Structure
*Part 1 — Preliminary provisions (s 6-15) *Part 2 — Admissibility rules, privilege, and confidentiality **Subpart 1 —Legislative features
Sections 1 and 2 relate to the title and commencement of the Act respectively.Preliminary provisions
Section 3 provides the Act binds the Crown. Section 4 defines terms used in the Act. Section 5 deals with the application of the Act. If there is an inconsistency between the Act and any other enactment, the other enactment prevails. However, if there is an inconsistency between the Act and the High Court Rules or the District Court Rules, the Act prevails. Section 6 sets out the purpose of the Act. Section 7 of the Bill deals with the principle ofAdmissibility rules, privilege and confidentiality
Hearsay evidence
Section 16 clarifies the meaning of the terms circumstances and unavailable as a witness. These terms are relevant to the exception to the hearsay rule which is stated in section 18. Section 17 states the rule against the admissibility of hearsay statements. The scope of the existing rule has been limited by the definition of hearsay statement in section 4, which limits hearsay statements to statements made by non-witnesses. Thus, under the Bill, it is not hearsay for a witness to recount in evidence what another witness said. Nor is it hearsay if a witness recounts his or her own out-of-court statements (but such evidence may be inadmissible on other grounds, for example under the previous consistent statements rule stated in section 35). Under section 17 a hearsay statement is not admissible except as provided by section 18 or by a provision in another Act, or if a provision of the Act makes the rule against hearsay inapplicable and the statement is relevant and otherwise admissible. Section 18 provides that a hearsay statement is admissible if, first, there is a reasonable assurance that it is reliable because of the circumstances that relate to it, and, secondly, if the maker of the statement is unavailable as a witness. The second condition may be waived if the Judge considers that undue expense and delay would be caused by requiring the maker of the statement to testify. This section codifies the common law exception created in the 1989 case ''Statements of opinion and expert evidence
Section 23 states the opinion rule, which is that statements of opinion are inadmissible except as provided by section 24 or 25. Section 24 enables any witness (whether an expert or not) to state an opinion in evidence if that is necessary for the evidence to be communicated or understood. For example, the speed at which a vehicle was observed to be travelling may be stated in evidence, even though that statement contains an opinion component. Section 25 makes opinions expressed by experts as part of expert evidence admissible if the Judge or jury is likely to obtain substantial help from them. It also clarifies that certain common law rules against the admission of expert evidence cease to apply. These are the rules that bar an expert from giving evidence on the ultimate issue to be decided by the Judge or jury, and from giving evidence on matters of common knowledge. The section also provides that, where experts base their opinions on facts outside their expertise, the opinions may be relied on only if the facts are proved or judicially noticed.Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings
Section 27 relates to criminal proceedings. The prosecution may offer evidence of statements made by the defendant if those statements are not excluded by the Judge because there is a question as to their reliability (section 28) or because there is a question as to whether they were influenced by oppressive conduct (section 29), or because they were improperly obtained (section 30). Section 28 deals with the case where the defence raises, on the basis of an evidential foundation, an issue about the reliability of a defendant's statement that the prosecution offers or intends to offer in the proceeding, or where the issue is raised by the Judge. In such a case, the Judge must exclude the statement unless satisfied that the circumstances in which the statement was made were not likely to have adversely affected its reliability. The standard to which the Judge must be satisfied is the balance of probabilities. Subsection (4) sets out a list of matters that a Judge must (if relevant) take into account for the purpose of applying the reliability test. The list does not preclude a Judge from taking other matters into account. The matters in the list, which must be taken into account, include any physical, mental, or psychological condition of the defendant at the time the statement was made, any pertinent characteristics of the defendant (for example, intellectual disability), the nature of any questions put to the defendant, and the nature of any threat, promise, or representation made to the defendant or any other person. Section 29 deals with the case where the defence raises, on the basis of an evidential foundation, the issue of whether a defendant's statement that the prosecution offers or intends to offer was obtained by oppressive, violent, inhuman, or degrading conduct or treatment or a threat of such conduct or treatment, or where the Judge raises the issue. In such a