Evidence Exam Cheat sheet PDF

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Very helpful cheat sheet providing key provisions and cases of topics covered throughout the whole course....

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Hearsay LEGISLATION S17 – Hearsay rule A hearsay statement is not admissible except – (a) As provided by this subpart or by the provisions of any other Act; or (b) In cases where – (i) This Act provides that this subpart does not apply; and (ii) The hearsay statement is relevant and not otherwise inadmissible under this Act

S18 – General admissibility of hearsay (1) A hearsay statement is admissible in any proceeding if – (a) The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and either – (i) The maker of the statement is unavailable as a witness; or (ii) The judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness. S16 – Interpreation of hearsay evidence Circumstances, in relation to a statement by a person who is not a witness, include – (a) The nature of the statement; and (b) The contents of the statement; and (c) The circumstances that relate to the making of the statement; and (d) Any circumstances that relate to the veracity of the person; and (e) Any circumstances that relate to the accuracy of the observation of the person (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 New Zealand and 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 Business record – (a) Means a document – (i) That is made – (A) To comply with a duty; or (B) In the course of a business, and as a record or part of a record of that business; and (ii) That is made 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 the matters dealt with in the information he or she supplied; but (b) Does not include a police record that contains any statement or interview by or with an eyewitness, or a complainant, or any other person who purports to have knowledge or information about the circumstances of alleged offending or the issues in dispute in a civil proceeding.

S19 – Admissibility of hearsay statements contained in business records (1) A hearsay statement contained in a business record is admissible if – (a) The person who supplied the information used for the composition of the record is unavailable as a witness; or (b) The judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or (c) The Judge considers that undue expense or delay would be caused if that person were required to be a witness. S22 – Notice of hearsay in criminal proceedings (1) In a criminal proceeding, no hearsay statement may be offered in evidence unless – (a) The party proposing to offer the statement has complied with the requirements of subsection (2), (3) and (4); or (b) Every party has waived those requirements; or (c) The Judge dispenses with those requirements (2) A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating – (a) The party’s intention to offer the hearsay statement in evidence; and (b) The name of the maker of the statement, if known…; and (c) If the hearsay statement was made orally, the contents of the hearsay statement; and (d) If section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and (e) If section 19 is relied on, why the document is a business record; and (f) If section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and (g) If section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness; and (h) If section 19(1)(b) is relied on, why no useful purpose would be served by requiring the person to be a witness; and (i) If section 22A is relied on, why the 3 matters comprising the required threshold in that section are satisfied. (3) If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained. (4) The requirements of subsection (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.

CASES R v Kereopa HC Tauranga CRI-2007-087-000411, 11 February 2008 The respondent (Kereopa) is charged with Facts Statement cannot be cross attempted murder. One of the eye examined as witness is . witnesses, on whose testimony the Crown intended to rely on at trial has died. She dead = cannot be shown to made a written statement to police which be reliable as per s 18(1)(a) the Crown wants to use = not admissible  Admissibility issue.  Whether, pursuant to s18(1)(a), Issues the circumstances relating to  Touched more on in Bishop. 

Relevant Law

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Held

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the statement provide reasonable assurance that the statement is reliable. Main concern for Defence is that “there can be no assurance as to the reliability of the statement because of the inability to test it by crossexamination.

The inability to cross examine a witness can lead to an ‘unfair trial’ for the defence.

“Duty set out in s8 of the Act would require consideration of whether the probative value of the evidence contained in the statement would have an unfairly prejudicial effect on the proceeding (s8(1)) taking into account the right of the defendant to offer an effective defence (s8(2)).” At [4] “He argued finally, that the probative value of the statement was not outweighed by the risk that it would have an unfairly prejudicial effect…[however] its significant probative value meant that any prejudice was not unfair.” At [18]. “…the requirement that a judicial warning is necessary, where a case against an accused depends wholly or substantially on visual identification evidence” at [31]

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In order for hearsay to be admissible the Judge needs to ensure that it would not have an unfairly prejudicial effect on the proceedings – specifically the defendants right to a fair trial If its reliable to the statement then the probative value outweighs the prejudice. There is a risk of a serious miscarriage of justice when relying on visual identification evidence so the Court must take great caution.

