Flashcards in Exclusive Rules of Evidence Deck (65)
What are examples of relevant considerations in relation to the circumstances of hearsay evidence?
Whether written or oral
How long after the event the statement refers to
Relationship between maker and witness
In order to comply with s25, what must the expert opinion evidence be?
-be that of an expert
-comprise expert evidence
-offer substantial help to the fact finder in understanding other evidence or ascertaining any fact in the proceeding
How does S16(2) define 'unavailable as a witness?)
a person is unavailable as a witness in a proceeding if the person—
is dead; or
is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
is unfit to be a witness because of age or physical or mental condition; or
cannot with reasonable diligence be identified or found; or
is not compellable to give evidence.
What does propensity evidence include?
Propensity as to actions and to state of mind
What are the requirements of having hearsay evidence admitted under section 22(1)?
Notice of hearsay in criminal proceedings
In a criminal proceeding, no hearsay statement may be offered in evidence unless—
the party proposing to offer the statement has complied with the requirements of subsections (2), (3), and (4); or
every other party has waived those requirements; or
the Judge dispenses with those requirements.
What sections act as a check on propensity evidence?
Outside Section 40(3) and 40(4) the general principals of relevance (s7) and general exclusion provision (s8) will act as a check on propensity evidence.
What can an expert witness base their opinions on?
-Material such as books or articles which add to the general body of information on any given topic.
-Facts that are supplied by others and may be assumed facts.
Under S22(3) if the hearsay statement is made in writing what must you do?
If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.
What is the focus of S18(1)
the reliability of the hearsay statement itself, not the person who intends to give the hearsay evidence.
Under 43 what MAY the judge take into account when assigning the probative value to evidence?
S43(3) (list not exhaustive)
the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
How does the test for propensity evidence relating to prior convictions relate to the test for propensity evidence relating to prior history not resulting in a conviction?
They are the same test.
Are out of court statements made by a witness hearsay?
No because the person who made the statement is available to be cross examined, even if they don't give the evidence in chief about the statement.
What is the definition of a statement?
-A spoken or written assertion by a person of any matter
-non-verbal conduct of a person that is intended by that person as an assertion of any matter
Under S43 what MUST the judge take into account when assigning the probative value to evidence?
the nature of the issue in dispute
Is the definition of circumstances under S16(1) exhaustive?
No it is a non-exhaustive definition
What section covers the propensity rule and what is contained in that section?
In this section and sections 41 to 43, propensity evidence—
means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
does not include evidence of an act or omission that is—
1 of the elements of the offence for which the person is being tried; or
the cause of action in the proceeding in question.
A party may offer propensity evidence in a civil or criminal proceeding about any person.
However, propensity evidence about—
a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.
Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.
Under S22(4) when must the notice be served saying that the party intends to offer hearsay evidence?
The requirements of subsections (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.
What is the opinion rule?
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.
How does R v Gwaze summarise the definition of circumstances in relation to hearsay evidence?
The inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement, nit also the nature and contents of the statement, and the circumstances relating to its making.
What is the rationale behind the rules against hearsay?
lies in the lack of reliability of hearsay evidence
-Where the maker is not called as a witness so there is no opportunity to cross-examine them in relation to the evidence
-where the jury don't get to see the demeanour of the person giving the evidence making it harder for them to evaluate the evidence
-as there is a danger that the witness giving the evidence will make mistakes about the meaning or contents of the statement.
In order to be able to offer evidence of a defendants veracity....
-The prosecution must show the veracity is relevant
-the defendant has offered evidence about their own veracity
-the evidence must meet the substantial helpfulness test
-the prosecution must get permission from the judge to offer the evidence
What are the justifications for the opinion rule?
-Where a witness offers a bare opinion it holds little probative value
-There is a danger that the witness offering the evidence may effect the tribunal when assessing the evidence presented
-witnesses opinion may be based on other evidence which if stated expressly, would be inadmissible
What is a business record under S19(1)?
A document that is made
-to comply with a duty or in the course of a business, and as a record of that business
-from information supplied directly or indirectly by a person who had, or may reasonably be supposed b the court to have had, personal knowledge of the matters dealt with in the information he or she supplied
This definition also includes a statement made to a Police officer and written down in their notebook or job sheet.
What is the general rule of propensity evidence?
A party may offer propensity evidence about any person.
This is however subject to restrictions relating to propensity evidence.
What section covers offering evidence about the defendants veracity?
Evidence of defendant’s veracity
A defendant in a criminal proceeding may offer evidence about his or her veracity.
The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if—
the defendant has, in court, given oral evidence about his or her veracity or challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and
the Judge permits the prosecution to do so.
In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:
the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:
the time that has elapsed since any conviction about which the prosecution seeks to give evidence:
whether any evidence given by the defendant about veracity was elicited by the prosecution.
What section covers the veracity rules and what is covered in this section?
A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
Veracity evidence given about a defendant in a criminal proceeding must comply with section 38 or, as the case requires, section 39.
In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
The person lacks veracity when under a legal oligation to tell the truth
that the person has been convicted of 1 or more offences that indicate a propensity for a lack of veracity:
any previous inconsistent statements made by the person:
bias on the part of the person:
a motive on the part of the person to be untruthful.
A party who calls a witness—
may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
may offer evidence as to the facts in issue contrary to the evidence of that witness.
For the purposes of this Act, veracity means the disposition of a person to refrain from lying.
What are the two classes for which character evidence is divided into?
Veracity - a disposition o refrain from lying
Propensity - a tendency to act in a particular way
What section covers propensity evidence about defendants and what is contained in that section?
Propensity evidence about defendants
A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).
Who decides whether an expert witness is properly qualified?