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LAWGENRL 401: Evidence Short Notes Eligibility & Compellability Don Lye 1. Starng point is that prima facie, everyone is eligible and compellable; s 71. 2. Statutory excepons to eligibility and compellability; ss 72 – 75.  Judges in a proceeding are not eligible or compellable to give evidence in that proceeding; s 71(1).  Jurors and counsel in a procee

LAWGENRL_401_-_SN_-_Eligibility___Compellability.docx-LAWGENRL 401: Evidence Short Notes Eligibility

Evidence Notes: Emily James Full Evidence Notes: Semester 2, 2020 Introductory Principles 7 Note: Evidence Act, section 4 - Interpretation 8 Evidence Act, section 6 - Purpose 8 The Relationship Between the Evidence Act & the Common Law 8 Evidence Act, section 10(1) - Interpretation 8 Evidence Act, section 11(1) - Inherent & Implied Powers Not Affected 8 Evidence Act, section 12 - Evidential Matters Not Provided For 8 I. Relevance & Prejudice 9 Evidence Act, section 7 - Fundamental Principle That Relevant Evidence Admissible 9 Relevancy - two requirements: 9 Concept of admissibility v weight 9 About Image Ltd v Advaro Ltd [2018] NZHC 3002 10 Evidence Act, section 8 - General Exclusion for Unfair Prejudice 11 Bain v R, 24 CRNZ 436 (2009) 11 R v Paewhenua, [2017] NZHC 1773 12 Roberts v R, [2019] NZCA 502 13 Huljich v Huljich, [2018] NZHC 3029 13 R v R, [2019] NZSC 87 13 II. Propensity 15 Evidence Act, section 40 - Propensity rule 15 Evidence Act, section 41 - Propensity evidence about defendants 16 Evidence Act, section 42 - Propensity evidence about co-defendants 16 Evidence Act, section 43 - Propensity evidence offered by prosecution about defendants 16 Applying the Evidence Questions 18 Note: if you are the proponent of a piece of evidence, would you want it to be propensity? 18 Structure for approaching propensity evidence 19 Note: prejudicial effect - section 8(1)(a) v section 43(1) 19 Note: the need for jury directions 19 Fenemor v R, [2011] NZSC 127 20 R v McIntosh, [1991] 8 CRNZ 514 20 Snell-Scasbrook v R, [2015] NZCA 195 21 III. Veracity 22 Evidence Act, section 37 - Veracity rules 22 What is meant by veracity evidence? 23 Holland v R, [2010] NZCA 279 23 Love v R, [2019] NZCA 439 24 1 Evidence Notes: Emily James Evidence Act, section 38 - Evidence of defendant’s veracity 24 Carter v R, [2016] NZCA 629 25 Wi v R, [2009] NZSC 121 25 Wahina case 26 IV. Rape Shield 28 Evidence Act, section 44 - EVIDENCE OF SEXUAL EXPERIENCE OF COMPLAINANTS IN SEXUAL CASES 28 Evidence Act, section 4(1) 30 POLICY FOR RATIONALES section 44 30 EXCEPTIONS (ADMISSIBILITY OF EVIDENCE OF SEXUAL EXPERIENCE) 30 Evidence Act, section 40 - Propensity Rule 31 Case Law 31 B v R, [2013] NZSC 151 31 Sahib v R, [2015] NZCA 112 33 Singh v R, [2016] NZCA 552 33 Prior false complaints 34 Best v R,[2016] NZSC 122 35 Evidence Act, section 44A - APPLICATION TO OFFER EVIDENCE OR ASK QUESTION ABOUT SEXUAL EXPERIENCE OF COMPLAINANT IN SEXUAL CASES 36 V. Hearsay 38 Evidence Act, section 17 - Hearsay Rule 38 Evidence Act section 4(1) 39 R v Holtham - unanswered text messages 39 Lenohan case 2008 - automated box label 40 Dyer v R - text message 40 R v Liu - phone call 41 Charlton v R - text messages 42 Things which are not hearsay 43 Concept of double hearsay 43 Note: Section 18 - catch all exceptions 43 Hearsay Exceptions 44 Note: inadmissible hearsay 44 Note: Important matter of terminology 44 *Most important exceptions - sections 18 and 19 45 R v Gwaze (NZSC 2010) 45 Evidence Act section 18(1) - General Admissibility of Hearsay 45 Evidence Act section 16(2) - Interpretation 46 Evidence Act section 16(3) - Interpretation 46 Evidence Act section 4(1) - Interpretation 46 Unavailable witness examples: 47 2