Crown application is accordingly dismissed. Because “there cannot be reasonable assurance that the statement is reliable for the purposes of s18(1)(a) in the circumstances of this case.” At [31]

Bishop v Police HC Gisborne CRI-2008-416-3, 28 February 2008 Facts

Bishop was convicted on charges of assault with intent to injure, assaulting a female and indecent assault. The prosecution relied on a written statement by the complainant that was made on the evening of the incident and prior to the hearing admitted it as hearsay evidence because the complainant could not be found, and was therefore unavailable to give oral evidence.

Statement maker could not be found and could not be cross examined to test the reliability of the hearsay = Hearsay statement aligned with evidence provided by another witness who was capable of being crossexamined = hearsay was

Issues

Relevant Law

Held

R v Rosieur [2019] NZHC 959

The defendant raises two issues. 1. Argues that the probative value of the statement was outweighed by the risk that it would have an unfairly prejudicial effect on the proceeding. 2. Argued that the Judge placed too much weight on the statement.  “in addition to the requirements of s18, the Court is required to have regard to the exclusionary principles set out in s8” at [10]  “As a result, the Court may only permit a hearsay statement to be admitted as evidence in a criminal proceeding if it is satisfied: (a) That the notice requirements under s22 have been met; and (b) That the circumstances relating to the statement provide reasonable assurance that the statement is true; and (c) That undue expense of delay would be caused if the maker of the statement were required to be a witness; and (d) That the probative value of the statement is not outweighed by the risk that the statement would have an unfairly prejudicial effect on the proceeding (taking into account the right of the defendant to offer a defective defence) or that it would needlessly prolong the proceeding.” At [12]  “It recognises that the admission of hearsay evidence in any form is likely to create some risk of prejudice. The risk of prejudice alone, however, is not sufficient to require the Court to exclude the evidence. Instead, the prejudice must carry with it a risk of unfairness.” At [32]  “In a case where it is not possible to cross-examine a witness if the Court is going to accept beyond reasonable doubt the allegations contained therein, particularly when challenged, the Court must look for other evidence to determine whether or not reliance should be placed on the statement” at [59]  Appeal was dismissed. Hearsay evidence was deemed admissible. Judge was found correct in his findings.

admissible  D argues that according to the ‘mandatory provisions’ of s8 the Judge should of excluded the statement even if it would otherwise have been admissible.

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Sets out the process in you need to look at in order to determine if hearsay evidence is admissible. Focus on the circumstances of each case, as each case is different. Analysis on the significance of cross examining: “Any restriction on the ability to cross-examine the witness in those circumstances is liable to create a substantial risk of unfair prejudice. This flows from the fact that the ability to demonstrate, through crossexamination, that the evidence of the witness is wrong or unreliable forms an extremely important component of offering an effective defence.” At [25] “It is also important under NZ law to consider whether the inability to cross examine the maker may prejudice the defence.” At [27] If there is independent evidence that supports the reliance of the hearsay statement when it is not possible for cross examination, then that needs to be examined and seeked out where possible. Eg in this case the independent evidence is from Mr Baker which is consistent with the statement from the complainant. If there is admissible evidence that suggests that they hearsay evidence is unreliable, then that needs to be taken priority over the hearsay (Kereopa).

Facts

Issues

Three defendants were found guilty of arson to a wharenui in 1987. Two of the witnesses are dead but the Crown applies to use their evidence in the 2019 case.

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Issue in dispute = identity: whether M Rosieur were the people who burnt down the wharenui. The issue of identity is inherent in their denial of charges. NOTE that when identity is in issue (“it wasn’t me”), issue of opportunity and motive frequently arise.

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Whether the circumstances provide reasonable assurance that the statements are reliable Whether the evidence should be excluded under s8 because its probative weight is outweighed by its unfairly prejudicial effect

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Relevant Law

Held

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Mrs R statement contains (circumstantial) evidence of facts that could tend to prove or disprove that the defendants were in vicinity of the fire at or around the time of the fire (ie opportunity). That goes to the issue of identity and the statement was admitted The step mothers statement contains evidence that goes to motive and can tend to prove or disprove whether the defendants were the persons who committed arson. That goes to the issue of identity and the statement was admitted

“The test under s18(1)(a) is a threshold test” at [11]

The application to admit the hearsay statements of two witnesses and decline one.

R v Gwaze – established all 5 circumstances s 16(1) must be considered when considering admission or exclusion of hearsay. If s 18 applies (reliable statement). 1. Nature/type of statement  Written or oral, formal, recorded in some way, signed or witnessed, first-hand? Etc  E.g. R v Key - multiple mediums; Preston v R - dying declaration; K v R - terminally ill, formal statement. 2. Contents of statement  Level of detail, degree of consistency (R v Kereopa), selfserving, is their other evidence in support?

