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.

Question 20

What does Section 121 of the Evidence Act 2006 govern?

Answer 20

It governs the general approach and exceptions relating to corroboration, and in doing so it reflects the previous law. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard. It does not always follow that the court will act upon the evidence of one witness; it simply means that it may do so when sufficiently satisfied as to its cogency.

Question 21

What are the two types of offence where this is not the case? (112 evidence act)

Answer 21

Perjury and related offences (ss108, 110 and 111 Crimes Act) and treason (s73 Crimes Act) — in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, “corroboration”, which is some independent evidence which implicates the defendant in the crime charged, is required as a matter of law.

Question 22

What does section 121(2) provide for?

Answer 22

That there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction relating to the absence of corroboration.

Question 23

What is 121(2) subject to?

Answer 23

A. The exceptions in s121(1) for perjury and treason, and to s122 (whereby the judge may warn the jury about unreliable evidence). Under s122, if the judge is of the opinion that uncorroborated evidence may be unreliable, he or she may warn the jury of the need for caution. For some types of evidence, such as hearsay evidence, s122(2) provides that in jury trials the Judge must consider whether to give such a warning.

Question 24

Section 125(1) prohibits what?

Answer 24

A corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.

Question 25

What is Identification Evidence?

Answer 25

Evidence of identity usually takes the form of a witness stating that a person is the same as someone he or she saw on a previous occasion. In New Zealand, both visual and voice identification evidence has been admitted in criminal cases.

Question 26

The admission of ID evidence is subject to what?

Answer 26

It is subject to certain restrictions. These restrictions are a reflection of the inherent unreliability of both eye witness and ear witness identification: our memories are prone to incompleteness, distortion and forgetfulness.

Question 27

Visual identification evidence is defined in the 2006 Act as?

Answer 27

· 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.

Question 28

Visual ID is a fairly broad definition, potentially encompassing what?

Answer 28

A. 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 s45 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 ss7 and 8.

Question 29

The definition in s4 does not cover what?

Answer 29

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 30

What does Section 45 Evidence Act 2006 govern?

Answer 30

A. The admissibility of visual identification evidence.

Question 31

Write out section 45 of the EA 2006.

Answer 31

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 suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect; 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 suspect; and

d. in which the person making the identification is informed that the suspect 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 suspect 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 suspect (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 suspect 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 occurred 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 32

What is the effect of s45?

Answer 32

· 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 s45(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 continued resulting from an informal procedure will be inadmissible unless there was a good reason for not following a formal procedure (as outlined in s45(4)) or the prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made would have produced a reliable identification (s45(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 ss6, 7 and 8.

· The combined effect of s45(2) and (3) is intended to prevent dock identification — where the witness identifies the defendant in the courtroom for the first time. Under s45(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 s45(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 s45(4), a dock identification could be admissible unless the defendant can prove under s45(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.

Question 33

The focus under the Act is on what?

Answer 33

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 s45(3). How the procedure is utilised is the key, not whether one “method” is better than another.

Question 34

Section 45 introduces what?

Answer 34

Burden of proof on the defendant in s45(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

Question 35

Section 45(2) provides that what?

Answer 35

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 s45(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”.

Question 36

Under s45(2), the courts will still be able to take what?

Answer 36

Take into account all of the circumstances affecting reliability (eg witness factors such as eyesight and offence factors such as lighting), as well as the conduct of the procedure. However, other evidence in the case cannot be taken into account under s45(2).

Question 37

The focus on reliability of eyewitness evidence in s45 is a reflection of what?

Answer 37

The inherent potential for unreliability of both visual and voice identification:
• our memories are prone to incompleteness, distortion, and forgetfulness.
• 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 38

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. What Constitutes a formal procedure?

Answer 38

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.

Question 39

When should the procedure take place?

Answer 39

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

Question 40

If one or more of the requirements are not met, admissibility will be governed under what?

Answer 40

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.

Question 41

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. What are the key elements?

Answer 41

· 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 42

What constitutes a good reason for not following a formal procedure and what section refers?

Answer 42

Section 45(4) outlines what circumstances constitute a good reason for not following a formal procedure. The list in s45(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

Question 43

If the prosecution wants to avoid the burden imposed by s45(2), it must try to establish what?

Answer 43

A good reason for an informal procedure in any case where the requirements of s45(3) are not fully met. If the prosecution can provide a good reason under s45(4), the identification evidence will be admissible under s45(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 s45(4) will therefore be a crucial issue in many cases.

Question 44

What are some of the “good reasons” involve some difficult issues and there sections?

Answer 44

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

Section 45(4)(a) recognises the right (also found in s344B 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 s45(4) because the existing photograph or video can be used in a formal procedure.

· 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 s45(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 s45(3)(b) is unclear

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

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.

· 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

Question 45

Recognition of the suspect by the eyewitness may make a formal procedure unnecessary, What is the case law relating to this and what does it say?

Answer 45

(R v EdmondsF F[2009] NZCA 303). 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 s45(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.

Question 46

The provision in s45(4)(e) aims to avoid what?

Answer 46

Tainting of the evidence, and 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.

Question 47

The identification under s45(4)(e) must be made in the course of what?

Answer 47

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 s45(4)(f). In practice, the line between chance and organized meetings may sometimes be difficult to discern

Question 48

Section 4 Evidence Act 2006 defines what?

Answer 48

“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

Question 49

Section 46 Evidence Act 2006 governs what?

