Elements of Evidence

Question 1

What is the purpose of the evidence act and it’s 6 objectives

Section 6, Evidence Act 2006

Answer 1

To help secure the just determination of proceedings by-

a) providing for FACTS to be established by the application of logical rules
b) providing RULES of evidence that recognise the importance of the rights affirmed by the NZ Bill of Rights Act 1990
c) promoting FAIRNESS to parties and witnesses
d) PROTECTING rights of confidentiality and other important public interests
e) AVOIDING unjustifiable expense and delay
f) ENHANCING access to the law of evidence.

Question 2

What is meant by facts that prove the charge

Answer 2

The facts must prove the elements of the charge and the evidence should be made up of facts that prove the charge

These should take into consideration what evidence is relevant and what evidence will help prove the guilt of the person charged

Question 3

What are facts in issue

Answer 3

Facts which in law need to be proven to succeed with the case

In criminal cases the facts in issues are usually those which are alleged by the charging document and denied by a plea of not guilty

Question 4

What is circumstantial evidence

Answer 4

A fact from which the judge or jury may infer the existence of a fact in issue. As such it offers indirect proof of a fact in issue.

Question 5

What is the general rule of evidence

Answer 5

All facts in issue and facts relevant to the issue must be proved by evidence.

Question 6

What are the two main exceptions to the general rule when no evidence needs to be given of facts

Answer 6

• judicial notice is taken

* the facts are formally admitted.

Question 7

What is a judicial notice of a fact

Section 128 and 129

Answer 7

when the court declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists

128
• concerned with facts that are fact in issue or relevant to facts in issue
• 128(1) concerns notice of facts known and accepted generally or in the locality (eg, date and location of annual carnival)

129
• common law exception to the hearsay rule
• admitted accredited histories, scientific works and maps may be admitted as evidence to prove facts of public nature

Question 8

What are facts formally admitted

Answer 8

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

Question 9

What are presumptions of law

Answer 9

Inferences that have been expressly drawn by law from particular facts. They may be either conclusive or rebuttable.

eg, a child under 10 is unable to be convicted (Crimes Act 1961, s21(1)) (conclusive and irrebuttable)

All defendants are innocent until proven guilty (rebuttable)

Question 10

What are presumptions of fact

Answer 10

Those that the mind naturally and logically draws from the given facts. Logical inferences and are always rebuttable

eg, one presumes that a person has guilty knowledge if they are in possession of recently stolen goods

Question 11

What are the three principles of evidence law that courts refer to when deciding whether evidence is admissible

Answer 11

• relevance
• reliability
• unfairness

Evidence is admissible if it can be legally received by the courts

Question 12

For facts to be received in evidence they must be what

Answer 12

Relevant and admissible

Question 13

What may happen if evidence is deemed unreliable

Answer 13

relevant evidence may sometimes be excluded – or if admitted may attract a judicial warning because it is regarded as unreliable.

Question 14

Even though evidence is relevant, it could be excluded if it would result in unfairness. In what two ways can unfairness arise

Answer 14

• if it would result in some unfair prejudice in the proceeding
• where it has been obtained in circumstances that would make its admission against the defendant unfair (eg, defendants statement obtained by unfair/improper methods)

Question 15

General exclusion provision Section 8

The section 8 test involves balancing the probative value of evidence against the risk that it will what

Answer 15

• have an unfairly prejudicial effect on the proceeding (s8(1)(a))
• needlessly prolong the proceeding (s8(1)(b))

Question 16

In considering the section 8 test what must also be taken into account

Answer 16

Must take into account the right of the defendant to offer an effective defence s8(2)

Question 17

Can inadmissible evidence be admitted if all parties agree to it

Answer 17

Yes, but the judge retains control and may decline to admit it

Question 18

What is a “voir dire” hearing (preliminary facts)?

Answer 18

A hearing where evidence is given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. It is conducted without a jury being present.

Question 19

Evidence may be used in different ways and for different purposes in a proceeding. What is the general rule around this

Answer 19

Evidence is either admissible for all purposes or it is not admissible at all

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

Question 20

What is relevant evidence

Section 7

Answer 20

Any evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

7(1) all relevant evidence is admissible except evidence that is -

a) inadmissible under this act or any other
b) excluded under this act or any other

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