case, the Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by such conduct, treatment, or threats. For the purpose of determining whether the statement must be excluded, it is irrelevant whether or not the statement is true. Subsection (4) sets out a list of matters that a Judge must (if relevant) take into account for the purpose of applying the reliability test. The list is the same as that set out in section 28(4). Section 30 deals with the case where the defence raises, on the basis of an evidential foundation, the issue of whether evidence that the prosecution offers or intends to offer was improperly obtained, or where the Judge raises the issue. The section applies not only to statements, but also to documents and things that may have been improperly obtained. Improperly obtained means obtained as a result of a breach of any enactment or rule of law by a person bound by thePrevious consistent statements made by witness
Section 35 makes a statement that a witness previously made out of court inadmissible if the statement confirms the evidence the witness gives in court. This rule is subject to 2 exceptions. First, a statement of that kind is admissible to rebut a challenge to the witness's veracity or accuracy. Secondly, a statement of that kind is admissible if the witness is unable to recall the matter to which the evidence relates or whose recall of the matter is imperfect if the circumstances relating to the statement provide a reasonable assurance that it is reliable.Veracity and propensity
Section 36 concerns the application of this subpart. The section clarifies that the restrictions on giving evidence about a person's veracity do not apply if the alleged lack of veracity on the part of a defendant is an ingredient of the prosecution (as in a prosecution for perjury) or civil action (as in an action for malicious falsehood). Section 37 precludes evidence about a person's veracity from being given in criminal or civil proceedings unless the Judge decides that the evidence is substantially helpful. The section sets out several factors that the Judge may, among others, consider in making that assessment. These include, for example, whether the proposed evidence tends to show a lack of veracity because of relevant offending or previous inconsistent statements or because of the person's reputation as an untruthful person. The section also prevents a party from challenging the veracity of the party's own witness unless the witness is declared hostile by the Judge. Section 38 relates to criminal proceedings. Subject to the test of substantial helpfulness set out in section 37, the defendant may offer evidence about his or her veracity. If the defendant does so, the Judge may permit the prosecution to offer veracity evidence about that defendant. Section 39 relates to criminal proceedings against multiple defendants. A defendant may give evidence about his or her co-defendant's veracity only if that evidence is relevant to a defence to be raised by the defendant and if prior notice of the proposed evidence has been given to all co-defendants. The notice requirement may be waived by the Judge or the co-defendants. Section 40 sets out the general rule that propensity evidence (that is evidence that a person tends to act in a particular way or to have a particular state of mind) may be given in a civil or criminal proceeding. That rule is subject to the exceptions set out in sections 41 to 44. Section 41 relates to criminal proceedings. A defendant may offer propensity evidence about himself or herself. If the defendant does so, the Judge may permit the prosecution to offer propensity evidence about that defendant and, in that case, the prosecution is not subject to the restrictions imposed by section 43 on propensity evidence led by the prosecution. Section 42 relates to criminal proceedings against multiple defendants. A defendant may give propensity evidence about a co-defendant only if that evidence is relevant to a defence to be raised by the defendant and if prior notice of the proposed evidence has been given to all co-defendants. The notice requirement may be waived by the co-defendants or by the Judge. Section 43 sets out the restrictions that apply to propensity evidence offered by the prosecution in a criminal proceeding. Such evidence is admissible only if it has a probative value which outweighs any unfairly prejudicial effect on the defendant. The section specifies several matters that the Judge may consider among others. The specified matters include the frequency of the alleged conduct, the timing of the conduct, the similarity between the conduct and the offence charged, the number of persons making allegations against the defendant and the risk of collusion or suggestibility, and the extent to which the conduct and the offence charged are unusual. When assessing the prejudicial effect of propensity evidence on the defendant, the Judge must consider, among many other matters, whether the evidence is likely to unfairly predispose the jury against the defendant, and whether the jury will tend to give disproportionate weight in reaching its verdict to evidence about the defendant's previous conduct. Section 44 protects complainants in prosecutions for sexual offences from certain questions and evidence about