Module 8 - Evidence (1) (Feb 2015)

Question 1

What is evidence?

Answer 1

“Evidence” is the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.

Evidence may be in oral, written or visual form.

Question 2

What are the rules of evidence?

Answer 2

The rules of evidence determine the form in which and the means by which evidence may be presented to the court. They are to be found in both specific statutory provisions and case law. Most of the law can now be found in the Evidence Act 2006.

The rules of evidence fall into three main categories:

• how evidence may be given;
• who may give evidence; and
• what type of material may be given in evidence.

Question 3

What is some basic terminology for Court? (20 terms)

Answer 3

Admissible Evidence: Evidence is admissible if it is legally able to be received by a court.

Fact-finder: Judge or jury

Relevance: Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding” (s7(3) Evidence Act 2006).

Facts in Issue: Facts in issue are those which the prosecution must prove in order to establish the elements of the offence; or those which the defendant must prove in order to succeed with a defence in respect of which he or she carries the burden of proof.

Exclusionary Rules: Exclusionary rules are rules which exclude relevant evidence.

Proceeding: a proceeding conducted by a court, and any interlocutory or other application to a court connected with a proceeding.

Weight of Evidence: The “weight” of evidence is its value in relation to the facts in issue. This will depend upon a wide range of factors, such as the extent to which, if accepted, it is directly relevant to or conclusive of those facts; the extent to which it is supported or contradicted by other evidence produced; and the veracity of the witness. The “weight” is the degree of probative value that can be accorded to the evidence.

Probative Value: How strongly evidence points to the inference it is said to support, and how important the evidence is to the issues in the trial, will determine the level of probative value that a piece of evidence holds. In this sense, probative value of evidence is how strongly and centrally the evidence assists in proving or disproving issues in a case.

Prejudicial: evidence adverse to a party’s case; the drawing of an inference against a party. However, the exclusion in s 8 Evidence Act 2006 relates to unfair prejudice. It refers to the danger of the jury using the evidence for an improper purpose or in support of an impermissible chain of reasoning (see SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [128]). For example, the jury may give more weight to evidence than it deserves, speculate inappropriately about the meaning or significance of evidence, be misled by the evidence, and/or use the evidence for an illegitimate purpose.

“Give evidence”: The “giving of evidence” is included in “offering evidence”. A witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence. The offering of evidence in the 2006 Act includes eliciting evidence by cross-examining a witness called by another party (evidence must be elicited before it is “offered”, merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition: section 96(1) Evidence Act 2006; R v McKenzie [2004] 1 NZLR 181).

In a proceeding, evidence may be given

• in the ordinary way – the ordinary way of giving evidence is either orally in a courtroom in the presence of a Judge (or Judge and jury), parties to the proceeding, counsel, and members of the public allowed by the Judge; or in an affadavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent and the statement is admissible and is the personal statement of the deponent or maker;
• in an alternative way – in the courtroom but unable to see the defendant or other person, outside the courtroom, or by video record made before the hearing. The Courts (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss 103-106 Evidence Act 2006, which provides for applications and directions regarding alternative ways of giving evidence;
• in any other way provided for by the 2006 Act or any other enactment;
• where evidence is to be used in overseas criminal proceedings, “giving evidence” includes answering any question and producing any document (s195(3) Evidence Act 2006).

Incriminate: To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.

Statement: a statement is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.

Witness: a witness is a person who gives evidence and is able to be cross-examined in a proceeding.

Child complainant: a complainant who is a child (under 18 years) when the proceeding commences (when charging document is filed NOT at the beginning of the trial).

Hearsay statement: A hearsay statement is a statement that was made by a person other than a witness and is offered in evidence in the proceeding to prove the truth of its contents. This definition of “hearsay statement” means that out-of-court statements made by a “witness” (that is, someone who gives evidence and is able to be cross-examined in a proceeding) are not excluded by the hearsay rule on the basis that the maker is available to be cross-examined. Also, a statement offered for some other purpose than to prove the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement. The hearsay rule is discussed further in Chapter 9.

Veracity: veracity is the disposition of a person to refrain from lying, whether generally or in a proceeding.

Propensity: propensity is a person’s tendency to act in a particular way or have a particular state of mind. Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.

Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife give direct evidence).

Circumstantial evidence: evidence of circumstances that do not directly prove any fact in issue but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime).

Enforcement Agency: an enforcement agency refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment (such as the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department).

Question 4

What is the purpose of Evidence Law?

Answer 4

Section 6 Evidence Act 2006 sets out the purpose of the Act. It has significance when courts are interpreting the Act; exercising the courts’ inherent powers; and making decisions on the admissibility of evidence when other sections of the 2006 Act or other enactment does not provide a ready answer.

The 2006 Act aims to “help secure the just determination of proceedings” through the six objectives set out in s6:

6 Purpose

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
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and (e) avoiding unjustifiable expense and delay; and (f) enhancing access to the law of evidence.

The Act, and admission of evidence not directly covered by the Act, must be interpreted in a way that promotes the purposes and principles (contained in s6 above, and ss 7 and 8 below). Outside of the Act, common law cases can be used to help decide which evidence might be admitted, but only in so far as they are consistent with the provisions of the Act and the promotion of its purposes and principles (s 12). However, this cannot override explicit exclusionary wording in the Act itself.

Question 5

What is Section 7, Evidence Act 2006?

Answer 5

Relevance

The fundamental condition for the admissibility of evidence is that it must be relevant. Evidence that is not relevant will not be admissible.

Section 7, Evidence Act 2006 Fundamental principle that relevant evidence admissible

(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.

Relevant evidence may include direct evidence and circumstantial evidence (where the evidence does not directly prove anything but may allow inference about such proof). It excludes any extraneous matters that do not relate to the precise issue or issues to be determined by the court. Evidence can be admitted on any basis for which its relevance can be established. See, for example, R v Wyatt 10/10/07, CA311/07; [2007] NZCA 436, para 14.

If the judge decides that a piece of evidence is relevant, then subject to any other legal rules of inadmissibility or exclusion, the party will be entitled to present the evidence in the proceeding. Relevance is a necessary but not a sufficient condition of admissibility under the 2006 Act.

Once received, the degree of probative force, or “weight”, to be given to the evidence is a question for the trier of fact (Judge alone or jury).

Question 6

What is Section 8, Evidence Act 2006?

Answer 6

Fairness, and the General Exclusion Under Section 8 Evidence Act 2006 Even though evidence is relevant, it may be excluded if it would result in some unfairness to the party against whom it is admitted. 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. The most obvious example of this is where a defendant’s statement has been obtained by unfair or improper methods. The “confession” itself may well be impeccable evidence, but the way in which it was obtained may lead to its exclusion under the fairness discretion (see further the discussion in Chapter 10 of s 30 of the 2006 Act, which governs improperly obtained evidence).

