Elements of Evidence

Question 1

Purpose of Evidence Law

Answer 1

PURPOSE OF EVIDENCE ACT S6 - EA06
Help secure the just determination of proceedings by -

• Providing for facts to be established by the application of logical rules
• Providing rules of evidence that recognise the rights affirmed by the New Zealand Bill of Rights Act 1990
• Promoting fairness to parties and witnesses
• Avoiding unjustifiable expense and delay
• Enhancing access to the law of evidence.

Question 2

Facts That Prove the Charge

Answer 2

FACTS THAT PROVE THE CHARGE
Facts must prove elements of the charge and evidence should be made up of facts the prove that charge. The elements should at the forefront when deciding what evidence will help prove guilt.

Question 3

General Rule to Evidence/Establishing Facts

Answer 3

All evidence that is fact in issue/relevant to that must be proven by evidence - except when judicial notice is taken or facts formally admitted

Question 4

Judicial Notice

Answer 4

JUDICIAL NOTICE
When the court declares it will find the facts exist (known/accepted/not reasonably questioned)/will direct jury to do so even though evidence has not been established - admitted as UNCONTROVERTED FACTS (S128)

Question 5

Presumption of Law

Answer 5

Inferences that have been drawn by law from particular facts. They may be either conclusive or rebuttal - e.g. child under 10 is unable to be convicted (CA 1961 section 21(1))

Question 6

Presumption of Fact

Answer 6

PRESUMPTION OF FACT
Those that the mind naturally and logically draws from the given facts - e.g. one presumes that a person has guilty knowledge if they are in possession of recently stolen goods (always rebuttable)

Question 7

Admissiblity

Answer 7

Refer to definitions - Party wishing to present evidence has burden of showing its admissible.

Question 8

S7 Relevance

Answer 8

S7 FUNDAMENTAL PRINCIPAL - RELEVANCE
1 - All relevant evidence admissible except evidence that is inadmissble under EA06 or excluded under EA06 or any other Act,
2 - Evidence not relevant is not admissible in a proceeding
3 - Evidence is relevant in a proceeding if it has a tendency to prove/disprove anything that is of consequence to the determination of the proceeding

Question 9

S8 Fairness

Answer 9

RELEVANT BUT EXCLUDED DUE TO UNFAIRNESS - S8
Although relevant maybe excluded if it would result in unfairness, usually arises in two ways - excluded if it would result in some unfair prejudice in the proceeding or obtained in circumstances that would make its admission against the defendant unfair - e.g been obtained by unfair or improper methods

Question 10

S8 - Unfairness

Answer 10

S8 UNFAIRNESS and GENERAL EXCLUSION
S8(1) - Judge must exclude evidence if probative value is out weighed by risk that the evidence will
(a) have an unfairly prejudicial effect on the proceeding
(b) needlessly prolong the proceeding

Question 11

S8 Test

Answer 11

S8 TEST
Involves balancing the probative value of evidence against the risk it will have an unfairly prejudicial effect in the proceeding or needlessly prolong the proceeding.

Evidence will be admitted under S8 if probative value outweighs the risk that it will unfairly prejudicial effect of the proceeding or it is strong enough to justify prolonging the proceeding

Question 12

Confessions

Answer 12

CONFESSIONS
Although it is relevant maybe excluded inadmissible if gained in circumstances that are unfair or improper. Maybe be good evidence but excluded under the fairness discretion/test.

Question 13

Provisional Admissibility / Voir Dire

Answer 13

VOIR DIRE
When question arises about admissibility of evidence a separate hearing (jury excluded) can be held to determine whether evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.
Facts determined at this sometime referred to as ‘preliminary facts.’