their sexual experience and reputation. The starting point is to exclude evidence or questions that relate to the complainant's reputation in sexual matters or to the complainant's sexual experience with a person other than the defendant. However, the Judge may permit any evidence or a question about that experience if satisfied that it would be contrary to the interests of justice to exclude it because of its direct relevance to the facts in issue or to the question of the appropriate sentence. Section 44A provides no evidence of a complainant's sexual experience may be offered in a criminal proceeding unless the other parties have been given notice of the proposed statement or if every other party has waived the notice requirements or if the Judge dispenses with those requirements. The section also sets out the notice requirements for evidence proposed to be offered in criminal proceedings.Identification evidence
Section 45 relates to criminal proceedings in which evidence about previous visual identifications of an alleged offender obtained by officers of an enforcement agency is proposed to be given. Such evidence is admissible if a formal procedure was followed or there was good reason for not following it unless the defendant proves on the balance of probabilities that the evidence is unreliable. If, without good reason, a formal procedure was not followed, the evidence is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances of the identification were likely to have produced a reliable identification. Section 46 relates to criminal proceedings in which voice identification evidence is proposed to be offered by the prosecution. Such evidence is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances of the identification were likely to have produced a reliable identification.Evidence of convictions and civil judgments
Section 47 provides that in a civil proceeding proof of a person's conviction for an offence is conclusive proof that the person committed the offence unless, in exceptional circumstances, the Judge permits a party to offer contrary evidence. Section 48 provides that if a proceeding for defamation is based on a statement that a person has committed an offence, proof of the person's conviction for the offence provides conclusive proof that the person committed the offence. Section 49 makes evidence of a person's conviction generally admissible in criminal proceedings and proof of the person's conviction for an offence is conclusive proof that the person committed the offence unless, in exceptional circumstances, the Judge permits a party to offer contrary evidence. A party who wishes to offer evidence of a person's conviction must first tell the Judge why the evidence is to be offered. Section 50 provides that a judgment in a civil proceeding is not admissible in another proceeding to prove the existence of a fact established by that judgment.Privilege and confidentiality
Section 51 defines the term legal adviser for the purposes of this subpart. The term includes a registered patent attorney, but the services of a registered patent attorney that give rise to legal professional privilege are restricted by section 54(2). It is also made clear that, for the purposes of the subpart, a reference to a communication or to information includes a reference to a communication or information contained in a document. Subsection (3) sets out a special meaning of the term information for the purposes of section 60 to 63. The effect of the definition is to exclude from those clauses (which relate to the privilege against self-incrimination, the discretion as to incrimination under foreign law, and the replacement of the privilege against self-incrimination in the case of Anton Piller orders) documents created before the person concerned is required to provide information. The section also provides that privileged communications may be made and received by authorised representatives. However, this does not apply to the privilege for communications with ministers of religion, the privilege for information obtained by medical practitioners and clinical psychologists, or the privilege for informers. Section 52 provides procedural mechanisms for the protection of privileged information. Section 53 describes the effects of various privileges. If the privilege is in respect of a communication (such as the privilege for communications with legal advisers) the privilege holder has the right to refuse to disclose the communication in a proceeding as well as any information contained in the communication and any opinion formed by a person that is based on the communication or information. If the privilege is in respect of information or a document, the privilege holder has the right to refuse to disclose in a proceeding the information or document and any opinion formed by a person that is based on the information or document. In the case of a privilege in respect of a communication, information, opinion, or document (other than the privilege against self-incrimination) the privilege holder may require that the communication, information, opinion, or document not be disclosed in a proceeding by the recipient of the communication or the information, or by the person who gave the opinion or prepared the information or document