Module 9 - Evidence (II) (Feb 2015)

Question 1

Who is eligible and compellable to give Evidence?

Answer 1

As a general proposition, all persons are eligible to give evidence – that is, they are lawfully able to give evidence on behalf of both prosecution and defence; and all persons who are eligible are compellable to give that evidence – that is, they can be required to testify against their will by both prosecution and defence.

However, some witnesses will, in fact, lack the capacity to give rational and coherent testimony. In relation to the hearsay rules, section 16 of the Evidence Act operates to make a person unavailable as a witness if he or she is “unfit to be a witness because of age or physical or mental condition”.

However, such people may still be compellable.

Witnesses who are otherwise compellable under the Act, can nonetheless be excused by a judge from testifying in criminal proceedings for “just cause” (s 165 of the Criminal Procedure Act 2011). This provision takes precedence over s 71. Furthermore, where a witness is eligible and compellable, and is not excused from testifying, he or she may nevertheless be able to be excused from answering certain questions because of a privilege, as discussed below.

In addition to the ability to have recourse to ss 7 (relevance) and 8 (general exclusion), or to excusal from testifying, there are some exceptions in ss 72-75 Evidence Act 2006 to the general proposition that all persons are eligible and compellable.

Question 2

What is Section 72, Evidence Act 2006?

Answer 2

Judges, Jurors and Counsel

A person who is acting as a judge in a proceeding is not eligible to give evidence in that proceeding. This reflects the desire to avoid conflicts of interest and aims to ensure fairness and neutrality of the trial.

Unless the judge gives permission, a person acting as a juror or counsel in a proceeding is ineligible to give evidence in that proceeding. If a juror is given permission to give evidence, he or she would be discharged and the trial would proceed with the eleven remaining jurors.

A defendant who acts as his or her own counsel will not need judicial permission to testify.

Question 3

What is Section 73, Evidence Act 2006?

Answer 3

Compellability of defendants and associated defendants in criminal proceedings

Section 73 is concerned with the compellability of defendants and associated defendants. It is not concerned with eligibility of those persons should they wish to testify voluntarily, although such evidence may attract a warning under s 122 Evidence Act 2006 if it is from an associated defendant. Section 73 provides that:

(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.

(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—
(a) the associated defendant is being tried separately from the defendant; or (b) the proceeding against the associated defendant has been determined.

(3) A proceeding has been determined for the purposes of subsection (2) if—
(a) the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or
(b the associated defendant has been acquitted of the offence; or
(c) the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.

(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted;
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.

Section 73 therefore sets out a basic rule of non-compellability. A defendant facing a criminal trial is an eligible but not a compellable witness for either “the prosecution or the defence in that proceeding” (s 73(1) – so a defendant can give evidence but does not have to).

An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s 73(4)(a)); or “that relates to, or is connected with,” the offence for which the defendant is being tried (s 73(4)(b)).

The two provisions were intended to encompass not only actual co-defendants in a criminal trial, but also persons charged with linked offending. For example, where a defendant is charged with burglary, then both an accomplice to the burglary itself, and someone charged with receiving goods stolen in the burglary would be an associated defendant under s 73.

• If the “associated defendant” is actually a co-defendant at the defendant’s trial, the ordinary rule of non-compellability will apply. This follows from the prohibition in s 73(1) against a “defendant in a criminal proceeding” being a compellable witness for either “the prosecution or the defence” (i.e. the defence of another defendant in the proceeding) in that case.
• If the associated defendant is not a co-defendant, then he or she will be compellable for both the Crown and the defence where the associated defendant is being “tried separately” from the defendant, or where the proceeding against the associated defendant has been “determined” (as defined in s 73(3)).

Other exceptions

• Under s 74 Evidence Act 2006, judges, in respect of the judge’s conduct as a judge (along with the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country) are not compellable to give evidence.
• Under s 75, where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s 19), or to appear as a witness to prove the matters recorded in the bank records.

Question 4

What is Privilege?

Answer 4

Even when a witness is eligible to give evidence and chooses or is compelled to do so, he or she may still be able to refuse or be prevented from answering particular questions on the grounds of privilege. A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.

Several privileges are outlined in the Evidence Act 2006:
• privilege for communications with legal advisors – section 54
• privilege and solicitors’ trust accounts – section 55
• privilege for preparatory materials for proceedings – section 56
• privilege for settlement negotiations or mediation – section 57
• privilege for communications with ministers of religion – section 58
• privilege for information obtained by medical practitioners and clinical psychologists – section 59
• privilege against self-incrimination – section 60
• informer privilege – section 64

Note that there is no longer marital privilege – if any protection of disclosure to a spouse or partner is desired, this will be assessed under s 69 (overriding discretion as to confidential information).

When a claim of privilege is made, it is important to enquire whether the material in question, be it a communication, information, opinion, or document, is within the scope of the privilege in question, as these differ in scope (some protect “information”, others “communications”, for example).