It is to the first type of unfairness that the general exclusion provision in s8 is directed:

Section 8 - General exclusion

(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.

Section 8 sets out a general requirement for exclusion of evidence that is otherwise relevant and not excluded or rendered inadmissible by some specific provision of the Act or any other Act. It is intended to help a judge manage the length of a trial and/or ensure fairness of the proceeding. The judge has to conduct a “weighing up” process under s 8(1). However, once he or she decides that s 8(1)(a) or (b) apply, the requirement of general exclusion is mandatory (“must exclude”). The rule in s 8(1) applies even where evidence satisfies the conditions for admissibility in another provision in the Act.

The s 8 test involves balancing the probative value of evidence against the risk that it will have an “unfairly prejudicial effect on the proceeding” (s 8(1)(a)), or “needlessly prolong the proceeding” (s 8(1)(b)). Evidence will be admitted under s 8 if its probative value outweighs the risk of any unfairly prejudicial effect on the proceeding; or is strong enough to support a prolonging of the proceeding.

The risk of “unfair prejudice” will typically refer to the danger that a trier of fact will give some piece of evidence more weight than it deserves, be misled by evidence, speculate inappropriately about the meaning or significance of evidence or use evidence for an illegitimate purpose. The s 8 focus allows exclusion of evidence likely to be unfair by distracting the fact-finder from the real issues in the trial.

Under s 43, there is a similar balancing exercise with specific focus on the prejudicial effect on the defendant where the prosecution wish to offer propensity evidence about the defendant (see Chapter 9).

Section 8(1)(b) excludes evidence that will needlessly prolong the proceedings (for example where a defendant wishes to call twenty witnesses to give evidence as to his or her veracity, section 8(1)(b) could be used by the Judge to limit the evidence to fewer witnesses).

The assessment under s 8(1)(a) “must take into account the right of the defendant to offer an effective defence” (s 8(2)). This reflects s 25(e) (the right of criminal defendants to present a defence) and s 25(a) (the right to a fair trial) of the New Zealand Bill of Rights Act 1990. Nothing in s 8(2) requires the admission of evidence where its unfairly prejudicial effect on a proceeding is held by a court to outweigh its probative value in the case. However, in finely balanced cases, s 8(2) may make a difference – either to allow admissibility where the defence wish to offer the evidence, or to find that the evidence is inadmissible where prosecution evidence may risk an illegitimate prejudicial impact on the defence case.

Question 7

What is Section 9, Evidence Act 2006?

Answer 7

Admission by agreement

Notwithstanding the principles that we have discussed, s 9 of the 2006 Act allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. The judge has to ensure that the trial is fair, and as such retains control of the process and may decline to admit the evidence even if all parties agree to its admission; or may not agree to admit it in the form agreed to by the parties (R v Hannigan [2012] NZCA 133 at [13]). The most obvious example would be where, in the judge’s view, the evidence or the mode of offering it would amount to a breach of s 8. Section 9 also enables both prosecution and defence to admit facts so that they do not need to be proved.

Question 8

What is the rule around “Limited use of evidence and use for multiple purposes”?

Answer 8

The 2006 Act does not clearly specify whether evidence may be relied upon for multiple purposes. However, in line with s 6(a) (purposes) and s 7 (principle of relevance), the general rule should be that, once admitted, evidence will be available to prove “anything that is of consequence to the determination of the proceeding” (s 7(3)). Admissible evidence may be used in different ways and for different purposes in a proceeding. The Supreme Court has confirmed this approach, stating that “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all” (Hart v R [2010] NZSC 91 at [54]).

This general rule is subject to various provisions of the Act specifically limiting the use to which some evidence can be put, such s 31, which forbids the prosecution from relying on certain evidence offered by defendants in a criminal case; and s 32, which forbids the fact-finder from using a criminal defendant’s pre-trial silence as evidence of guilt.

There are obviously dangers in admitting evidence for one purpose which is generally regarded as irrelevant, prejudicial or unfair for some other purpose, since the trier of fact may fail to draw a distinction between one purpose and another and thus misuse the evidence. In jury trials at least, courts generally strive to minimise this danger by giving appropriate directions to the jury. To this end, the Act requires judges to warn juries against reliance on some types of evidence for certain purposes, such as s 124 (warning about evidence that the defendant has lied).

Question 9

What are the rules around Provisional Admissibility and evidence on Voir Dire?

Answer 9

Section 14 of the 2006 Act provides that, where a question arises concerning the admissibility of any evidence, the Judge may admit the evidence, subject to evidence being later offered which establishes its admissibility. In jury trials, judges must have regard to whether the jury would be able to disregard the evidence should the party offering it be unable to establish its admissibility. If the evidence is provisionally admitted under s 14 and then the other evidence required to establish admissibility is not forthcoming, the provisionally admitted evidence must be excluded from consideration. In a jury trial a direction should be given to the jury to disregard the evidence.

Section 15 of the 2006 Act governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a “voir dire” (a “hearing within a hearing” or “trial within a trial”), when 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”. Section 15 applies to all witnesses, and to evidence given in any type of hearing held to determine the admissibility of evidence.

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. However, note that cross-examination on a statement excluded under ss 29 or 30 is not allowed by virtue of s 90 of the 2006 Act.

Question 10

What is the “Burden of Proof”?

Answer 10

The fundamental principle in criminal law is the presumption of innocence, known as 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.

While the principle is still regarded as a fundamental tenet of the criminal law, it is subject to a number of limitations in both law and practice.

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

A rather different situation arises where D wishes to put up a defence to the charge – 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. Once the basic elements have been proved – that D deliberately stabbed V – it is up to D to 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. It is known as 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.

The existence of such an “evidential burden” is therefore not inconsistent with Woolmington. The burden of proof remains where that case puts it – with the prosecution. The ultimate question for the jury is always “has the prosecution proved its case?”

However, there are exceptions to the Woolmington principle in which the legal burden is unequivocally placed on the defendant, for example where the defendant wishes to rely on the defence of insanity (s 23 Crimes Act 1961) and where there exist specific statutory exceptions (e.g. s 180(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, s 45 regarding identification evidence).

In addition, the law has developed in such a way as to include offences where Woolmington is seen simply to not apply – these are known as public welfare regulatory offences.

Woolmington may not apply: Public Welfare Regulatory Offences 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.

[Note that the effect of the changes in the Criminal Procedure Act 2011 is to repeal s 67(8) Summary Proceedings Act 1957, which contained an exception to Woolmington for summary offences that provided a statutory defence].

Question 11

What is the Standard of Proof?

Answer 11

Any party bearing a legal burden of proof must discharge this burden to the standard required.

In general, where the legal burden is on the prosecution it must 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 12

What is “Beyond Reasonable Doubt”?

