#7969 - Introduction To Ethics - Evidence Law

Evidence: 2nd March: OUTLINE 1: INTRODUCTION s5 Application: (1) If there is an inconsistency between the Evidence Act and another act, the other act prevails. (2) If there is an inconsistency between the Evidence Act and the rules of court, the Evidence Act will prevail. S6 Purpose: - Help secure just determination of proceedings by: (a) Application of logical rules and; (b) Providing rules that recognise the importance of rights affirmed by NZBORA 1990; and (c) Providing fairness to parties and witnesses (d) Providing rights of confidentiality and public interest (e) Avoiding unjustifiable expense and delay s7 Fundamental Principle that all Relevant Evidence is Admissable: (1) All relevant evidence is admissable unless (a) Inadmissable under this or another Act (b) Excluded under this or another Act (2) If irrelevant, it is not admissable s8 General Exclusion: (1) 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 e.g. distasteful character of the accused that isn't directly relevant (b) Needlessly prolong the proceeding s10 Interpretation: (1) This act: (a) Must be interpreted in a way that promotes its purpose and principles; and (b) Is not subject to common law rules; and (c) May be interpreted having regard to common law rules If the common law is consistent with the provisions and purpose, it can be considered. S11 Inherent and Implied Powers not Affected: Powers of court are not affected by this Act. S12 Evidential Matters not Provided For: If no provision in this Act regulates the admission of some particular evidence... Look in materials. 4th March: In the Evidence Act now, a lawyer can be forced to disclose damaging confessions to save a wrongly accused. Is this ethical? NZ Code of Ethics - if judge does order you to disclose it, it is ethical. Operation of the Act: High Court rules, 729, 730 - In civil litigation, if uncontested application, you do it through affidavits not witnesses. The court can rely on an affidavit containing a belief, as long as grounds are given, i.e. court can rely on hearsay. Will this work with the Act? S5 says that the Evidence Act will take priority. S20 Evidence Act fixes this problem (late amendment). It gives the High Court priority over the Evidence Act in some situations, waters down s5. Many other provisions in other Acts say that the court can rely on evidence that would not usually be admissable in a court of law. This gives the judge a discretion to not rely on the rules of evidence. Pallin v Department of Social Welfare: - Court in this particular instance can rely on evidence that wouldn't be admissable in a court of law - Privilege is special though, law of privilege is not overridden. This case might be decided differently now because of s5 Evidence Act. Other Acts take priority ofver the Evidence Act - Could override privilege protection. S7 Fundamental Principle, s7(3) 'Relevant' defined as having a 'tendency' to prove or disprove something that is of consequence to the determination of the proceeding, material. RvR-- Cross examining a witness - want to damage their veracity Showing or offering evidence by cross examining them about their convictions. Crown witness, son of the accused. Cross examination revealed that the son hated his dad. He said he hated him so much that he committed crimes - indecent exposure and indecent assault. Judge wouldn't allow the defence to drag out the nature of these offences. S37(1) depends on whether the evidence about your veracity would be substantially helpful in determining that persons veracity. Stevens J also referred to the old law - degrees of relevance. When something isn't strongly probative, you can take into account other factors like fairness to the victim. This approach is just not available under the Evidence Act. S7 says nothing about taking into account other factors. S7 and s8 should always be read together. S8(1) says judge must exclude if probative value outweighed by risk it will have an unfairly prejudicial effect, could do it this way. Barlien: - Sexual assault - Victim A complains shortly after the assault - repeats this in court. - Evidence Act s35 says we only want to focus on what the witness says now, not what they said after the assault - can exclude? - Under old law it was routine to allow victim's previous consistent statement - Surely relevant what they say after offence s35 and s7 become inconsistent, as well as s6(c). But have to interpret s35 the way it reads. Veracity evidence is relevant. If relevant evidence is excluded for some reason, there should be a strong policy reason behind it. S17 Basic rule is that hearsay evidence is not admissable. If you want it admitted, have to give notice. Opinion evidence - s23 Evidence Act, basic rule excludes opinion evidence. Exceptions are available though. S25 - would the evidence of the expert be substantially helpful to the trier of fact? Evidence of propensity - Bad character evidence about the accused. Jury is not allowed to know this