The person who has a privilege has the right to refuse to disclose the information, and may require that the information is not disclosed by the person whom the information was given to or received from; or by any other person who has come into possession of it with the authority of the person who has the privilege. Where privileged material comes into the possession of a person who has not been authorised by the holder of the privilege to possess the material (e.g. surreptitious interception), the judge a wide discretion to prevent disclosure of the material (s 53 Evidence Act 2006).

Since the effect of a claim of privilege is that information is withheld from the court which might be of assistance in determining the case, the particular public interest underlying the claim must be a significant one, and one which outweighs the interests of justice in having all the relevant evidence before the court. The most important interest in this respect is the preservation of important social relationships which depend for their effectiveness on confidentiality.

Privilege may be waived at any time by the person who is entitled to rely on it. Waiver ends the ability of the privilege holder to assert his or her rights (for example, the right to require that the material not be disclosed in a proceeding). However, this does not necessarily mean that privilege has been destroyed for all purposes. Despite a waiver, an “interested person” could still apply for an order, under s 52 Evidence Act 2006, that the privileged material remains inadmissible. This reflects the fact that sometimes someone other than the privilege holder will want to prevent privileged material being given in evidence.

Question 5

What is Legal Professional Privilege?

Answer 5

Any communication between a person and his or her legal adviser for the purposes of seeking or obtaining professional legal services is privileged (s 54 – what was termed “solicitor-client privilege” under the previous law); so too are communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding (s 56 – what was termed “litigation privilege” under the previous law). Legal professional privilege has been described as “more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a whole rests”(R v Derby Magistrates’ Court ex p B [1996] 1AC 487 per Gosforth CJ, p.507). The privilege in New Zealand is not to be balanced against competing public interests, as a lawyer has to be able to give a client an absolute and unqualified assurance that what they reveal to their lawyer will not be disclosed without their consent. The privilege therefore takes primacy over other public interests: B v Auckland District Law Society [2003] UKPC 38. There are a number of points to be made about the circumstances in which such legal privilege may be claimed:

Privilege for communications with legal advisers

1. The communication must be intended to be confidential.
2. The communication must be made for the purposes of obtaining or giving legal services. Communications which would be privileged if carried out directly between client and legal adviser will remain privileged if carried out between the “authorised representatives” of either or both of these parties if those communications were made for the purpose of obtaining legal services or could be said to be part of communication between client and solicitor. However, it does not extend to situations where the staff member overhears a “public” conversation where legal services are not being sought, or where the circumstances make it clear that the communication is not intended to be confidential.
3. Privilege vests in the person seeking or receiving the legal services. However, the judge may still order that evidence of the communication must not be given, either on his or her own initiative, or on the application of an interested person other than the person who has the privilege (which could include the legal advisor, who may wish to avoid giving evidence about the communications even where the person who obtained legal services waives the privilege).
4. The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence (if communications were made for such a purpose, the Judge must disallow privilege by virtue of s 67 Evidence Act 2006).
5. Provided that it was intended that the communication be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken. The protection of confidentiality where a person possesses information or communications without the authority of the privilege is possible under s 53(4), whereby the judge may order that the information or communication not be disclosed.

Question 6

What is Privilege for preparatory materials for proceedings?

Answer 6

1. The privilege applies to a communication or information if it is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding.
2. A person has a privilege if they are, or on reasonable grounds contemplates becoming, a party to the proceeding or apprehended proceeding.
3. The privilege can be in respect of a communication between the party and any other person; a communication between the party’s legal adviser and any other person; information compiled or prepared by the party or the party’s legal adviser; and information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person. This means that, like under s 54, communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal advisor. In addition, communications by “other persons” may be protected too (this is not the case under s 54).
4. Documents which are in themselves not privileged become so when “compiled”. This is because the compilation may disclose tactics planned for the litigation.

Question 7

What is Privilege for communication with ministers of religion?

Answer 7

Section 58 Evidence Act 2006 expands the previous law in its protection of communications with ministers of religion. It provides that:

(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—
(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.

(2) A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—
(a) to receive confidential communications of the kind described in subsection (1); and
(b) to respond with religious or spiritual advice, benefit, or comfort.

Section 58 covers religious and spiritual communications, whether or not they involve atonement for sin, and regardless of whether they are made within a structured religious community. Section 58(1) extends to any communication, including “a communication … contained in a document”, made for the religious or spiritual benefit of the communicator, or for the communicator’s spiritual comfort or advice. It also extends the term “minister of religion” beyond persons recognised as such under the traditional structures of organised faith. Instead, “minister of religion” is defined functionally. This looks to the religious or spiritual community itself in determining who plays a pastoral role in that community. For example, the definition applies to certain “kamatua” (elders) in the New Zealand Maori community whose role is to offer spiritual guidance or advice within that group.

Nevertheless, s 58 focuses on advice, benefit or comfort of a “spiritual” nature. It will not extend to communities that do not depend on the belief in some god, divine force or other spiritual basis for life.