Answer 12

The courts have been reluctant to provide any detailed or precise definition of the meaning of “beyond reasonable doubt”. However, a majority of the Court of Appeal in R v Wanhalla [2007] 2 NZLR 573 at [49] 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”.

Beyond reasonable doubt is therefore 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 13

What is the Balance of Probabilities?

Answer 13

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 14

What is Corroboration?

Answer 14

Section 121 of the Evidence Act 2006 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.

However, there are two types of offence – perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s 73 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.

Section 121(2) provides 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. This is subject to the exceptions in s121(1) for perjury and treason, and to s 122 (whereby the judge may warn the jury about unreliable evidence). Under s 122, 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, notwithstanding the general provision in s 121(2).

Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.

Question 15

What is the Adversarial System in the Trial Process?

Answer 15

The conduct of criminal trials follows the “adversarial” or “accusatorial” system of justice developed through the English common law. The essential features of this system are as follows:

• The facts of the case, and evidence relevant to the determination of those facts, emerge by means of questions put by prosecution or defence to witnesses called by them.
• It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they should be asked.
• Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.
• During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
• The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case; he or she may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.

Question 16

Who must make an Oath or Affirmation before giving Evidence in Court?

Answer 16

Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence. Witnesses under the age of 12:

• must be informed by the Judge of the importance of telling the truth and not telling lies (unlike the previous law, there is no requirement for a judge to determine a child’s understanding of the difference between truth and lies or of the importance of telling the truth: R v Tanner [2007] NZCA 391); and
• must, after being given that information, make a promise to tell the truth, before giving evidence.

Notwithstanding these general requirements in section 77 Evidence Act 2006, with the judge’s permission a witness of any age may give evidence without taking an oath, making an affirmation or making a promise to tell the truth. If the judge gives such permission, he or she must inform the witness of the importance of telling the truth and not telling lies before the witness gives evidence. The evidence of the witness must then be treated as if it had been given on oath. Permission may be given for witnesses such as adult witnesses with an intellectual disability, or where a child witness is unable to promise to tell the truth.

Question 17

What is the general Conduct of Trials?

Answer 17

The Criminal Procedure Act 2011 governs the conduct of all trials. In general there are now fewer differences between the process for judge alone and jury trials.

As under the previous law for jury trials, the prosecution open the case and call witnesses, to be followed by the defence opening and calling of witnesses. The Court may give the defendant leave to make an opening statement before the prosecution calls any witnesses. By virtue of s 107 of the Criminal Procedure Act 2011, the defence may call a witness immediately after a prosecution witness (previously this only applied to expert witnesses). This provision is designed to assist the jury in building up a “story” about what happened and how the evidence fits together.

Section 84 of the Evidence Act 2006 further provides:

Examination of witnesses

(1) Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.

(2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Jury trials will still generally run according to the following sequence:

(a) After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof etc.
(b) The Crown then makes an opening address, in which the prosecutor will provide an explanation of the charge or charges, reiterate the burden and standard of proof and summarise the case against the defendant and the evidence that the Crown proposes to call.
(c) Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness in order to clarify or qualify any matter which was raised during the cross-examination (“re-examination”).
(d) If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury. In a few cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In most, however, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case.
(e) The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and re-examination as set out above.
(f) The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
(g) Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
(h) Finally, the judge sums up to the jury before it retires to consider its verdict.

It should be reiterated that the defence is not obliged to call any evidence. In the event that it does not do so, the trial proceeds immediately to closing addresses at the conclusion of the prosecution case. Should any hearing proceed without the defendant, s 124 Criminal Procedure Act 2011 outlines the applicable procedure to follow (for a brief discussion see Kumar v R [2013] NZCA 77).

Although this is the usual sequence, it may on occasions be varied. In particular, in jury trials, as mentioned above, it is becoming increasingly common for defence counsel to provide a brief statement of the issues in dispute in the case at the conclusion of the Crown opening and before the prosecution calls any witnesses, so that the jury is made rather more aware of what the case is about before it hears any evidence. In such cases, the defence is still entitled to make a full opening address at the conclusion of the prosecution case if it intends to call evidence.

The Criminal Procedure Act 2011 has repealed many of the traditional distinctions between summary defended hearings and jury trials. It provides for four categories of offence: judge alone trials for Category 1 and 2 offences (not punishable by imprisonment, or punishable by a maximum of less than 2 years’ imprisonment respectively); judge alone trials but with the ability for election of trial by jury for Category 3 offences (punishable by two years’ imprisonment or more); and Category 4 offences, a limited list of offences in schedule 1 of the Act that are tried by a High Court jury (unless a judge alone trial is ordered in long and complex cases/ cases involving issues of juror intimidation).

Question 18

What is Pre-Trial Disclosure?

Answer 18

The Criminal Disclosure Act 2008 codifies and reforms disclosure in all criminal proceedings (which includes charges before the Youth Court and appeals, but does not include matters ancillary to proceedings, such as applications for bail or name suppression). The Act has a four step regime: initial disclosure by the prosecution, full disclosure by the prosecution, defence disclosure and third party disclosure.

Question 19

What is Initial Disclosure?

Answer 19

Although it is useful to disclose as much as possible at an early stage, under the Act the requirement of initial disclosure (at the commencement of proceedings and no later than 21 days after commencement) is limited to:

• a summary of the facts of the prosecution case
• a copy of the charging document
• a summary of the defendant’s right to apply for further information before entering a plea
• the maximum (or minimum) penalty for an offence
• a list of known previous convictions
• a list of previous offences proved to have been committed by the defendant and of a kind to which s284(1)(g) of the Children, Young Persons and their Families Act 1989 applies.

The defendant may apply for further information after commencement of proceedings, which must be disclosed as soon as is practicable. This may include information such as:
• names of witnesses intended to be called by the prosecution,
• a list of the exhibits that are proposed to be produced on behalf of the prosecution at the hearing or trial;
• a copy of all records of interviews with the defendant
• a copy of all records of interviews of prosecution witnesses by a law enforcement officer that contain relevant information
• copy of job sheets and other notes of evidence completed or taken by a law enforcement officer that contain relevant information a copy of any records of evidence produced by a testing device that contain relevant information
• a copy of any diagrams and photographs made or taken by a law enforcement officer that contain relevant information and are intended to be introduced as evidence as part of the case for the prosecution
• a copy of any statement made by, or record of an interview with, a co-defendant in any case where the defendants are to be proceeded against together for the same offence
• a list of any of the above information that the prosecutor refuses to disclose to the defendant, together with the reason for the refusal; and (if the defendant requests) the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by sections 16, 17 and 18 (see below in Chapter 9) and there is no overriding public interest (re: s 18).

Question 20

What is Full Disclosure?

Answer 20

Under s 13 Criminal Disclosure Act 2008, full disclosure by the prosecution must be made as soon as reasonably practicable after a defendant has
• pleaded not guilty
• when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court.

