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2. Define what is meant by unavailable witness s16(2)?

S16(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person-
(a) is dead, or
(b) is outside NZ & it is not reasonably practicable for him or her to be a witness, or
(c) is unfit to be a witness because of age or physical or mental condition, or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence


3. What is the test for admissibility under s43, EA 06?

Is whether the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have unfairly prejudicial effect on the defendant.


4. Fairness & General exclusion s8, EA 2006?

Even though evidence is relevant, it may be excluded if it would result in unfairness. Eg:
(1) Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
(2) 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.


1. Are all people eligible and compellable to give evidence?

A witness is eligible if they are lawfully able to give evidence on behalf of both the prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn they are under a compellable obligation to answer all the questions put to them.
As a general proposition all people are eligible and compellable to give evidence.


6. Judicial notice – s128 & s129, EA 2006.

When a Court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.

Eg: Rather than calling an expert witness to swear Christmas is on 25 December, judicial notice would be taken of the date

S128 – is concerned only with facts that are facts in issue or relevant to a fact in issue.

S129 – Codifies the common law exception to the hearsay rule that admitted accredited histories, scientific works and maps may be admitted as evidence in order to prove facts of a public nature.


7. In deciding whether to give permission for the prosecution to question the defendant about their veracity, the Judge may consider

(a) S38(3)(a) 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.
(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence.
(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.


5. Balance of probabilities.

Miller v Minister of Pensions – 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. If the probabilities are equal, the burden is not discharged.


8. Under s16(1), a business record means a document that is made:

a business record means a document that is made:

(1) To comply with a duty or in the course of a business, and as a record or part of a record of that business.
(2) from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the Court to have had, personal knowledge of matters dealt with in the information he or she supplied.


10. CORROBORATION S121, EA 2006’

(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to the offences of –
​(a) perjury (s108, C.A 1961)
​(b) false oaths (s110, C.A 1961)
​(c) false statements or declarations (s111, C.A 1961)
​(d) Treason (s73, C.A 1961)



(1) Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s77)
(2) Witnesses under the age of 12 must:
• Be informed by the judge of the importance of telling the truth and not telling lies; and
• After being given that information, make a promise to tell the truth, before giving evidence.


9. Privilege s59(1)(b) **drug dependency or any other condition or behavior that may manifest itself in criminal conduct

S59(1)(b) – This section does not apply in the case of a person who has been required by an order of a judge or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination test or for any other purpose.


12. s35(3), EA 2006’ – Previous Consistent Statements rule.

S35(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


Explain the two prongs of relevance?

Materiality asks whether the evidence in the case is offered on a matter or a fact at issue ( of consequence to the determination of the proceeding s7 (3))

Probativeness asks whether the evidence has a logical "tendency to prove or disapprove" the material proposition on which it is offered s 7(3)