In addition, protection under s 58 requires that communications are made in confidence and within the minister’s capacity as a minister of religion. The person must be at least partly impelled to speak to a minister of religion by his or her own religious or spiritual belief or practice, must seek out the minister for spiritual communication, and must aim to receive spiritual advice, benefit or comfort. An example can be seen in R v Mahomed HC Auckland CRI 2008-092-748 16 July 2009 at [58], where a privilege would not have been allowed as the conversations were not confidential (there was a third party present) and they were not made to enable the defendant to receive spiritual advice, benefit or comfort.

Communications must occur personally between the privilege holder and the minister of religion in order to attract privilege under s 58. However, a confidential communication between an individual and a minister of religion not falling within the s 58 definition of “spiritual advice, benefit or comfort” may be protected from disclosure under a court’s overriding discretion to deal with confidential information (s 69).

Where the communication is for a dishonest purpose or for the purpose of enabling or aiding an offence to be committed, the judge (if satisfied that there is a prima facie case made out revealing a dishonest purpose) must disallow the privilege – s 67.

Question 8

What is Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists?

Answer 8

Section 59 allows for a limited privilege protecting information obtained by medical practitioners and clinical psychologists. The rationale behind s 59 is to encourage drug addicts and persons with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help. It can be invoked by any person involved in a criminal proceeding — such as a witness called to testify by the defendant or the Crown.

Privilege will not apply if the interaction between the individual and a health professional — whether it be for an “examination, test, or … any other purpose” — was “required by an order of a Judge, or by some other lawful authority”.

The s 59 privilege will apply only “to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct” (s 59(1)(a)). The definition will clearly include disorders resulting in criminal acts — such as paedophilia, pyromania, and kleptomania.

Privilege will not attach to statements made or information obtained during medical or psychological treatment for conditions that merely result from a person’s unlawful conduct, or are the by-product of criminal behaviour (for example, where when seeking treatment for a wound, the person discloses to the doctor that the injury was received during the course of criminal conduct).

The privilege applies to disclosures made by the patient to the medical practitioner (including a psychiatrist) or clinical psychologist and their staff, but not the reverse.

Disclosures made to a practitioner’s representative will be covered by the privilege, but the person must make the disclosure personally – disclosures by the person’s representative to the practitioner or staff will not attract s 59 privilege.

If not covered by s 59, communications made and information generated in the course of a person’s dealings with various types of health professionals may be protected from disclosure under a court’s overriding discretion to deal with confidences (s 69).

Question 9

What is Privilege Against Self-incrimination?

Answer 9

Section 60 - Privilege against self-incrimination

(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b) the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.

(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.

(3) Subsection (2) has effect—
(a) unless an enactment removes the privilege against self incrimination either expressly or by necessary implication; and
(b) to the extent that an enactment does not expressly or by necessary implication remove the privilege against self incrimination.

(4) Subsection (2) does not enable a claim of privilege to be made—
(a) on behalf of a body corporate; or
(b) on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or
(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.

If the privilege against self-incrimination applies, s 60(2)(a) states that the privilege holder cannot be made to provide information he or she would otherwise have to supply.

The Act defines “self-incrimination” as “the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence”. This will apply not only to information directly admitting criminal acts, but also to circumstantial evidence of such acts. For example, a witness could assert the privilege when to give the evidence would implicate them as a party to offending.

The word “likely” in s 60(1)(b) has been held as confining the privilege to circumstances where the potential for incrimination is “real and appreciable” and not “merely imaginary and fanciful”: Singh v R [2010] NZSC 161 at [31], quoting Cooke J in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 at 469.

The privilege will apply if a person is “required to provide specific information”
− in the course of a proceeding;
− by a person exercising a statutory power or duty; or
− by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence.

If there is no compulsion to produce the information, s 60 will not apply.

One person cannot claim the privilege against self-incrimination on behalf of another (except for the situation where a legal adviser asserts the privilege on behalf of a client). It can only be asserted by natural persons and not on behalf of a body corporate.

A defendant cannot assert the privilege when giving evidence about the matter for which the defendant is being tried. If a person on trial for a criminal act chooses to testify in his or her defence, privilege can only be asserted when the information sought poses a risk of conviction for a different offence to that being tried.

Under s 60(3), the protections offered by s 60(2) will apply “unless” and “to the extent” that a parliamentary “enactment removes the privilege against self-incrimination either expressly or by necessary implication”. This applies to both regulations and Acts. For example, s 130 of the Search and Surveillance Act 2012 requires certain “specified person[s]” to assist an enforcement officer who is exercising a search power in respect of data held in a computer system or other data storage device. While a specified person cannot be required to give any information tending to incriminate the person, they can be obliged to provide information or assistance that is reasonable and necessary to allow the enforcement officer to access the computer files or data storage device. This obligation exists even if the computer or data storage device contains or may contain information tending to incriminate the specified person.

Section 61 of the Act codifies a judicial discretion to safeguard an individual from self-incrimination under foreign law.

Question 10

What are the laws around Confidentiality?