All relevant information must be disclosed at this point, including (but not restricted to) “standard information” such as statements, briefs of evidence of prosecution witnesses, names and statements/ records of interview with those who the prosecution does not intend to call, information supplied by expert witnesses, convictions of prosecution witnesses, and lists of exhibits.

To comply with the rules for full disclosure, the prosecutor must also supply the defence with a list of relevant information that is not disclosed and the reason for the refusal.

The Criminal Disclosure Act 2008 defines the meaning of “relevant” under the Act:

8 Meaning of relevant

In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.

The Criminal Law Reform Committee in its Report on Discovery in Criminal Cases (1986) has stated that “it is not always easy, as some prosecutors have testified, to estimate what information will be useful to the defence nor to assess what material, in all fairness, ought to be disclosed”. The Police instructions on criminal disclosure advise that, when deciding whether information or an exhibit supports or rebuts the case against the defendant, prosecutors should consider whether the information or exhibit:
• will help or hinder the defendant’s ability to defend the charges;
• would or might detract from the prosecution case, or assist the defence, or incriminate another person.

These suggestions do not add to the statutory section, being simply reiterations of its content.

The instructions further advise that police must retain material or information which points towards a fact or an individual, casts doubt on the suspect’s guilt, or implicates another person.

The prosecution must allow inspection of exhibits when requested by the defence after full disclosure occurs, where the exhibits were listed under s 13(3)(e) or (f) in full disclosure. The inspection by the defendant is subject to any conditions that the prosecutor considers necessary for the purpose of:
• ensuring the security and integrity of the exhibit or otherwise maintaining its evidential value; and
• in the case of an exhibit needed for use on an on-going basis for law enforcement purposes, ensuring that the exhibit can continue to be used as such.

The inspection is also subject to any conditions imposed by the Court under section 31, should either party apply to the court for an order relating to conditions.

Furthermore, the prosecutor may refuse to allow the defendant to inspect an exhibit if it is needed for use on an on-going basis for enforcement purposes, and the imposition of conditions would not enable the inspection to take place without prejudicing on-going law enforcement. Disclosure and notification regarding conditions should be made to the defence as soon as is reasonably practicable.

In addition to the obligations entailed in full disclosure, the prosecution must disclose additional information requested by the defence unless the information is not relevant or the request appears to be frivolous or vexatious– this must be a request for particular information, not a general request.

Sections 15-18 Criminal Disclosure Act 2008 allow for withholding of information at all stages (initial, full and additional disclosure), if
• the prosecutor does not hold the information in recorded form or is not in possession or control of it (s 15)
• disclosure is likely to prejudice the maintenance of the law (s 16(1)(a))
• disclosure is likely to endanger the safety of any person (s 16(1)(b))
• it is material prepared to assist in the conduct of the trial/ prosecution (s 16(1)(c)(i))
• a communication dealing with matters relating to the conduct of the prosecution and is between the prosecutor and another person employed by the same person or agency that employs the prosecutor; or the prosecutor and any adviser to the prosecutor (s 16(1)(c)(ii))
• it is analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor (s 16(1)(c)(iii)
• it is material subject to non-disclosure under another enactment or disclosure would be contrary to the provisions of any other enactment (s 16(1)(d)-(f), s 16(1)(k)) (undercover officers (s 16(1)(d)), witness anonymity (s 16(1)(e)), witnesses’ (s 16(1)(f), s 17) or informant’s addresses (s 17), privilege (s 16(1)(j)).
• disclosure is likely to prejudice the security or defence of New Zealand or international relations (s 16(1)(g)(i)); or prejudice entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation (s 16(1)(g)(ii)).
• disclosure is likely to facilitate the commission of an offence (s 16(1)(h)).
• disclosure would constitute contempt of court or of the House of Representatives (s 16(1)(i)).
• the information is publicly available (s 16(1)(l)), has previously been made available to the defendant (s 16(1)(m)- for example under the Official Information Act 1982 or Privacy Act 1993) or does not exist/ cannot be found (s 16(1)(n)).
• the information reflects on the credibility of a witness who will not be called by the prosecution, but may be called by the defence and is not for any other reason relevant (s 16(1)(o)).
• the information would disclose a trade secret or prejudice the commercial position of the supplier of the information (unless it is in the public interest to disclose it) (s 18).
• If the prosecutor does withhold information, reasons must be given.

Any information that has been previously withheld should be regularly reviewed to determine whether circumstances have changed. If a change in circumstances means that the information should now be disclosed, that should be done as soon as is practicable.

There may also be requests for information made to police under the Official Information Act 1982 or Privacy Act 1993. Such information can be withheld if it is information that could be sought by the defendant or that has been disclosed to, or withheld from, the defendant under the Criminal Disclosure Act 2008. Requests for information should be considered under the Official Information Act 1982 or Privacy Act 1993 where the request takes place before the commencement of proceedings, where the request does not relate to criminal proceedings, or where the information is not covered by the Criminal Disclosure Act. Obligations under the Criminal Disclosure Act begin with the commencement of proceedings and continue for as long as information related to the proceedings is held.

Question 21

What is Disclosure by the Defence?

Answer 21

Generally the defence is under no obligation to disclose any part of its case to the prosecution. However, there are two exceptions:

• if the defendant intends to produce evidence in support of an alibi — that is, a claim that the defendant was somewhere else at the time of the alleged offence — he or she must give notice of the particulars of that alibi to the prosecution within 10 working days after a plea of not guilty.
• if the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report (or a summary if no brief or report is yet available) at least 10 working days before the date fixed for the trial (s 23 Criminal Disclosure Act 2008).

Question 22

What is Disclosure by non-parties?

Answer 22

The defendant may apply to the court for an order granting a hearing to determine whether a non-party should have to make a disclosure. This may be done at any time after pleading not guilty to a charge or after first appearance at Youth Court. The prosecution and the person alleged to hold the information may make written submissions to the court. A hearing will be granted if the information is likely to be held by a non-party and it appears to be relevant.

Once a hearing is granted, all those likely to hold the information, and those to whom the information relates, are served notice of the hearing. All of the people served notice can then make submissions or call evidence at the hearing. The Court may also grant leave to appear to any person who has an interest in whether the non-party disclosure should be made. The judge may order disclosure if satisfied that the information is relevant and that it is in the public interest to disclose it. The judge’s decision can be appealed by any person involved, including non-parties.

Question 23

What is the Effect of non-disclosure of information (s 34 Criminal Disclosure Act 2008)?

Answer 23

Where evidence sought to be adduced by a party is based on information that should have been disclosed but was not (e.g. alibi evidence), the court may exclude the evidence, adjourn the hearing, or admit the evidence (if it is in the interests of justice to do so). This applies to evidence adduced by both prosecution and defence.

Question 24

What is the comment on the Defendant’s Failure to Give or Offer Evidence?

