Law Commission recommends changes to evidence law

Published: 22 March 2024

Law Commission recommends changes to evidence law

Changes to the Evidence Act 2006 are needed to promote the just and efficient determination of court proceedings, concludes Te Aka Matua o te Ture | Law Commission in its report Te Arotake Tuatoru i te Evidence Act 2006 |The Third Review of the Evidence Act 2006, presented to Parliament today.

Amokura Kawharu, Law Commission President and lead Commissioner for the review, said:

“The Evidence Act governs what evidence can be admitted in civil and criminal cases and how that evidence can be given. It plays a vital role in facilitating the fair, just and speedy determination of proceedings.

In general the Act is working well in practice, but there are some areas where we think reform is warranted. For example, there have been longstanding concerns about the operation of the hearsay rule, which may prevent a person’s statement from being used if they do not give evidence in court, and the improperly obtained evidence rule, which governs the use of evidence that has been obtained unlawfully or unfairly.

Our recommendations respond to these longstanding concerns as well as emerging issues in evidence law, and will help to ensure the Act is fit for purpose in the future.”

The report marks the conclusion of the Commission’s third and final periodic review of the operation of the Act. The Act formerly required the Commission to conduct five-yearly reviews, but this requirement has now been repealed.

Key recommendations include:

  • Creating a new exception for mātauranga (Māori knowledge) and tikanga from the application of the hearsay rules to normalise its use as evidence.
  • Allowing the admission of out-of-court statements from witnesses who are too fearful to give evidence in court due to factors such as intimidation.
  • Reforming the improperly obtained evidence rule to provide greater guidance to the courts on how to balance the competing public interests at stake and to encourage more consistent admissibility decisions.
  • Creating specific safeguards for the admission of evidence from prison informants.
  • Extending medical privilege to a wider range of healthcare practitioners to better achieve the purpose of the privilege and align it with modern healthcare provision.
  • Amending the Act to increase efficiency in civil proceedings, including by resolving inconsistencies with the High Court Rules 2016 regarding hearsay evidence, clarifying the duty to cross-examine and clarifying the laws regarding legal and litigation privilege.
  • Clarifying other provisions in the Act that have caused uncertainty or problems in practice, including those dealing with co-defendants’ statements, veracity evidence, propensity evidence and visual identification evidence.

In developing its recommendations, the Commission was informed by consultation with the legal profession, judiciary, academic experts, members of the public and interested organisations.

The Government will now consider the Commission’s recommendations and decide whether to reform the law.