Answer 10

Sections 68-70 Evidence Act 2006 provide for judicial discretion to protect confidentiality. Privileges also protect confidentiality, but offer little room for a judge to rule that the information should be disclosed. Sections 68-70 allow for weighing of public interests in deciding whether to protect the confidentiality of communications. Section 76 protects the confidentiality of jury deliberations.

(a) Jury deliberations

The general rule is that evidence must not be given about the deliberations of a jury (anything said or done during the time that the jury was performing its fact-finding function). However, evidence can be given about issues connected with the jury if they did not form part of the jury deliberations, such as evidence about the competence, conduct by and capacity of a juror.

Evidence may also be given about the deliberations of a jury if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. In deciding whether to allow the evidence, the judge must weigh

− the public interest in protecting the confidentiality of jury deliberations generally, and

− the public interest in ensuring that justice is done in those proceedings.

(b) Protection of journalists’ sources

Section 68 provides that, where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered. A High Court judge may order that the protection will not apply if he or she is satisfied by a party to the proceeding that the public interest in the disclosure of the identity of the informant outweighs:

− any likely adverse effect of the disclosure on the informant or any other person; and

− the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

Nothing in s 68 prevents disclosure when the journalist or journalist’s employer is willing to disclose the information.

(c) Section 69 Evidence Act 2006: Overriding discretion as to confidential information

Section 69 allows the judge to prevent disclosure of confidential information after weighing up factors to determine if protection of the confidential material is justified in the public interest.

Section 69 permits a judge to protect confidentiality even in a case where the person to whom the confidence is imparted does not wish to preserve the confidence.

A judge can give a direction under s 69 on the judge’s own initiative or on the application of an “interested person”. Unlike the previous law, no “special relationship” needs to be demonstrated.

Question 11

What is “Charachter” evidence?

Answer 11

Relationship between the veracity and propensity rules

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
• “veracity” (disposition to refrain from lying) and
• “propensity” (tendency to act in a particular way).

The rules do not apply to evidence about a person’s veracity if that veracity is an element of the offence for which a person is being tried (e.g. a prosecution for perjury).

This part of the 2006 Act does not apply to bail or sentencing hearings except when the evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or his or her reputation in sexual matters.

Question 12

What is Veracity?

Answer 12

Section 37 Evidence Act sets out the veracity rules. Evidence about a person’s veracity may not be given unless it is substantially helpful in assessing that person’s veracity (s 37(1)). Where the evidence is about a defendant’s veracity, it has to comply with s 38 or s 39 (s 37(2)). The remainder of s 37 provides that:

Veracity rules
… (3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.

(4) A party who calls a witness—
(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.

(5) For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

The veracity rules focus solely on truthfulness and do not attempt to control evidence about the accuracy of a statement by a person who is attempting to tell the truth.

Whether evidence is offered “about” a person’s veracity can be assessed by examining the purpose for which the evidence is offered. If the party offering the evidence does so to bolster or attack a person’s veracity, then the evidence is about veracity. If the evidence is offered for some other purpose, it is not evidence about veracity.

It is only evidence offered about a person’s veracity, not that offered for some other purpose, that is subject to the substantial helpfulness test. In Hannigan v R [2013] NZSC 41, a majority of the Supreme Court held that the veracity rules are confined to evidence which is not admissible independently of those rules. Prior to the Act, the only use which could be made of a witness’s previous inconsistent statement was to damage the witness’s reliability and could not be used as evidence of the truth of its contents. Under the Act, previous inconsistent statements are now able to help prove the truth of their contents. Furthermore, after Hannigan, as long as what is stated in a witness’s previous inconsistent statement has some relevance to the facts in issue, the statement cannot be classified as evidence about the witness’s veracity. It is, rather, evidence about an issue in dispute. Despite the extent to which the statement actually damages the witness’s veracity (and whether or not the party offering the statement was actually motivated to do by its potential to cause such damage), it remains completely untouched by the Act’s controls on veracity evidence.

Question 13

What is Substantial Helpfulness (in terms of Veracity)?

Answer 13

This is a higher threshold than relevance under s 7 (R v Smith [2007] NZCA 400). The judge may consider matters in s 37(3)(a)-(e), such as convictions for dishonesty offences, bias, or a motive to lie.

The substantial helpfulness test applies to both evidence in chief and cross-examination.

There is no automatic right to ask any witness if they have been convicted of an offence. To be admissible, such questions must be substantially helpful in assessing the person’s veracity.

Evidence of someone’s reputation for veracity is potentially admissible under s 37, but the substantial helpfulness threshold will only be met in exceptional cases: R v K [2009] NZCA 176 at [64].

Substantial helpfulness is not a sufficient test in two instances:
• where the prosecution wish to offer evidence about a defendant’s veracity (s 38), and
• where a defendant offers veracity evidence about a co-defendant (s 39).

Question 14

How do you offer Veracity evidence for a Defendant?

Answer 14

Evidence of a defendant’s veracity

A defendant may offer evidence about his or her veracity provided that it meets the substantial helpfulness test as set out in s 37. This is one limb of what was previously known as “good character evidence”.