Answer 24

The defendant does not need to give evidence and is not obliged to call any other evidence on his or her behalf. In the event that he or she does not do so, s 33 Evidence Act 2006 provides that:

Restrictions on comment on defendant’s right of silence at trial

In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

While the section prohibits the prosecution from making any comment (whether adverse or not), it gives the judge the discretion to do so. In practice, judges rarely comment on the defendant’s failure to give evidence. However, where a judge wishes to do so he or she must emphasise that the burden of proof still remains upon the Crown and must not leave the jury with the impression that if the defendant were innocent he or she would have given evidence. Beyond that, however, there is no precise rule determining what the judge is or is not entitled to say.

The 2006 Act also recognises an important aspect of the right of silence, as it applies to silence before trial in criminal proceedings. Section 32 provides that no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to statements or disclose a defence before trial (such as a refusal to answer questions in an investigative interview). In addition, the Judge must direct the jury that it may not draw an inference of guilt from such failure.

Question 25

What is the purpose of the Evidence in Chief?

Answer 25

The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness. There are a number of rules governing the way in which that evidence may be furnished:

• evidence must usually be given orally by a witness after he or she has taken the oath or affirmation;
• the ordinary way of giving evidence means that this will usually be in court, but “oral testimony” does not necessarily entail physical presence in court, since live, oral testimony may sometimes be given via closed circuit television or video-link;
• evidence in written form may be given where both parties consent.

Question 26

What is the Prohibition on Leading questions?

Answer 26

The general rule is that leading questions may not be asked during evidence in chief or re-examination. The Evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question. There is no comprehensive test for whether a question is leading, but examples include questions that seek a “yes or no” answer (for example, when a witness gives evidence of an assault, by asking “He hit you straight after dinner, didn’t he?”). Much will depend on what fact is in issue and what questions have already been asked.

The Evidence Act 2006 definition does not specifically include questions that assume the existence of a (disputed) fact about which the witness has given no evidence (for example “When did you start hitting your wife?”). However, this type of question is likely to be disallowed under s 85, which governs unacceptable questions.

The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:
• There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

The goal of examination in chief and re-examination is to draw out the witness’s own recollections and to permit the trier of fact to judge the quality of the witness’s testimony. It is very important that the evidence be given in the words of the witness and not that of the examiner. As the New Zealand Law Commission stated in The 2013 Review of the Evidence Act:

“The [s 89] prohibition [on leading questions] reflects the differing purposes of examination in chief and cross-examination. Examination in chief seeks to elicit the witness’s evidence; the general view is that this is best achieved through the witness giving evidence in their own words (rather than merely agreeing with examining counsel’s propositions) in court. Cross-examination, on the other hand, involves challenging a witness’s evidence. Leading questions provide a tool to do so.”

However, leading questions are statutorily permitted in examination in chief in some circumstances:

Section 89 - Leading questions in examination in chief and re-examination

(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or (c) the Judge, in exercise of the Judge’s discretion, allows the question.

(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.

As well as the provisions in s 89(1)(a) and (b), under s 89(1)(c) the judge may exercise discretion in order to allow a leading question that is not of an introductory or undisputed nature, and for which there is not the consent of all other parties. It is likely that leading questions may be allowed under s 89(1)(c) in the following circumstances:
• In order to direct the witness’ attention to the subject of identification evidence;
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question;
• To assist counsel in the examination in chief of very young persons, persons with difficulty speaking English, and persons who are unusually timid or of limited intelligence, especially where the questions are employed solely to permit the witness to provide clarification, correction or elucidation, although case law suggests that leading questions will not be the most appropriate way to question children: R v E [2007] NZCA 404.

• Where the witness has been declared hostile (see below).

Where an improper leading question is asked, s 8(1)(a) will be likely to govern admissibility. In any event, in jury trials the judge should direct the jury regarding the weight to be attached to the evidence. In exceptional cases, where a leading question was central to the case, (and particularly where no judicial direction was given), a conviction may be quashed on appeal.

Although leading questions are also prohibited during re-examination, they are permitted in cross-examination.

Question 27

What are the rules regarding “Refreshing Memories”?

Answer 27

By the time a case comes to trial it is not uncommon for witnesses to find that they cannot recall details or have gaps in their memory. The extent to which a witness is permitted to “refresh” or revive their memory by talking to others or referring to relevant notes and statements is governed by two sets of rules: one relating to refreshment of memory by reference to written documentation in court; and the other relating to refreshment of memory out of court. The Evidence Act 2006 regulates the refreshment of memory in court, but does not attempt to change the rules relating to refreshment of memory out of court.

(a) Refreshment of memory in court.

Where a written record of the details of an event was prepared by a witness at the time of its occurrence or shortly thereafter and includes details which the witness cannot now recall, it obviously makes sense to allow the witness to refer to that document in the course of evidence. This is generally permitted as “refreshing memory”, in recognition of the fact that trials often occur months or years after the event and that the memory of witnesses will have dimmed over time.

If a witness wishes to consult a document whilst giving evidence the following conditions, designed to ensure so far as possible the accuracy of the document, must be satisfied:
• The leave of the judge must be obtained
• The document must be shown to every other party in the proceeding
• The document must have been “made or adopted” by a witness “at a time when his or her memory was fresh” (s 90(5) Evidence Act 2006). Whether a document was made while the memory was fresh depends on the circumstances of the individual case. In Cameron v R [2010] NZCA 411, the Court stated that there is a non-exhaustive set of factors that can be considered, including the significance of the events to the witness; the time elapsed between the events and the making or adoption of the document; evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document. In Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23, the Court upheld a decision that a statement made 6 weeks after the event could still be a document made or adopted at a time when the witness’s memory was fresh.
• The document must have been made by the witness, or by another person acting on the witness’s behalf, in his or her presence and assented to by the witness.

Because the courts are acting on the fiction that the document is merely reviving the witness’s own memory, the evidence remains oral testimony. Section 90 governs the process of a witness refreshing memory while giving evidence, as opposed to the admissibility of the document used. The document will not normally become part of the actual evidence, although in some circumstances it may become admissible under s 35(3) (previous consistent statements rule, below). This will be the case where there is an inability to recall the evidence at all. The Law Commission has recommended, and Cabinet has approved, moving the text of s 35(3) into s 90. The proposal will become part of a bill to amend the Evidence Act.

A witness who wishes to refresh memory in court cannot consult a document excluded under ss 29 or 30 (statements influenced by oppression or improperly obtained evidence). In The 2013 Review of the Evidence Act 2006, the Law Commission concluded that it was “anomalous for s 28 to be treated differently from ss 29 and 30 …”, and it recommended extending the prohibition so that documents that have been excluded under s 28 are not available for use in questioning under s 90. Cabinet has approved this proposal, which will form part of a bill to amend the Evidence Act scheduled to be introduced later in 2014. There is no prohibition on consultation of documents excluded under any other provision of the Evidence Act 2006. However, such documents can only be “used” or “consulted” and may not be offered in evidence (therefore they cannot be admitted). It may also be that other statutory enactments may render it impermissible for a document to be used in a proceeding even where ss 90(1) or 90(2) do not apply. These other enactments could take precedence over s 90, by virtue of s 5 Evidence Act 2006.

