Evidence Act 2006

Question 1

s4 Interpretation

Answer 1

4 Interpretation

admission, in relation to a civil proceeding, means a statement that is—

1. (a) made by a person who is or becomes a party to the proceeding; and
2. (b) adverse to the person’s interest in the outcome of the proceeding

child means a person under the age of 18 years

child complainant, in relation to any proceeding, means a complainant who is a child when the proceeding commences

common bundle means a compilation of documents that the parties to a civil proceeding wish to offer in evidence at the hearing of the proceeding, being a compilation that—

1. (a) is prepared in accordance with rules of court or the practice of a court; and
2. (b) is filed in court

communication assistance means oral or written interpretation of a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication with a person who—

1. (a) does not have sufficient proficiency in the English language to—
   
   1. (i) understand court proceedings conducted in English; or
   2. (ii) give evidence in English; or
2. (b) has a communication disability

conviction means,—

1. (a) in sections 47 to 49, a subsisting conviction entered before or after the commencement of this Act by—
   
   1. (i) a New Zealand court or a court-martial conducted under New Zealand law in New Zealand or elsewhere; or
   2. (ii) a court established by, or a court-martial conducted under, the law of Australia, United Kingdom, Canada, or any other foreign country in respect of which an Order in Council has been made under section 140(5); and
2. (b) in sections 139 and 140, a subsisting conviction entered before or after the commencement of this Act by a New Zealand or foreign court or a court-martial conducted under New Zealand or foreign law

copy, in relation to a document, includes a copy of a copy and a copy that is not an exact copy of the document but is identical to the document in all relevant respects

country includes a State, territory, province, or other part of a country

court includes the Supreme Court, the Court of Appeal, the High Court, and any District Court

District Court includes—

1. (a) a Family Court; and
2. (b) a Youth Court

document means—

1. (a) any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds or from which symbols, images, or sounds can be derived, and includes—
   
   1. (i) a label, marking, or other writing which identifies or describes a thing of which it forms part, or to which it is attached:
   2. (ii) a book, map, plan, graph, or drawing:
   3. (iii) a photograph, film, or negative; and
2. (b) information electronically recorded or stored, and information derived from that information

domestic violence has the same meaning as in section 3(1) of the Domestic Violence Act 1995

enforcement agency means the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment

expert means a person who has specialised knowledge or skill based on training, study, or experience

expert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given

in the form of an opinion

foreign country means a country other than New Zealand

give evidence means to give evidence in a proceeding—

1. (a) in the ordinary way, as described in section 83; or
2. (b) in an alternative way, as provided for by section 105; or
3. (c) in any other way provided for under this Act or any other enactment

harassment has the same meaning as in section 3 of the Harassment Act 1997

hearsay rule means the rule described in section 17

hearsay statement means a statement that—

1. (a) was made by a person other than a witness; and
2. (b) is offered in evidence at the proceeding to prove the truth of its contents

hostile, in relation to a witness, means that the witness—

1. (a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
2. (b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
3. (c) refuses to answer questions or deliberately withholds evidence

incriminate means to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence

international organisation means an organisation of States or governments of States or an organ or agency of an organisation of that kind, and includes the Commonwealth Secretariat

interpreter includes a person who provides communication assistance to a defendant or a witness
investigative questioning means questioning in connection with the investigation of an offence or a possible offence by, or in the

presence of,—

1. (a) a [constable]; or
2. (b) a person whose functions include the investigation of offences

Judge includes a Justice of the Peace, a community magistrate, and any tribunal
lawyer means a barrister or solicitor, as those terms are defined in section 2 of the Law Practitioners Act 1982

leading question means a question that directly or indirectly suggests a particular answer to the question
offer evidence includes eliciting evidence by cross-examining a witness called by another party
opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact

opinion rule means the rule described in section 23
party means a party to a proceeding
previous consistent statements rule means the rule described in section 35
previous statement means a statement made by a witness at any time other than at the hearing at which the witness is giving evidence proceeding means—

1. (a) a proceeding conducted by a court; and
2. (b) any interlocutory or other application to a court connected with that proceeding

propensity rule means the rule described in section 40 public document —

(a)

means a document that—

(i)

(ii) (iii)

forms part of the official records of the legislative, executive, or judicial branch of the Government of New Zealand or of a foreign country or of a person or body holding a public office or exercising a function of a public nature under the law of New Zealand or a foreign country; or

forms part of the official records of an international organisation; or

is being kept by, or on behalf of, a branch of any government, person, body, or organisation referred to in subparagraph (i) or (ii), for the purpose of carrying out the official functions of that government, person, body, or organisation; but

6

(b) in sections 145 to 147, has the meaning set out in section 145 seal includes a stamp

self-incrimination means 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

sexual case means a criminal proceeding in which a person is charged with, or is waiting to be sentenced or otherwise dealt with for,—

1. (a) an offence against any of the provisions of sections 128 to 142A or section 144A of the Crimes Act 1961; or
2. (b) any other offence against the person of a sexual nature

statement means—

1. (a) a spoken or written assertion by a person of any matter; or
2. (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter

veracity rules means the rules described in section 37

video record means a recording on any medium from which a moving image may be produced by any means; and includes an accompanying sound track

visual identification evidence means evidence that is—

1. (a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
2. (b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)

voice identification evidence means evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence

witness means a person who gives evidence and is able to be cross-examined in a proceeding.

(2) A hearing commences for the purposes of this Act when at the substantive hearing of the issues that are the subject of proceedings the party having the right to begin commences to state that party’s case or, having waived the right to make an opening address, calls that party’s first witness.

Question 2

s7 Fundamental principle that relevant evidence admissible

Answer 2

7 Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) _excluded under this Act or any other Ac_t.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 3

8 General exclusion

Answer 3

8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

Question 4

35 Previous consistent statements rule

Answer 4

35 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness’s evidence i_s admissible if_—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.

Question 5

44 Evidence of sexual experience of complainants in sexual cases

Answer 5

44 Evidence of sexual experience of complainants in sexual cases

(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the r_eputation of the complainant_ in sexual matters.
(3) In an application for permission under subsection (1), the J_udge must not grant permission_ unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
(4) The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence _against the complainan_t, subsection (1) does not apply to any _evidence given, or any questio_n put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.

Question 6

s45 Admissibility of visual identification evidence

Answer 6

45 Admissibility of visual identification evidence

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that e_vidence is admissible_ in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:
(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

Question 7

87 Privacy as to witness’s precise address

Answer 7

87 Privacy as to witness’s precise address

(1) In any proceeding, the precise particulars of a witness’s address (for example, details of the street and number) may not, without the permission of the Judge, be—
(a) the subject of any question to a witness or included in any evidence given; or
(b) included in any statement or remark made by a witness, lawyer, officer of the court, or any other person.
(2) The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.
(3) An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.
(4) Nothing in subsection (1) applies in a criminal proceeding if it is necessary to disclose the particulars in the charge in order to ensure that the defendant is fully and fairly informed of the charge.

Question 8

s88 Restriction on disclosure of complainant’s occupation in sexual cases

Answer 8

88 Restriction on disclosure of complainant’s occupation in sexual cases

(1) In a sexual case, except with the permission of the Judge,—
(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation.
(2) The Judge must not grant permission under subsection (1) unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.
(3) An application for permission under subsection (1) may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers.

Question 9

121 Corroboration

Answer 9

121 Corroboration

Subpart 6—Corroboration, judicial directions, and judicial warnings (s 121 to s 127)

(1) 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—

(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) f_alse statements or declarations_ (section 111 of the Crimes Act 1961); and (d) treason (section 73 of the Crimes Act 1961).

(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.