Section 38 provides that the prosecution may offer evidence about a defendant’s veracity only if: • it is in issue (i.e. it is relevant)

• the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence – i.e. must have orchestrated it); • it meets the substantial helpfulness test; and
• the Judge permits the prosecution to do so.

In Hannigan v R [2013] NZSC 41, it was held that s 38(2) (which restricts the prosecution’s ability to offer evidence about the defendant’s veracity) did not bar prosecution evidence that the defendant had lied to the police about one of the circumstances of the offence.

Evidence of co-defendant’s veracity

Section 39 Evidence Act 2006 provides that a defendant may only offer evidence that challenges the veracity of a co-defendant if the evidence is relevant to a defence raised or proposed to be raised by the defendant, and the Judge permits the defendant to do so. The requirements of substantial helpfulness must also be met.

Question 15

What is Propensity Evidence?

Answer 15

Sections 40-43 Evidence Act 2006 control evidence of propensity. For the purpose of this part of the Act, propensity evidence is evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved. It does not include evidence of an act or omission that is one of the elements of the offence for which the person is being tried.

General rule

The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions:

• propensity evidence about a defendant may only be offered in accordance with sections 41, 42 or 43; and
• in sexual cases propensity evidence about a complainant’s sexual experience may only be offered in accordance with section 44.

Outside of these restrictions, the general principles of relevance (s 7) and the general exclusion provision of s 8 will act as the check on propensity evidence (for example, propensity evidence about a witness may not be relevant under s 7).

Question 16

What is Section 41, Evidence Act 2006?

Answer 16

Section 41 incorporates the ability to offer evidence of a good propensity: the propensity limb of what was termed “good character evidence” at common law. However, it also allows defendants to offer evidence of disreputable conduct about him or herself (something which a defendant may want to do for tactical reasons). For example, in Johnston v R [2012] NZCA 559, [2013] 2 NZLR 19 the defendant offered evidence of his extensive criminal history for burglary in an unsuccessful attempt to show that he had been on the property to commit a burglary rather than a rape. Section 41 also allows defendants to offer evidence of a neutral propensity (e.g. evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad).

A defendant may offer propensity evidence when testifying, but also through other witnesses, even though he or she does not testify.

Section 41(2) provides that, by offering evidence of his or her propensity to act in a good fashion, the defendant opens the door to rebutting evidence from the prosecution or another party (with the permission of the judge). This is to prevent the judge or jury from forming the wrong impression about the defendant’s character. It is unlikely that permission will be granted under s 41(2) where the only propensity evidence offered by the defendant is evidence that he or she has no relevant previous convictions: Wi v R [ 2010] 2 NZLR 11.

Note also that, unlike the previous law, the door is not opened by an attack on the propensity of a prosecution witness.

Question 17

What is Section 42, Evidence Act 2006?

Answer 17

Propensity evidence about co-defendants
Section 42 provides that a defendant may only offer propensity evidence about a co-defendant if the evidence is relevant to a defence raised or proposed to be raised by the defendant, and the Judge permits the defendant to do so.

Question 18

What is Section 43, Evidence Act 2006?

Answer 18

Propensity evidence offered by prosecution about defendants - section 43

Evidence Act 2006

The Act incorporates a compromise: evidence that the defendant has a propensity to commit criminal acts is relevant to guilt or innocence but there is concern that the fact-finder may give undue emphasis to evidence that the defendant previously acted in a similar way to that alleged in the current proceeding. To this end, the judge must identify the relevance of the evidence, outline the competing positions of the parties, and warn the jury against illegitimate reasoning processes (M v R [2012] NZCA 53 at [13] and Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [82] and [95]).

Although a number of cases have expressed the view that the old law on “similar fact” remains relevant, for the issues that are covered by s 43, the majority of the Supreme Court stated in Mahomed v R [2011] NZSC 52 at [4] that:

“We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law. The Act substantially codified that case law and it is preferable, and consistent with s 10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.”

Section 43 requires that propensity evidence offered by the prosecution about a defendant will only be admissible where the evidence “has a probative value in relation to an issue in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant”.

The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence (although this may affect the assessment of the probative value of the evidence). Such evidence has been termed “prior acquittal evidence”: Fenemor v R [2011] NZSC 127. The test is the same as for propensity evidence concerning previous convictions. In addition, it is well-established that conduct that is subsequent to the present offending is capable of being propensity evidence.

Note that unlike s 8, section 43(1) focuses only on the risk of a prejudicial effect on the defendant, rather than on the proceeding as a whole. The requirements for the admission of propensity evidence were clearly laid out in Rei v R [2012] NZCA 398, (2012) 25 CRNZ 790 at [16]. The evidence must:

a) constitute “propensity evidence”, that is evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s 43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Probative value must outweigh the risk of an unfairly prejudicial effect, which reflects the fact that all probative evidence will be prejudicial; the test is concerned with illegitimate prejudice. In Rei, it was demonstrated that the potential probative value of proposed propensity evidence (in that case relating to prior drug offending) will depend on the elements of the present charges the Crown will be required to prove and whether the task would be materially advanced by the evidence. In other words, the propensity evidence must be specific enough to allow evaluation against the issues at trial (the states of mind or acts required for the offence).