(b) Refreshment of memory out of court.

Witnesses may, before they give evidence in court, refresh their memory by reference to briefs of evidence prepared on the basis of statements which they may have made some months before, or may check their recollection of events with the officer who interviewed them, and so forth. The documents which the witness uses to refresh his or her memory may have been made by either the witness or by someone else; the requirement is simply that the document relates to matters which are within the witness’s own knowledge.

It is often something of a misnomer in these situations to describe the witness as merely refreshing his or her memory. It is certainly impermissible for a witness to refer to a document, and use it as a basis for his or her evidence, when the witness has no recollection of matters to which the document refers at all. More frequently, however, the witness has some recollection of the event in question, but needs to refer to prior documentation to ascertain the details that have faded from memory. In this case, although it is both necessary and desirable that the witness be able to do so, it is somewhat artificial to describe the witness as reviving those details in his or her mind. Nevertheless, the courts persist with this notion and, because the testimony in court is regarded as based wholly on the witness’s own memory, the documents used cannot be admitted as evidence and cannot be the subject of cross-examination.

However, the courts have made it clear that when a prosecution witness has refreshed his or her memory prior to trial from a written statement, the defence should be advised of this and, if requested, a copy of the statement should be made available. In R v Jannings (1985) 1 CRNZ 618, the High Court extended this requirement to police officers refreshing memory from their notes prior to testifying. In R v Foreman [2008] NZCA 55, the Court of Appeal confirmed that the approach to refreshing memory out of court (before giving evidence) has not been changed by the Evidence Act 2006:

“The position prior to trial is uncontroversial and is unaffected by the Evidence Act 2006. The principle is that witnesses are free to use whatever means they choose to refresh their memories prior to trial, although the means used can affect the weight that is given to their evidence. It is perfectly permissible, for instance, for witnesses to re-read their briefs before trial. The brief may have been taken (say) five years earlier. That is why there is a salutary practice on the part of competent counsel of taking a brief in a witness’s own words – not in counsel’s translation- and requiring one’s own witness to sign the brief. Of course opposing counsel is perfectly entitled to explore what means, if any, were undertaken to refresh a witness’s memory and there has long been thought to be a discretion to order the relevant document to be produced to opposing counsel.”

Question 28

What is the “Previous Consistent Statements” rule?

Answer 28

Previous consistent statements are governed by s 35 of the Evidence Act 2006. Section 35 substantially alters the common law with regard to both the admissibility and use of a witness’s previous consistent statements. It provides that:

Section 35 - Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.

The basic rule is that a witness cannot give evidence about statements made prior to the trial that are consistent with the evidence given at trial, unless the exceptions contained in s 35(2) or (3) apply. This means that common law exceptions no longer apply — except to the extent they are preserved by s 35(2). However, what is said as part of the events in issue (what was known as the res gestae under the pre-Act law) is not excluded by the rule in s 35(1). If these are relevant they are admissible and not as an exception to the rule in s 35 (Hart v R (2010) 24 CRNZ 924; Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23).

“Consistent” does not simply mean the lack of inconsistency: there must be something in the witness’s testimony with which the previous statement is consistent. The witness must give original evidence as to what happened at the trial and cannot boost it by also repeating what he or she said happened at some earlier time.

This rule is based upon the premise that, while mere repetition of an allegation does not increase its truthfulness, the fact that it is repeated and heard on several occasions will give it greater impact. It should not therefore be put to the jury, since there is a danger that it will be accorded more weight than it warrants. The intention of the section is to prevent the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness’s consistency.

Difficulties with the application of s 35(1) have led to much discussion about reform and even a Law Commission recommendation to repeal the section completely. However, in a 2013 Cabinet paper, Cabinet has approved a less radical reform, that:

“[P]revious consistent statements [will] continue to be generally inadmissible unless:

13. 1 the statement responds to a challenge that will be made or has been made to the witness’s testimony, based on a previous inconsistent statement of the witness or a claim of recent invention on the part of the witness (e.g. the prosecution can respond to a defence claim that a witness has previously given a different version of events or has simply made up their story by providing evidence that the witness gave the same description to someone-else); or
14. 2 the statement forms an integral part of the event/s before the court; or
15. 3 the statement consists of the mere fact that a complaint has been made to the Police (or another prosecuting agency) in a criminal case. This would not include a description of the complaint that was made.”

This reform will be incorporated into an upcoming Evidence bill.

Question 29

What are exceptions to Section 35(2), Evidence Act 2006?

Answer 29

Section 35(2) sets out two exceptions to the general prohibition on previous consistent statements:

• A previous consistent statement will only be admissible to the extent that the statement is necessary to respond to a challenge to the witness’s 1.veracity or 2. accuracy.
• These challenges must be based on either a previous inconsistent statement or a claim of recent invention.

In Hart v R (2010) 24 CRNZ 924 at [36], the New Zealand Supreme Court (Tipping J) has stated that:

“[T]he first thing that must be shown by the party seeking to adduce a witness’s previous consistent statement under subs (2) is that there has been a challenge to the witness’s veracity or accuracy in a qualifying respect. It must have been suggested…that the witness is being untruthful or inaccurate in their testimony. Next it must be shown that it is necessary to admit the witness’s previous statement in order to respond to the challenge to the witness’s veracity or accuracy…The concept of necessity in this context means that it is necessary to admit the prior statement to do justice to the witness’s testimony in Court in light of the attack on that testimony…The touchstone is necessary extent of response, with relevance being implicit in the concept of necessity”.

In terms of veracity, it is likely that courts will be easily persuaded that s 35(2)’s trigger of a “challenge” has occurred. Any suggestion in cross-examination that the witness is lying or mistaken should be sufficient, provided that such suggestion is based on either a previous inconsistent statement or a claim of recent invention.

The judge will admit only as many previous consistent statements as is “necessary” to respond to the challenge to accuracy or veracity, thereby preventing multiple repetitive statements being admitted, which would undermine the general rule. The concept of necessity looks to the overall interests of justice, including fairness to the witness. In Rongonui v R [2011] 1 NZLR 23 at [4] , it was suggested that challenges to a complainant’s evidence, particularly on the question of consent in sexual cases, will generally amount to a claim of recent invention and will come within s 35(2). See also H v R [2012] NZCA 102.

Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence” (s7). Unlike the previous law, it does not purport to limit the use that can be made of the previous statement once it is admitted as evidence, and so it can be used to prove the truth of its contents (R v Barlien (2008) 23 CRNZ 1020. This has more recently been confirmed by the Supreme Court in Hart v R [2010] NZSC 91).

