Evidence Act 2006


The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.
The foundations of the Act started in August 1989, when the Law Commission started work on reviewing the nation's piecemeal evidence laws. A decade of work culminated in August 1999 with the Commission producing a draft Evidence Code on which the Evidence Act is based. The Evidence Bill was introduced in May 2006 and passed its third and final reading on 23 November 2006. The majority of the Act came into force on 1 August 2007.

Structure

  • Part 1 — Preliminary provisions
  • Part 2 — Admissibility rules, privilege, and confidentiality
  • *Subpart 1 — Hearsay evidence
  • *Subpart 2 — Statements of opinion and expert evidence
  • *Subpart 3 — Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings
  • *Subpart 4 — Previous consistent statements made by witness
  • *Subpart 5 — Veracity and propensity
  • *Subpart 6 — Identification evidence
  • *Subpart 7 — Evidence of convictions and civil judgments
  • *Subpart 8 — Privilege and confidentiality
  • Part 3 — Trial process
  • *Subpart 1 — Eligibility and compellability
  • *Subpart 2 — Oaths and affirmations
  • *Subpart 3 — Support, communication assistance, and views
  • *Subpart 4 — Questioning of witnesses
  • *Subpart 5 — Alternative ways of giving evidence
  • *Subpart 6 — Corroboration, judicial directions, and judicial warnings
  • *Subpart 7 — Notice of uncontroverted facts and reference to reliable public documents
  • *Subpart 8 — Documentary evidence and evidence produced by machine, device, or technical process
  • Part 4 — Evidence from overseas or to be used overseas
  • *Subpart 1 — Proceedings in Australia and New Zealand
  • *Subpart 2 — Evidence for use in civil proceedings overseas and evidence for use in civil proceedings in High Court
  • *Subpart 3 — Evidence for use in overseas criminal proceedings
  • *Subpart 4 — Rules and regulations
  • Part 5 — Miscellaneous

    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 of relevance. The general rule is that, unless otherwise provided, relevant evidence is admissible in proceedings. Evidence that is not relevant is inadmissible. Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
Section 8 sets out a general rule that in any proceeding the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the outcome of the proceeding, or needlessly prolong the proceeding.
Section 9 deals with the admission of evidence by consent. It allows the admission of otherwise inadmissible evidence with the consent of all parties and the admission of evidence in any way or form agreed by all parties. It also allows the prosecution and the defendant to admit any fact and so dispense with the need for proof of that fact in any criminal proceedings.
Section 10 sets out 3 special rules regarding the interpretation of the Act. The Act must be interpreted in a
way that promotes its purpose and its principles. The Act is also not subject to any rule that statutes in derogation of the common law should be strictly construed. However, the Act may be interpreted having regard to the common law, but only to the extent that the common law is consistent with its provisions, the promotion of its purpose and its principles, and the application of the rule in section 12.
Section 11 provides that the powers inherent in a court to regulate and prevent abuse of its procedure are not affected by the Bill, except to the extent provided in the Bill.
Section 12 provides that if there are no provisions in the Act or any other enactment regulating the admission of particular items of evidence, or the relevant provisions deal with that question only in part, decisions must be made having regard to the purpose and the principles set out in sections 6 to 8, and the common law, to the extent that it is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken.
Section 13 sets out rules to be applied in establishing the relevance of any document.
Section 14 provides for the admission of evidence on a provisional basis.
Section 15 sets out rules governing the admissibility of evidence given for the purposes of establishing whether any particular evidence is admissible in the substantive proceeding.

Admissibility 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. 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 R v Baker.
Section 19 allow a hearsay statement contained in a business record to be admitted without having to separately satisfy the reliability test.
Section 22 provides no hearsay statement may be offered in a criminal proceeding unless the other parties have been given notice of the proposed hearsay 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 hearsay statements proposed to be offered in criminal proceedings.

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 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 or because there is a question as to whether they were influenced by oppressive conduct, or because they were improperly obtained.
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 sets out a list of matters that a Judge must 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, 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 sets out a list of matters that a Judge must take into account for the purpose of applying the reliability test. The list is the same as that set out in section 28.
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 the New Zealand Bill of Rights Act 1990; obtained as a result of a statement that the prosecution is precluded from offering against the
defendant: or obtained unfairly. If the Judge finds that the evidence has been improperly obtained, the Judge may determine if 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. In undertaking that balancing exercise, the Judge may, among other matters, have regard to the importance of any right breached by the impropriety, the nature of the impropriety, in particular, whether it was deliberate or reckless or done in bad faith, and the seriousness of the offence with which the defendant is charged.
Section 31 prevents the prosecution from relying on a defendant's statement that another party puts in evidence if the prosecution is precluded from using the statement because of sections 28, 29 or 30.
Section 32 prohibits any invitation to the Judge or jury in a criminal trial to draw an inference that the defendant is guilty from the defendant's silence in the course of official questioning before the trial or from the defendant's failure to disclose a defence before trial. The Judge must direct the jury not to draw an inference of guilt from failures of that kind.
Section 33 bars all persons other than the Judge or the defence from commenting on the fact that the defendant did not give evidence at his or her trial.
Section 34 provides for the admissibility of admissions in civil proceedings. However, hearsay admissions may not be used against a third party unless the circumstances relating to the making of the admission provide reasonable assurance that the admission is reliable or the third party consents.