LAWGENRL | 401 | Evidence | lecture notes | Evidence Notes: Emily James Fu

The issue is whether evidence of X can be admied 1. Whether evidence is relevant, and thus admissible under s7(3) 2. Whether, although relevant, evidence is inadmissible for unfair prejudice under s8 Relevance s7 Fundamental principle that relevant evidence admissible (1) All relevant evidence is admissible (2) Evidence that is not relevant is not admissible (3) Evidence is relevant in proceeding if it has a tendency to prove/disprove anything (probaveness) of consequence to the determinaon of the proceeding (materiality). 1. Is proposed evidence material i.e. relates to an issue of consequence in the case? a. Whether act happened, identy, intent, consent 2. Does evidence logically tend to prove proposion for which it is oﬀered? Probave? a. R v Bain : Relevance ends where speculaon begins . If disputed sounds cannot reasonably be taken to be speech, irrelevant because do not tend to proof of admission of guilt b. Wi v R : Low threshold: Whether evidence has any probave tendency - weight Q for jury c. R v Adamson : Evidence of stocking tops at D’s home show unusual tendency to value stocking tops  D’s possession of stocking tops suggests higher probability that he took stocking tops at murder scene  D more likely to be murderer d. R v Baker : Oﬃcer cannot shoot herself with gun  Oﬃcer has similar arm length to V  V could likely not shoot herself with gun  D likely lying about V shoong herself with gun e. Philadelphia : Gay people have a high incidence of AIDS  someone who has sex in a gay theatre is reckless  Becke has sex in gay theatre  Becke is reckless  people reckless in their personal lives are likely to be reckless at work  Becke was reckless at work and that’s why he was ﬁred Prejudice s8 General exclusion (1) In any proceeding, the Judge must exclude evidence if its probave value is outweighed (ie perfect balance evidence included) by the risk that the evidence will— (a) have an unfairly prejudicial eﬀect on the proceeding ; or  Concern is for prejudice that is illogical or irraonal - giving undue weight to evidence, feelings of contempt or horror provoking insnct to punish. Not concerned with legimate prejudice that is a natural consequence of compelling and highly probave evidence Weatherston, Warner (b) needlessly prolong the proceeding. (2) In determining whether the probave 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 eﬀecve defence (in cases where defence is arguing for evidence). Admissible  R v Warner : Evidence of $236k in cash found in Ds apartment in charge of supplying meth highly relevant. Any prejudicial eﬀect is due to strength of evidence - logical to ﬁnd supply  R v Weatherston : Photo evidence of nature and extent of wounds admissible as highly probave of targeng areas of beauty, defensive wounds , extent of aack. Photos are best evidence and prejudice is natural consequence of nature of wounds  R v Baker : Scalp and skull photos highly probave to crown contenon that husband beat wife before shoong her, and that husband therefore lying. Jury direcon suﬃcient to address any prejudice  R v Jobe : Details of scene important as show evidence of violent struggle , which is relevant to defense of manslaughter and intent. Also relevant to tesng D’s account of what happened. Good to allow technologically useful evidence, accurate. Videos should not dwell excessively on body or injuries, neutral factual commentary only, shot before anything moved, if parcularly horriﬁc then may be appropriate to mark body posion with chalk, or with injuries covered up Inadmissible  State v Poe : Colour photos of V, long-me resident, would cause signiﬁcant prejudice to D, who was new to small town. Not probave as identy and nature of death already established. Only purpose of photos would be to inﬂame jury; unfair where death penalty available

LAWGENRL | 401 | Evidence | lecture notes | The issue is whether evidence 

LAWGENRL 429_1205_ Exam Candidate 128890067 1/11 -- Subject code -- Evaluation type 11.11.2020 14:15 Test opening time 11.11.2020 16:30 End time -- Grade deadline 21.05.2021 12:38 PDF created Sarah Puett Created by CANDIDATE 128890067 TEST LAWGENRL 429_1205_ Exam LAWGENRL 429_1205_ Exam Candidate 128890067 2/11 THE UNIVERSITY OF AUCKLAND SEMESTER

LAWGENRL | 429 | Law of Family Property | exam | LAWGENRL 429_1205_ Exam Candid

EVIDENCE – ALYSIA GORDON General Exclusion – s 8 Evidence Act 2006 Gruesome pictures in murder trial not unfairly prejudicial just b/c graphic. Excluded if only for shock value & don’t add anything to case. Gun in stabbing murder = consciousness of guilt, inadmissible creates s 8(2) : if unfairly prejudicial to Crown case, can still be let in if critical to D’

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