Question 30

What “unable to recall” evidence is able to be given under Section 35(3), Evidence Act 2006?

Answer 30

Although s 35(3) reads as an exception to s 35(1), if a witness is unable to recall the statement it is not really a “previous consistent statement”. In Hannigan v R [2013] NZSC 41, the majority of the Supreme Court noted that a previous statement not otherwise inconsistent with the witness’s testimony could be admissible under s 35(3)(b) if it provides details the witness cannot remember. Section 35(3) will apply to a case where the witness makes no attempt to refresh their memory but simply testifies that they cannot recall the information contained in the statement. There may be examples in which the witness has some imperfect recollection as opposed to an inability to recall the information — only the latter leads to admissibility under s 35(3).

Section 35(3)(a) imposes the prerequisite that the “circumstances relating to the statement” provide reasonable assurance that the statement is reliable.

Question 31

What is a Hostile Witness?

Answer 31

The party who has called a witness may often find that the witness fails to give precisely the evidence they expect. Although they may contradict that evidence by producing other witnesses with a different version of the facts, a party calling a witness is not generally permitted to examine the witness with leading questions, and they are not generally entitled to challenge the veracity of their own witness through cross-examination.

However, if the witness displays active hostility towards the party calling him or her, leave may be sought from the judge to declare that witness a “hostile witness”. If the application is granted, the witness may be asked questions in the manner of a cross-examination to the extent that the judge considers it necessary for the purposes of doing justice (see s 94). This may include leading questions, questions designed to probe the accuracy of memory and perception, questions as to prior inconsistent statements, and other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is “substantially helpful” in assessing the witness’s veracity).

A clear distinction must be drawn between unfavourable witnesses and hostile witnesses. Witnesses who simply fail to come up to brief may be unfavourable to the party calling them, but they are not necessarily hostile.

A hostile witness is one who (s 4)
• exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
• gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
• refuses to answer questions or deliberately withholds evidence.

Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding. For all three ways, there must be some additional indications to demonstrate that the witness may not wish to tell the truth, deliberately withhold evidence etc., for example demeanour, behaviour, or any other relevant issues. For example., in relation to the second bullet point above, hostility is not demonstrated by the mere fact that the witness has given evidence that is inconsistent with another statement he or she has made previously. An actual or apparent intention to be unhelpful to the party calling the witness must also be present. The Supreme Court noted in Hannigan v R [2013] NZSC 41 that an inconsistency — even a “stark” one — does not in and of itself necessarily demonstrate hostility absent further statements or conduct by a witness “suggestive of hostility”.

There is no rule restricting a party from calling a witness who is known to be hostile to that party (R v Vagaia [2008] 2 NZLR 516 at [22]).

Question 32

What is the purpose of Cross-Examination?

Answer 32

There are two purposes of cross-examination:
• to elicit information supporting the case of the party conducting the cross-examination;
• to challenge the accuracy of the testimony given in evidence in chief — for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony.

All parties other than the one calling the witness have the right to cross-examine. Thus, in trials involving multiple defendants, each defendant has the right to cross-examine the witnesses of both the prosecution and of co-defendant.

Cross-examination is subject to various statutory controls in the Evidence Act 2006: there are cross-examination duties in s 92, limits on cross-examination by parties in person under s 95 and the prohibition on unacceptable questions (s 85). In addition, leading questions asked in cross-examination of a witness who has the same, or substantially the same, interest in the proceeding as the cross-examining party may be limited by the Judge in the interests of justice (for example, to prevent a “sham” interrogation) (s 93).

Question 33

What is the Duty to Put the Case?

Answer 33

Whenever a party is intending to call evidence which will contradict the evidence in chief of a witness called by an opposing party, there may be an obligation to put that contradictory material to the witness during cross-examination, so that he or she has an opportunity to comment on it or explain it. However, there is no duty on counsel to cross-examine a witness for the opposing party on gaps or inconsistencies which will not be the subject of later contradictory evidence (R v Stojanavich [2009] NZCA 210):

Section 92 Cross-examination duties

(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

(2) If a party fails to comply with this section, the Judge may—
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.

The duty to cross-examine therefore arises when the four factors below are present:
• the topic of cross-examination is a significant matter;
• the matter is relevant and in issue;
• the matter contradicts the evidence of the witness;
• the witness must “reasonably be expected” to be in a position to give admissible evidence on the matter.

Question 34

What are Unacceptable Questions in Court?

Answer 34

Section 85 provides that:

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.

(2) Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the Judge may have regard to—
(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and
(c) the linguistic or cultural background or religious beliefs of the witness; and
(d) the nature of the proceeding; and
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

Section 85 gives the trial judge a wide discretion to control the nature of questions and the manner in which they are put. The discretion permits a judge to disallow an unacceptable question or to direct that a witness is “not obliged to answer” the question posed. Section 85 applies to all questioning of witnesses at all phases of a witness’s examination in court. However, s 85 will most typically be invoked to control cross-examination.

Question 35

What is Cross-Examination as to Prior-Inconsistent Statements?

Answer 35

Witnesses may be cross-examined as to prior inconsistent statements. Such statements may include both written and oral statements (for example, recorded on police job sheets).

The method by which witnesses may be cross-examined in this respect is now governed by s 96 of the Evidence Act 2006, which provide as follows:

96 Cross-examination on previous statements of witnesses

(1) A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.

(2) If a witness does not expressly admit making the statement and the party wishes to prove that the witness did make the statement,—
(a) the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing; and
(b) the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness’s testimony.

(3) If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the following rights of the defendant are not affected:
(a) the defendant’s right to make a no-case application; and
(b) the defendant’s rights in relation to the order of addressing the court.

While s 96 will mainly apply to cross-examination on a witness’s previous inconsistent statements, it is not restricted to inconsistent statements and covers any previous statement. The effect of the provisions in s 96 can be summarised as follows:

• A witness may be cross-examined about a previous statement, whether in oral or documentary form (both consistent and inconsistent), without either being shown the statement or having its contents disclosed by the cross-examiner (although the questioner may do so if he or she wishes). The cross-examiner must “adequately identify” to the witness “the time, place and other circumstances concerning the making of the statement”.
• If the witness does not admit to making the statement, the cross-examiner may wish to prove the statement, in which case s 96(2)(a) and (b) will apply. However, other exclusionary rules may stand in the way of proof of the previous statement.

Unless the witness accepts the prior inconsistent statement as true, evidence that it was made cannot be used as proof of the facts contained in it unless the evidence would otherwise be admissible (e.g., because it amounts to a confession by the defendant). The existence of a prior inconsistent statement merely provides a basis for challenging the witness’s veracity and undermining their current testimony. For the way the veracity rules work with regard to previous inconsistent statements, see the discussion of veracity in chapter 9 (Evidence (2)).

Question 36

What is Re-Examination, Evidence in Rebuttal and Recalling witnesses about?