or by any other person who has received the privileged material with the authority of the privilege holder, in confidence and in relation to the circumstances that have given rise to the privilege. But the class of person barred from disclosing privileged material may be extended by the Court. Section 54 provides a privilege for clients of legal advisers in confidential communications made for the purpose of obtaining or providing professional legal services. By virtue of section 54, the right not to have such communications disclosed is limited to proceedings. The corresponding legal professional privilege recognised by the common law also protects such communications from disclosure in other situations. Section 55 excludes accounting records relating to solicitors' trust accounts or nominee companies from the ambit of the privilege conferred by section 54. Section 56 gives a person who is, or on reasonable grounds contemplates becoming, a party to a proceeding, a privilege in respect of communications or information made, received, compiled, or prepared for the dominant purpose of preparing for the proceeding. The privilege may be displaced in the case of a proceeding under Part 2 of theTrial process
Eligibility and compellability
Section 71 sets out the general rule governing the eligibility and compellability of witnesses to give evidence. In general, any person is eligible to give evidence in a civil or criminal proceeding and can be compelled to give that evidence. Section 72 to 75 set out a number of exceptions to the general rule. Section 72 provides that a person acting as a Judge in a proceeding is not eligible to give evidence in that proceeding. It also provides that except with the permission of the Judge a person who is acting as a juror or counsel in a proceeding is not eligible to give evidence in that proceeding. Section 73 provides that a defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding. An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless the associated defendant is being tried separately from the defendant or the proceeding against the associated defendant has been determined. Section 74 provides that theOaths and affirmations
Section 77 requires a witness aged 12 years or over to take anSupport, communication assistance, and views
Section 79 makes provision for support persons for complainants, child witnesses and other witnesses in criminal proceedings, and regulates their conduct. Sections 80 and 81 describe when communication assistance is to be provided to a defendant in criminal proceedings, and regulate the provision of that assistance. Section 80(5) proves that wilfully giving false or misleading statements by a person providing communication assistance amounts toQuestioning of witnesses
Section 83 provides that the ordinary way for a witness to give evidence is orally in a courtroom or, in certain circumstances, by giving evidence in the form of an affidavit or by reading a written statement in a courtroom. Section 84 sets out the order in which a witness gives evidence. A witness first gives evidence in chief and may then be cross-examined, and finally may be re-examined. Section 85 allows the Judge in any proceeding to disallow or permit a witness to refuse to answer any question that the Judge considers intimidating, improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand. Section 86 provides that a person commitsAlternative ways of giving evidence
Section 102 deals with the application of the subpart. It provides that the general rules dealing with alternative ways of giving evidence are subject to a number of provisions dealing with specific situations. Section 103 empowers a Judge to give directions in any proceeding that a witness is to give evidence in chief and be cross-examined in the ordinary way or in an alternative way as provided in section 105. Section 104 requires a chambers hearing, at which each party has an opportunity to be heard, if an application is made for directions under Section 103. Section 105 sets out alternative ways in which a witness may give evidence. This includes behind a screen, via CCTV or video conference call, or by video record. Section 106 regulates the use of video record evidence (which is one of the alternative ways of giving evidence) authorised by section 105. Section 107 provides a child witness in criminal proceedings the automatic right to give evidence in an alternative way. Sections 107A and 107B allows parties to request the child witness to give evidence in the ordinary way, or in a mixture of the ordinary way and an alternative way respectively, if it is in the interests of justice to do so. Sections 108 and 109 repeat the special provisions relating to the giving of evidence by undercover police officers. Those provisions are designed to ensure that the identity and place of residence of an undercover police officer is kept secret, except in very limited circumstances. Sections 110 to 118 set out the special provisions relating to the giving of evidence by anonymous witnesses and witnesses in the police witness protection programme. Section 120 allows an undercover police officer or an anonymous witness to sign statements under an assumed name.Corroboration, judicial directions, and judicial warnings