Answer 49

. The admission of voice identification evidence, and sets out a general rule of inadmissibility:

Question 50

Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless what?

Answer 50

The prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.

Question 51

The burden of proof imposed on the prosecution under s46 is proof of what?

Answer 51

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 s45(2) is proof beyond reasonable doubt, a significantly higher standard than under s46.

Question 52

Discuss a defendants’ statements and improperly obtained evidence

Answer 52

Evidence offered by the prosecution of a statement made by a defendant is not admissible against a co-defendant.

Question 53

In practical terms, what does this mean?

Answer 53

A “statement” is a spoken or written assertion of any matter, or non-verbal conduct that is intended as an assertion of any matter (s4 of the Evidence Act 2006)

Question 54

Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under what sections?

Answer 54

· the reliability rule (s28)

· the oppression rule (s29), and

· the improperly obtained evidence rule (s30)

Question 55

Discuss s28 Exclusion of unreliable statements

Answer 55

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 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:

(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.

Question 56

The oppression rule has been described by the Court of Appeal as?

Answer 56

The most serious ground of objection to the admissibility of a defendant’s statement (R v Hawea [2009] NZCA 127 at [31]). Once an evidential foundation is established to raise the issue of whether a defendant’s statement was influenced by oppression under s 29(1), s29(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 s29(5).

Question 57

Reliability” in s28 relates to what?

Answer 57

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.

Question 58

Section 28(2) will not have the effect of excluding a defendant’s statement in two circumstances, what are those circumstances?

Answer 58

· 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 59

What deos section 28(4) set out?

Answer 59

A. 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 s28(4), but the listed factors must be taken into account insofar as they are “relevant to the case”.

Question 60

Detail the sections that relate exclusion of statements influenced by oppression?

Answer 60

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:

(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

Question 61

The oppression rule has been described by the Court of Appeal as what?

Answer 61

The oppression rule has been described by the Court of Appeal as what?

A. The most serious ground of objection to the admissibility of a defendant’s statement (R v Hawea [2009] NZCA 127 at [31]). Once an evidential foundation is established to raise the issue of whether a defendant’s statement was influenced by oppression under s 29(1), s29(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 s29(5)

Question 62

Oppression is to be judged from the perspective of who?

Answer 62

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” (s29(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 to be.

Question 63

Detail s30 - Improperly obtained evidence

Answer 63

(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

(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 and 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.

Question 64

Who does Section 30 only apply to?

Answer 64

Only applies to evidence offered by the prosecution.

When the evidence in question is a statement by a defendant, s30(1)(a) operates in the same way as ss28(1)(a) and 29(1)(a).

Question 65

What about when the evidence in question is a statement by a defendant?

Answer 65

When the evidence in question is a statement by a defendant, s30(1)(a) operates in the same way as ss28(1)(a) and 29(1)(a).

Question 66

Does Section 30(1) contains any requirement that the defendant can only apply for exclusion on the basis of a breach of his or her own right?

Answer 66

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 s30(1), the judge must determine, to the standard of balance of probabilities, whether or not the evidence was improperly obtained (s30(2)(a))

Question 67

Section 30(5) defines what?

Answer 67

A. improperly obtained evidence. It is evidence obtained:

· in consequence of a breach of any enactment or rule of law by a person to whom s3 New Zealand Bill of Rights Act 1990 applies; or

· 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 s30(5)(a) and (b). Causation is also necessary to show that evidence was unfairly obtained under s30(5)(c).

Question 68

What does Richardson J put it in R v Te Kira [1993] 3 NZLR 257, at p 272:

Answer 68

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.

Question 69

What is the distinction between mere “but for” causation and a “real and substantial?

Answer 69

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.

Question 70

what does Section 30(5) provides that evidence is improperly obtained if it is obtained how?

Answer 70

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”. The subsection ensures that if the pivotal statement is inadmissible, any real evidence (such as a weapon) found in consequence comes within the definition of improperly obtained evidence. It does not matter that the prosecution made no attempt to offer the statement itself in evidence;

· “unfairly”. Under s30, a judge can decide that a defendant’s statement had been obtained unfairly even though the prosecution could satisfy the tests for admissibility under s28 (the reliability rule) or s29 (the oppression rule). 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 s30 factors will be relevant to the exercise of the common law discretion.

Question 71

Before the Evidence Act what Before the Act, what provided a prime focus for arguments that a defendant’s statement had been obtained unfairly?

Answer 71

Judges rules. 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.

Question 72

What still applies in the Courts

Answer 72

A new set judges rules - the Practice Note on Police Questioning, issued by the Chief Justice under s 30(6) of the Act

Question 73

Explain the Practice Note on Police Questioning, issued by the Chief Justice under s 30(6) of the Act

Answer 73

“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.

Question 74

List the new judges rules - the Practice Note on Police Questioning, issued by the Chief Justice under s 30(6) of the Act

Answer 74

List the new judges rules - the Practice Note on Police Questioning, issued by the Chief Justice under s 30(6) of the Act

Question 75

What did the majority of the Court in Chetty v R [2015] NZCA 241 state?

Answer 75

That “The Practice Note does not create rights but it can be seen as setting standards …It sets out how the Police must conduct themselves and requires a record to be created.” [at 125]

Question 76

What does Section 30(6) provide?

Answer 76

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.

Question 77

What occurs if it is determined that a statement has been obtained unfairly?

Answer 77

It means that the statement has been “improperly obtained” (s30(5)(c)). The balancing process required by s30(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.