As the majority in Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 (at [3] and [7]) said:

“The rationale for the admission of propensity evidence rests largely…on the concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried…

In order to make the necessary assessment the Court must carefully identify how and to what extent the propensity evidence has sufficient particularity to be probative, and how and to what extent it risks being unfairly prejudicial…Unfairness is generally found when and to the extent the evidence carries with it a risk that the jury will use it for an improper purpose or in support of an impermissible process of reasoning.”

The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 19

How does assessing Probative Value and Prejudicial effect get considered?

Answer 19

(a) Assessing probative value

When assessing the probative value of the evidence, the judge must take into account the nature of the issue in dispute (so the test should be tailored to the individual case).

He or she may then consider the non-exhaustive list of issues in s 43(3):

• Section 43(3)(a): the frequency of acts demonstrating the defendant’s propensity increases the probative value of the evidence (although it will be rare for frequency alone to secure admission of the evidence).
• Section 43(3)(b): how closely connected in time are the propensity acts to the current alleged offending.
• Section 43(4)(c): similarity between the previous acts and those currently alleged. This can be an important factor in the admissibility decision, although not necessarily the overriding consideration.
• Section 43(4)(d): the number of people making allegations against the defendant.
• Section 43(3)(e): whether allegations may be the result of collusion or suggestibility.
• Section 43(3)(f): do the acts share similar unusual features.

It has been held that the degree of similarity is not diminished because the offending in issue is a progression in seriousness when compared with the propensity offending. If the relevant acts fall within the same category of offending then there is no need to draw a distinction based on relative severity alone (Hetherington v R [2012] NZCA 88 at [20] and R v Khan [2010] NZCA 510).

(b) Assessing prejudicial effect on the defendant

The judge must consider whether the evidence is likely to unfairly predispose the fact-finder against the defendant, and whether the fact-finder will give disproportionate weight to the propensity evidence.

If the judge decides that there is a risk that the propensity evidence will have an unfair prejudicial effect on the defendant, he or she must then weigh that risk against the probative value of the evidence.

Question 20

What is Section 44, Evidence Act 2006?

Answer 20

Evidence of sexual experience of complainants in sexual cases

Under s 44 of the Evidence Act 2006, the permission of the Judge is required before any evidence may be given or before any questions are put to a complainant regarding his or her sexual experience with anyone other than the defendant. The Judge may only give permission where he or she is satisfied that the evidence is of such direct relevance to facts in issue (a heightened relevance test) or to sentence that to exclude it would be contrary to the interests of justice.

No evidence can be given or question put relating directly or indirectly to the reputation of the complainant in sexual matters. This means that reputation evidence going to the issue of the complainant’s credibility, his or her consent or the defendant’s belief in consent, cannot be offered.

The section applies to all cases of a sexual nature.

Question 21

What is “Hearsay”?

Answer 21

The Evidence Act 2006 made significant changes to the previous law relating to hearsay evidence. Common law exceptions no longer apply, with the exception of s 12A Evidence Act 2006, which preserves a common law exception to hearsay rendering admissible the statements of co-defendants in certain circumstances. Section 12A is due to be replaced in the near future.

Under the Act, a hearsay statement is defined as “a statement that was made by a person other than a witness, and is offered in evidence at the proceeding to prove the truth of its contents” (s 4).

“Statement” means:
• a spoken or written assertion by a person of any matter or
• non-verbal conduct of a person that is intended by that person as an assertion of any matter

Hearsay statements are not admissible except where there is provision for admissibility in the Evidence Act 2006 or any other Act; or where there is express provision that the hearsay rules do not apply (section 17 Evidence Act 2006).

Question 22

What does the Hearsay Rule mean about giving evidence?

Answer 22

Out of court statements by a witness not included

As outlined in Chapter 8, Evidence (1), a “witness” is “someone who gives evidence and is able to be cross-examined in a proceeding” – this applies even if the “witness” is not the person giving evidence of the out-of-court statement. The definition of “witness” and “hearsay statement” means that out-of-court statements made by a “witness” are not excluded by the hearsay rule, on the basis that the maker is available to be cross-examined.

For example, A gives evidence that B said “X killed Y”. If B has given evidence in the proceeding, A’s recounting of B’s statement will not be hearsay, even if B did not testify that X killed Y or that s/he previously said that X killed Y (in which case fairness will dictate that he or she should be recalled and cross-examined on the point). However, if B does not give evidence or has yet to give evidence in the proceeding, the statement recounted by A will be hearsay if offered to prove that X killed Y. Where not covered by the hearsay rule, or where an exception to the hearsay rule applies, such statements may still be inadmissible by virtue of another rule under the Act (for example, s 37 veracity rule).

Question 23

Is an unintended assertion a statement?

Answer 23

The definition of “statement” does not include a statement or non-verbal conduct that is not intended to be an assertion. This means that for the purpose of the hearsay rule, whether a particular statement contains an intentional assertion will be more of a focus than under the previous law.