Section 121 deals with the topic of corroboration. It provides that 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 perjury, false oaths, false statements or declarations, and treason. The section also deals with the question of when a warning or direction relating to the absence of corroboration should be given. Section 122 requires the Judge, if he or she considers that any evidence given in a criminal proceeding tried with a jury may be unreliable, to warn the jury of the need for caution in deciding whether to accept the evidence or the weight to be given to it. Section 123 provides for the giving of a direction to a jury, in a case where evidence is given in an alternative way or in accordance with a witness anonymity order, or in a case where the defendant is not permitted to personally cross-examine the defendant. The direction must, amongst other matters, indicate that the jury must not draw any adverse inference against the defendant because of that manner of giving evidence or questioning. Section 124 deals with the question of when, in a criminal proceeding tried before a jury where there is evidence that a defendant has lied either before or during the proceeding, a judicial warning should be given about lies and the form of any direction. Section 125 deals with the giving of judicial directions in relation to children's evidence. In general, evidence given by children is to be treated in the same way as evidence by adults, in the absence of expert evidence to the contrary. Section 126 requires the Judge, in a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or of any other person, to warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification. Section 127 relates to the directions that may be given to a jury if issues arise in a sexual case tried before a jury about a delay in making, or failure to make, a complaint in respect of the offence.Notice of uncontroverted facts and reference to reliable public documents
Section 128 provides thatDocumentary evidence and evidence produced by machine, device, or technical process
Section 130 sets out a procedure which enables a party, on giving notice to the other parties, to offer a document in evidence without calling a witness to produce the document. Section 133 enables evidence of a voluminous document or compilation of documents to be given, after giving notice to the other parties and with the permission of the Judge, by means of a summary or chart. Section 135 deals with the admission of translations of documents and transcripts of information or other matters. Section 136 relates to the proof of signatures on attested documents. Section 137 relates to the status of any evidence provided by machine, device, or technical process. Section 138 provides that documents purporting to be public documents or copies of or extracts from such documents are, if sealed or certified in a certain manner, presumed to be authentic, in the absence of proof to the contrary. Section 139 contains provisions relating to the proof of convictions, acquittals, and other judicial proceedings. Section 140 relates to the proof of a conviction by use of fingerprints. Section 141 provides that certain documents purporting to be New Zealand or foreign official documents that have been printed or published in a manner specified in the section, are presumed to be authentic, in the absence of proof to the contrary. Section 142 makes similar provision in respect of certain official acts notified or published in the manner specified in the section. Section 143 contains similar rules to section 142 in relation to New Zealand and foreign official seals and signatures. Section 144 sets out a procedure for admitting in evidence a statute or other written law, proclamation, treaty, or act of State of a foreign country. Sections 145 to 147 implement theMiscellaneous provisions
Section 201 empowers the making of regulations necessary for the purposes of the Act. Section 202 provides for a periodic review of the operation of the Act by theHistory
Prior to the Act, evidence law in New Zealand was largely Judge-made, comprising decisions that were made in response to the circumstances of particular cases. The statutory provisions dealing with evidence were contained in a number of statutes, and have been reformed on a piecemeal basis, responding to issues as they arise. The resulting complexity and inconsistency of the law of evidence results in undue legal argument, expense, and delays in proceedings to accommodate arguments over issues of admissibility. In August 1989, the Law Commission was instructed by Minister of JusticeReviews and amendments
Section 202 of the Act requires the Minister of Justice to instruct the Law Commission to review the Act every 5 years. The minimum terms of reference include examining the operation of the Act's provision since the last review, and whether the provision should be retained, amended or repealed. The first review was initiated in February 2012, with the Law Commission reporting back in March 2013. The resulting recommendations were incorporated into the Evidence Amendment Act 2016. The second review was initiated in February 2017, with the Law Commission required to report back by February 2019.References
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