Evidence Notes.docx

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Richard Mahoney

LAWS 314 Law of EvidenceOUTLINE 1 A Operation of the ActSections 5 6 1012 Most of the classic rules of Evidence are specifically worded to only apply in certain circumstances This includes proceedings This is defined in s4 and it is unlikely to involve a tribunalPOINTS 1 Within the Evidence Act there is no obvious attempt to govern a tribunal 2 Although there is no attempt to govern tribunals there are provisions in the Evidence Act that do not have this specific focus on proceedings However it is still unclear or unlikely that it will extend to tribunals this is because everyone knows that Tribunals are left to their ownExamplea The hearsay rule s17 is not tied to proceedings and it can be used for a Tribunal because it is not excluded s18 however is restrictedb Finger print identification s140 is not tied down to a proceeding thus can govern anybodyQUESTION How far does the Act extend See the Outline page 1 for the sections of strange Acts ie in the Childrens and Young Persons and their Families Act 1989 there is a section for evidence s195 Because of the situation in these cases the evidence rules may not be applied it may include evidence that is otherwise admissibleTherefore most tribunals have their own legislation thus the focus is on what happens in NZ Courts in a normal case1 Conflict with other acts and rules of the Courta Section 51 and 2 Section 51 If there is an inconsistency between the provisions of this Act and any other enactment the provisions of that other enactment prevail unless this Act provides otherwise IMPORTANTR v Pope 2008 NZCA 284 CM 9 Hearsay case In the misuse of drugs proceedings the Crown had to prove that the thing was an illegal drugusually they are allowed a certificate from a professional stating that it is an illegal drug but this must be admitted 7 days hence 7 days noticeHere they did not conduct an analysis thus it was hearsay evidence The Crown wanted to rely on itbeing hearsay under the Evidence Act thus they only had to give reasonable notice which the Judge can dispense The DC held that this evidence was ok CA HELD This evidence was not admissible because of s51 of the Evidence Act The Misuse of Drugs Acttakes priority thus they must give 7 days notice of the certificate Note that the CA still upheld the conviction because the Police were able to give expert testimonySection 52 Despite subsection 1 if there is any inconsistency between rules of court made under any enactment with the concurrence of 2 or more members of the Rules Committee and this Act the provisions of this Act prevailThe focus here is on the High Court Rules When there is a conflict between the Evidence Act andthe procedural rules of the Court the Act takes priority There are no cases on this possibly because there were last minute amendments to the Evidence Actie s20 that largely take away the effect of s52 See High Court Rules 729 and 730Section 53 This Act applies to all proceedings commenced before on or after the commencement of this section except the continuation of a hearing that commenced before the commencement of this section and any appeal from or review of a determination made at a hearing of that kind This means that the Evidence Act will govern proceedings as long as there has not been a hearingWill it govern retrospectively Todd Pohokura v Shell 2008 18 PRNZ 1026 CM 3 Privilege CaseBefore the Act it was clear that the CL would recognize privilege regarding communicationbetween lawyers and their clients even in foreign countries But when the Act came into force there is a section that sets out lawyerclient privilege that does not extend to foreign communication Todd argued that the communication that they wanted disclosed was between a foreign lawyer andthe client this is not covered by the Evidence Act under s53 which governs the proceedings HELDDobson J s53 is only aimed at the evidence like procedural rules of evidence not the retrospective takingaway substantive rights it is not meant to retrospectively remove these rights Therefore the protection is not effectedSince then the Evidence Act has been amended and Countries have been specifically added toextend this privilege to Section 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 Some of these purposes are not really relevant ie a and f but the others are useful for usingImportant Sections for the Principles of the Evidence Act Section 7 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 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
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