Question 24

What is the purpose for which Hearsay evidence is offered?

Answer 24

As at common law, the focus of the hearsay rule is on the purpose for which the evidence is offered, rather than just the fact that the statement was made out-of-court. A statement offered for some other purpose, for example merely to show that the statement was made, is not a hearsay statement and need not meet the hearsay admissibility test in s 18 Evidence Act 2006.

For example, where a doctor states that his or her patient said that they suffered from chest pains, the evidence is not hearsay if offered to illustrate why the doctor concluded that the patient had angina. The purpose of the evidence is not to prove that the patient indeed suffered from chest pains but is rather to show how and why the doctor reached his or her conclusion. By contrast, the evidence will be hearsay if the doctor wishes to testify as to the chest pains in order to say that they were actually suffered, as this would be equivalent to saying that the symptoms were the “truth”.

It can be difficult to determine the purpose for which a statement is sought to be offered in evidence. This is complicated by the fact that the Act does not offer any limited use of the evidence in this instance – so a statement that is admitted for some other purpose could, once admitted, be used as proof of the truth of its contents. It is likely that in many such cases, judges will direct juries to limit the use of such statements. This is possible under s 12, and was confirmed as a possible avenue in R v Rajamani [2009] NZCA 225.

Question 25

What is Section 18, Evidence Act 2006 ?

Answer 25

Main exception to hearsay rule

Section 18 Evidence Act 2006 contains the main exception to the exclusionary rule. It is a major reform of the common law rule. It provides that:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

(2) This section is subject to sections 20 and 22.

Section 18 makes it clear that there are two criteria for admissibility:
• reliability and
• unavailability or undue expense or delay

The notice requirement in s 22 Evidence Act 2006 must also be met before a hearsay statement can be admitted.

Question 26

What is the rationale of Reliability in regards to Hearsay evidence?

Answer 26

The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence:

• where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
• the rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
• there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people. The game of “Chinese Whispers”, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.

The reason for the rule’s existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

The focus of s 18(1)(a) is the reliability of the hearsay statement itself, not the person who intends to give the hearsay evidence. It is a threshold test for admissibility. The reference to “reasonable assurance” of reliability means that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to the weight to be placed on the evidence.

Section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. Section 16(1) Evidence Act 2006 defines “circumstances”:
circumstances, in relation to a statement by a person who is not a witness, include—

(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person

This is a non-exhaustive definition. It provides the list of matters the court should consider when determining whether the “circumstances relating to the statement provide reasonable assurance that the statement is reliable” (s 18).

In considering the nature of the statement, whether it is written or oral, signed, witnessed, first-hand etc. may be relevant. The circumstances relating to the making of the statement may include such issues as the physical environment, how long after the event the statement refers to, what the relationship between the maker and the witness was etc. In R v Gwaze (2010) 24 CRNZ 702 at [45] the Supreme Court stated that:

“[The] definition of “circumstances” for the purpose of hearsay evidence makes it clear that the inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement, but also the nature and contents of the statement, and the circumstances relating to its making.”

Question 27

What would make someone Unavailable, cause undue expense or delay to admit Hearsay evidence?

Answer 27

In addition to a requirement of reliability, a hearsay statement will only be admissible where the maker of the statement is unavailable, or undue expense or delay would be caused by requiring the person to be a witness. Section 16(2) defines what is meant by “unavailable as a witness”:

(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person— (a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition;
or
(d) cannot with reasonable diligence be identified or found; or (e) is not compellable to give evidence.

This definition differs from the previous law, although some of the pre-Act case law will remain relevant:

• Unlike the previous law, the emphasis in s 16(2)(b) is on whether the person cannot be a “witness” (that is, give evidence and be cross-examined) rather than whether the evidence can be obtained. It is likely that the increasing use of technology, including the use of video-link – see s 168 of the Evidence Act and the Courts (Remote Participation) Act 2010

– will mean that more witnesses, particularly those overseas, will be “available” to give evidence. Whether it is “reasonably practicable” for the person to give evidence will depend not only on the availability of the technology, but also on the expense and inconvenience incurred, as balanced against the nature of the proceedings and the significance of the witness’s evidence.

• Section 16(2)(c) removes the reference to “old” age, so that the inquiry into unavailability can relate to the effect of youth on the ability to be a witness, as well as age.
• Section 16(2)(d) makes it clear that an inability to either identify or find a person renders them unavailable, in comparison to the former provision that referred only to an inability to be found.

The most important change to previous law is the addition of s 16(2)(e) (unavailability by reason of non-compellability). Those who cannot be compelled to testify (for example, the Sovereign (s 74) and the defendant in a criminal case) are considered “unavailable as a witness” for the purposes of the hearsay rule.

Section 16(3) provides that:

(3) Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or giving evidence.

