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Flashcards in Elements of Evidence Deck (15)
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Purpose of Evidence Law


The Act aims to “help secure the just determination of proceedings” through six objectives:

S6 Evidence Act 2006

The purpose of this Act is to help secure the just determination of proceedings by—

(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and

(d) protecting rights of confidentiality and other important public interests; and
(c) promoting fairness to parties and witnesses; and

(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.


General Rule of Evidence

A general rule of evidence is that all facts in issue and facts relevant to the issue must be proved by evidence.


Exceptions to the General Rule of Evidence

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

• judicial notice is taken
• the facts are formally admitted.


Judicial Notice

Notice of Uncontroverted Facts


S128 Evidence Act 2006

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.

(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.


Judicial Notice

Admission of Reliable Published Documents


S129 Evidence Act 2006

(1) A Judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.

(2) Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).


Presumption of Law

And example

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

A child under ten years of age is unable to be convicted (Crimes Act 1961, section 21(1)).


Presumption of Fact

And example

Presumptions of fact are those that the mind naturally and logically draws from the given facts.

One presumes that a person has guilty knowledge if they have possession of recently stolen goods.

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


Determining Admissibility of Evidence

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law:

• Relevance
• Reliability
• Unfairness
• Public interest




Fundamental principle that relevant evidence admissible

S7 Evidence Act 2006

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Of note

Whereas irrelevant facts will always be inadmissible, relevant facts are not always admissible. For facts to be received in evidence, they must be both relevant and admissible.



Unfairness can cover a variety of situations and is a matter of discretion for the trial judge. It usually arises in two ways:

- Evidence may be excluded if it would result in some unfair prejudice in the proceeding.

- Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair. e.g. unfair confession


General Exclusion Provision


(Section 8 Test)

S8 Evidence Act 2006

It is to the first type of unfairness that the general exclusion provision in S8 is directed:

(Section 8 Test)
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.


Provisional Admissibility

S14 Evidence Act 2006

Where a question arises concerning the admissibility of any evidence, the judge may admit the evidence, subject to further evidence being offered later which establishes its admissibility.

Of note

If the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration.


Voir Dire

S15 Evidence Act 2006

Governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding.

Of note

Such a hearing is commonly referred to as a “voir dire”, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as “preliminary facts”.

Evidence given at a voir dire will be admissible in other stages of the proceeding only if the evidence given by the witness at the voir dire is inconsistent with the witness’s subsequent testimony at another stage of the same proceeding. It is admissible in order to demonstrate the inconsistency.


Limited Use of Evidence

3 provisions of the act limiting the use to which some evidence can be put:

• s27, which controls the use of pre-trial statements of defendants and co-defendants

• s31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case

• s32, which forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.


Specific restrictions aside, if evidence is admitted, for what purposes can it be used?

Hart v R

Hart v R

“the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”