Answer 36

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge.

Evidence called by either party in order to rebut something arising during the trial, after the completion of their own case, can only be admitted with the leave of the court. Evidence in rebuttal may be permissible up to the time when the jury retires.

In addition to evidence in rebuttal, a judge may recall a witness who has given evidence, where he or she considers that it is in the interests of justice to do so (s 99).

Question 37

Who can get Support and Assistance in Court?

Answer 37

The Evidence Act 2006 s 79 introduced an entitlement for complainants in criminal proceedings to have a support person present. This entitlement will apply regardless of the way in which the complainant gives evidence (for example, it will still apply should the complainant give evidence via closed circuit television). If the complainant wishes to have more than one support person present, the permission of the judge must be sought. Section 79 is not limited to sexual cases; rather, it applies for complainants in all criminal proceedings. Witnesses who are not complainants (including the defendant, should he or she give evidence) may apply to the judge for permission to have a support person near. Section 79 Evidence Act 2006 provides that:

Section 79 - Support persons

(1) A complainant, when giving evidence in a criminal proceeding, is entitled to have 1 person, and may, with the permission of the Judge, have more than 1 person, near him or her to give support.
(2) Any other witness, when giving evidence in any proceeding, may with the permission of the Judge, have 1 or more support persons near him or her to give support.

(3) Despite subsections (1) and (2), the Judge may, in the interest of justice, direct that support may not be provided to a complainant or to a witness by—
(a) any person; or
(b) a particular person.

(4) A complainant or other witness who is to have a support person near him or her while giving evidence must, unless the Judge orders otherwise, disclose to all parties as soon as practicable the name of each person who is to provide that support.
(5) The Judge may give directions regulating the conduct of a person providing or receiving support under this section.

The rationale for this provision is that having someone close by that the witness trusts will help him or her to give complete evidence. The function of support persons is to reduce stress and trauma for the witness. They are allowed merely to “support” the witness, not to prompt or advise. Section 79(5) allows the judge to give directions regulating the witness and/or their support person and how they may act.

The judge can direct “in the interests of justice” that support may not be provided to a complainant or witness. The direction may mean that no person will be allowed to support the complainant or witness, or that a particular person may not provide the support. This may occur, for example, to veto a public figure from acting as a support person where their support may affect the jury’s assessment of the witness’s veracity.

Question 38

Who is entitled to Communication Assistance?

Answer 38

Defendants and witnesses may also be provided with “communication assistance”, which is assistance that enables or facilitates communication with persons who do not have sufficient proficiency in the English language to understand and give evidence, or who have a communication disability. Communication assistance may include assistance such as provision of an interpreter, and any other mechanism or technological aid that can help witnesses and defendants to give or understand evidence.

The defendant in a criminal proceeding is entitled to communication assistance to enable understanding of the proceeding (regardless of whether the defendant gives evidence), and also to enable the defendant to give evidence should he or she elect to do so. This is in accordance with s 24(g) of the New Zealand Bill of Rights Act 1990, which provides that “everyone who is charged with an offence … shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court”. Communication assistance will not be provided should the judge consider that the defendant can understand the proceeding and/or understand and answer oral questions without the aid of communication assistance.

Witnesses are also be entitled to communication assistance in order to allow them to give evidence. It will be provided only in order to assist the witness to understand questions put orally and adequately respond to them. Witnesses other than the defendant are not entitled to communication assistance in order to help them to understand the proceeding outside of their giving of evidence. The defendant needs to understand what is being said in order to be able to participate in his or her own defence; other witnesses do not have the same claim.

Question 39

Why are there Alternative Ways to give Evidence?

Answer 39

On the application of a party, or on the judge’s own initiative, the judge may direct that a witness is to give evidence in chief and be cross-examined in an alternative way. This applies to all witnesses (including defendants) in any proceedings. Despite the use of the word “alternative”, there is no presumption in favour of the “ordinary” way of giving evidence – there is no default position (V v R [2011] NZCA 525).

The ability of the judge to direct that evidence be given in an alternative way is not affected by the provisions of the Courts (Remote Participation) Act 2010, which governs the use of audio-visual links for appearances of witnesses where there is the “ability to assess the credibility of witnesses” (see s 102A Evidence Act 2006).

Under s103(3) Evidence Act 2006, a direction may be made on any of the following grounds:
• the age or maturity of the witness
• the physical, intellectual, psychological, or psychiatric impairment of the witness:
• the trauma suffered by the witness
• the witness’s fear of intimidation
• the linguistic or cultural background or religious beliefs of the witness
• the nature of the proceeding
• the nature of the evidence that the witness is expected to give
• the relationship of the witness to any party to the proceeding
• the absence or likely absence of the witness from New Zealand
• any other ground likely to promote the purpose of the Act.

Furthermore, under s103(4) Evidence Act 2006, the judge must have regard to:
• the need to ensure the fairness of the proceeding that there is a fair trial
• the views of the witness
• the need to minimise the stress on the witness
• the need to promote the recovery of a complainant from the alleged offence
• any other factor that is relevant to the just determination of the proceeding.

Where an application is made for a witness to give evidence in an alternative way, the judge must give each party an opportunity to be heard in chambers; and may call for and receive a report from any person considered by the Judge to be qualified to advise on the effect on the witness of giving evidence in the ordinary way or any alternative way.

Where the judge is satisfied that the witness should be able to give evidence in an alternative way, he or she may direct that the witness gives evidence:
• while in the courtroom but unable to see the defendant or some other specified person (this will include methods such as use of screens and one way mirrors);
• from an appropriate place outside the courtroom, either in New Zealand or elsewhere
• by a video record made before the hearing of the proceeding.

This is a closed list of alternative ways. Any appropriate practical and technical means may be used to enable the Judge, the jury, and the lawyers to see and hear the witness giving evidence (the defendant should be able to see and hear the witness except where the Judge directs otherwise). If a witness anonymity order has been made, effect must be given to the terms of that order.

Under s 123, the judge must direct the jury that no adverse inferences should be drawn against the defendant where a witness has offered evidence in an alternative way. It has been held that a clear direction can reduce the risk that the jury considers that the complainant needed protection from the defendant (see Pillidge v R [2011] 194 for guidelines as to the content of directions).

Question 40

What special provisions are made for Child Witnesses?

Answer 40

Section 107 Evidence Act 2006 provides that where the proceeding involves a child complainant, the prosecution must apply to the court in which the case will be tried for directions about the way in which the complainant is to give evidence in chief and be cross-examined. The judge must have regard to the need to ensure the fairness of the proceeding and that there is a fair trial, the views of the complainant, the need to minimise the stress on the complainant, the need to promote the recovery of the complainant from the alleged offence, and any other factor that is relevant to the just determination of the proceeding (this can include a consideration of the way in which the child is likely to give the most reliable evidence).