3. Circumstances relating to making  Physical circumstances, age and freshness, spontaneous or prompted, relationship between maker and receiver, knowledge of import? etc 4. Circumstances relating to veracity of maker  Evidence relevant to assessing veracity (truthfulness) of the maker must also meet the veracity test (s 37) of “substantial helpfulness”. 5. Circumstances relating to accuracy of observations  Usual indicia of reliability/accuracy of observations - sobriety, memory, other evidence in support?  If also VIE will need to be admissible under s 45 - Evidence may still be excluded under s 8 if crucial piece of evidence and lack of opportunity to XE will hinder effective defence (Reynolds v R; R v Kereopa).

Improperly Obtained Evidence LEGISLATION S30 – Improperly obtained evidence (1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if – (a) The defendant…against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or (b) The judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue. (2) The Judge must – (a) Find, on the balance of probabilities, whether or not the evidence was improperly obtained; and (b) If the judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice. (3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following: (a) The importance of any right breached by the impropriety and the seriousness of the intrusion on it: (b) The nature and quality of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith: (c) The nature and quality of the improperly obtained evidence: (d) The seriousness of the offence with which the defendant is charged (e) Whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used: (f) Whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant (g) Whether the impropriety was necessary to avoid apprehended physical danger to the police or others (h) Whether there was any urgency in obtaining the improperly obtained evidence (4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety. (5) For the purposes of this section, evidence is improperly obtained if it is obtained – (a) In consequence of a breach of any enactment or rule of law by a person to whom s3 of the NZBORA 1990 applies; or (b) In consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or (c) Unfairly (6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice. Things to remember  S30 is only relevant to consideration of evidence offered by the prosecution

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The standard of proof is a balance of probabilities. There is no middle ground.

Causation  There needs to be a causative link between the impropriety asserted and the obtaining of the evidence  Eg. In R v Hennessey [2009] NZCA 363 the Police officer had misled the defendant into believing the case against him for an assault was so strong that he should confess. Here, the obtaining of the confession was clearly linked to the improper pressure placed upon the defendant, by means of the Police officer’s portrayal of the strength of the case as put to the defendant. Hamed v R principles  Where actions are not prohibited by law, police freedom to act is more restrictive than that of individual citizens  Intrusive searches not to be treated as implicit in general statutory policing powers  Warrants issued for “things” on the land must be there at the time of issue not believed to be there or will be there  NZBORA values certainty and predictability  There is no statutory authority authorising covert filming as a police investigatory technique  The real intention behind the stated investigatory technique will be what is looked for. In Hamed, the SC discerned that intention to be the filming of people not things.  Police action in retaliation to search and seizure does not include Police retrieving an object that they themselves have placed on the land  Under s21 of NZBORA, the questions to ask are: 1. Was what occurred a search or seizure 2. If it is a search or seizure, was it unreasonable? If the answer to the above is yes, then there will be a breach of s21. There is no need to look to s5 NZBORA as it cannot be considered to be justified.  The reasonable expectation of privacy is a test both for what constitutes “a search” and for its reasonableness  A breach of s21 in terms of unlawfulness will normally result in a conclusion of unreasonableness unless technical or minor or perhaps where the police believe they are acting unlawfully  An expectation of privacy will not be reasonable unless: 1. A person complaining had a subjective expectation at the time of the police activity; and 2. Society recognises it as reasonable

Hamed v R [2011] NZSC 101 There were three general sources of evidence obtained through an investigation

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The Court was unanimous in holding that all this evidence

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The covert surveillance filming had been unlawfully obtained

by police of suspected offending on Tuhoe iwi land. It included:  Covertly filmed surveillance of the activities of the defendants on the land (obtained by stationary video cameras installed by the police)  Film of vehicles passing on a road (Reid Road). This film had been taken from the land adjoining the road.  Real evidence (physical items) obtained following entries by the police were made pursuant to search warrants issued under s198 of the Summary Proceedings Act 1957.

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One important distinction relied on by some members of the Court was between those defendants who faced charges for participation in an organised group and possession of firearms, and those who had been charged only under the Arms act. Differing views were expressed by members of the Court as to the effect that this distinction had on the particular “balancing factor” set out in s30(3)(d), namely the “seriousness of the offence with which the defendant is charged”

had been unlawfully obtained as all of the police entries onto the lan...