Section 16(3) is aimed at preventing a party from benefiting from rendering someone unavailable to testify (for example, where the party kidnaps or kills the maker of the statement). The subsection would apply when a party anticipates that the maker may not testify consistently with the out-of-court statement, and so causes them to be unavailable in an attempt to offer the hearsay evidence. When a party has caused the unavailability of a statement maker, the s 16(2) definition of unavailability no longer applies. Section 16(3) requires that the party intentionally cause the unavailability of the statement maker. If a party negligently causes the death of a witness, that party will still be able to apply s 16(2)’s definition of unavailability.

Question 28

What is Section 19, Evidence Act 2006?

Answer 28

Admissibility of hearsay statements contained in business records

Section 19 Evidence Act 2006 largely re-enacts s 3(1) Evidence Amendment Act (No 2) 1980:

(1) A hearsay statement contained in a business record is admissible if—
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.

(2) This section is subject to sections 20 and 22.

Under s 16(1), a business record means a document

• That is made to comply with a duty or in the course a of business (and as a record or part of a record of that business); and
• That is made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied

This definition can capture a statement to a police officer written down in his or her notebook, or job sheets (R v Hovell [1986] 1 NZLR 500) and the written statement of an eyewitness to police (R v Kereopa HC Tauranga CRI2007-087-411 11 February 2008). In 2013, Cabinet accepted the Law Commission’s recommendation, from its 2013 Review of the Act, that the definition of “business record” should be amended to exclude police notebooks that contain statements or interviews of eyewitnesses or victims, as they are not “inherently reliable.” Hearsay statements contained in such documents may be admissible if s 18 is satisfied.

Unlike s 18, there is no requirement under s 19 of a “reasonable assurance that the statement is reliable”. However, any challenge to the reliability of the statement may still affect the weight accorded to the evidence, or may lead to exclusion under s 8.

A business record will be admissible where no useful purpose would be served by requiring the person to be a witness because there can be no reasonable expectation that the person will be able to recollect the matters dealt with in the information supplied for the business record.

By virtue of s 19(2), notice of offering hearsay statements contained in business records must be given.

Question 29

What is Section 21, Evidence Act 2006?

Answer 29

Defendants who do not give evidence

Section 21 provides that, if a defendant does not give evidence, he or she may not offer his or her own hearsay statement in evidence.

As a defendant in a criminal proceeding is not compellable, they are deemed to be unavailable for the purposes of the hearsay rule. The purpose of the section is to control the introduction of fabricated self-serving statements.

Pre-trial statements of a defendant in a criminal case may be offered by the prosecution in accordance with ss 27-30, to which the hearsay rule does not apply (see Chapter 10).

Although s 27(1) prohibits the use of prosecution evidence of the statements of one defendant by another defendant, s 21(1) does not prevent a co-defendant from themselves offering the hearsay statement of another co-defendant. This may mean that cooperative co-defendants can circumvent the rule (by offering evidence through cross-examination of each other’s hearsay statements) provided that the requirements of s 18 are met. If a co-defendant testifies, a defendant can offer evidence of the co-defendant’s out-of-court statements without any need to satisfy s 18 (because the co-defendant will be a witness and so the statement will not be hearsay). In addition, there is no bar on a defendant offering evidence of inculpatory pre-trial statements of a co-defendant.

Question 30

What is Section 22, Evidence Act 2006?

Answer 30

Notice requirement

It has been noted that notice of hearsay must be given in order to have a hearsay statement admitted under s 18 or s 19. The notice requirement is contained in s 22:

Notice of hearsay in criminal proceedings

(1) In a criminal proceeding, no hearsay statement may be offered in evidence unless—
(a) the party proposing to offer the statement has complied with the requirements of subsections (2), (3), and (4); or
(b) every other party has waived those requirements; or
(c) the Judge dispenses with those requirements.

(2) A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating—
(a) the party’s intention to offer the hearsay statement in evidence; and
(b) the name of the maker of the statement, if known (subject to the terms of any witness anonymity order); and
(c) if the hearsay statement was made orally, the contents of the hearsay statement; and
(d) if section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and
(e) if section 19 is relied on, why the document is a business record; and
(f) if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and
(g) if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness.

(3) If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.
(4) The requirements of subsections (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.

(5) The Judge may dispense with the requirements of subsections (2), (3), and (4) if,—
(a) having regard to the nature and contents of the statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.

The rationale for the notice provision is to encourage admissibility decisions concerning hearsay to be made pre-trial where possible, and offers an opportunity to the other party not only to oppose the admission of the evidence, but also to obtain rebuttal evidence where the evidence is admitted (R v Morgan [2010] NZSC 23). The notice must state:

• The party’s intention to offer hearsay evidence
• The name of the maker of the statement (subject to any witness anonymity order)
• The contents of the statement, if it was made orally
• If s 18(1)(a) is relied on, the circumstances that provide reasonable assurance that the statement is reliable
• If s 19 is relied on, why the document is a business record
• If s 18(1)(b)(i) or s 19(1)(a) is relied on, why the person is unavailable as a witness
• If s 18(1)(b)(ii) or s 19(1)(c) is relied on, why undue expense or delay would be caused is the person were required to be a witness

If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.