Status: Published
Project overview
The Evidence Act 2006 brings together most of the rules of evidence in a single statute. In accordance with section 202 of the Act, Te Aka Matua o te Ture | Law Commission has reviewed the operation of the Act every five years. In February 2022, the Government asked us to carry out our third, and final, statutory review of the Act.
The scope of our review is set out in the terms of reference, which were published on 28 September 2022.
We completed our review and presented our report to the Minister of Justice on 23 February 2024.
We published our final report on 22 March 2024.
The laws of evidence are vital to the just and efficient operation of court proceedings. The Evidence Act 2006 sets out the rules that govern what evidence can be admitted in criminal and civil proceedings, and how it may be given. The Act is largely based on recommendations made to the government by the Commission in 1999. In recognition of the importance of the law of evidence, Parliament created a legal requirement in the Act for the Commission to review the operation of the Act every five years to make sure it was working well in practice. That requirement has now been repealed. This was therefore the Commission’s final statutory review of the Act.
The review was carried out in accordance with section 202 of the Evidence Act 2006. Because this was an operational review, we only considered issues if they were causing (or have the potential to cause) real problems in practice.
We did not review amendments to the Act made by the Sexual Violence Legislation Act 2021. This was because the amendments have not been in place long enough to determine if they are causing operational problems.
We published an Issues Paper for public consultation, which presented potential issues and reform options. Consultation was open for six weeks from 8 May to 30 June 2023. We received over forty submissions from a range of interested parties. This feedback informed our final conclusions and recommendations.
We also received significant feedback from our Expert Advisory Group of legal practitioners and academics, a Judicial Advisory Committee appointed by the Chief Justice and the Commission’s Māori Liaison Committee.
We have made 27 recommendations. These cover a range of issues relating to the admissibility of evidence and trial processes across civil and criminal proceedings.
Key recommendations include:
- Creating a new exception for mātauranga (Māori knowledge) and tikanga from the application of the hearsay provisions;
- allowing the admission of statements from witnesses who, due to factors such as intimidation, are too fearful to give evidence in court;
- reforming the balancing test for admitting improperly obtained evidence to provide greater guidance to the courts on how to balance the competing public interests at stake;
- creating specific safeguards for the admissibility of evidence from prison informants;
- clarifying the provisions governing the admission of propensity and veracity evidence;
- extending medical privilege to a wider range of healthcare workers; and
- clarifying the duty to cross-examine witnesses.
Facilitating admission of relevant mātauranga and tikanga evidence
The Act’s general rules against hearsay and opinion evidence can create challenges for the admission of mātauranga and tikanga evidence, particularly evidence deriving from the tradition of oral history or kōrero tuku iho in te ao Māori.
We recommend creating an exception to the hearsay rule for evidence of mātauranga and tikanga. This will promote more efficient conduct of proceedings and normalise the admission of tikanga and mātauranga (including oral history). We also recommend the Rules Committee consider reviewing and amending the Code of Conduct for expert witnesses to better recognise and provide for the admission of evidence of tikanga and mātauranga as expert opinion evidence.
Admitting hearsay statements from fearful persons
The Act only permits a person’s out-of-court statement (hearsay) to be admitted in very limited circumstances. This is aimed at protecting a defendant’s fair trial rights by only admitting evidence which can be challenged in cross-examination. Currently, this can result in evidence being excluded if a witness is too fearful to give evidence to the court.
We recommend amending the Act to allow a person’s out-of-court statement to be admitted if that person has a reasonable fear of retaliation if they give evidence. Retaliation is not limited to physical harm. To ensure a defendant’s fair trial rights are still protected, our recommendation is narrowly framed and includes additional safeguards for the admission of this evidence.
Reforming the test for admitting improperly obtained evidence
Improperly obtained evidence is evidence obtained through a breach of the law by a public official (such as a police officer) or obtained unfairly. It can include, for example, physical evidence that is obtained through an unlawful search, or a statement made in response to unfair police questioning.
There are long-standing concerns that judicial decisions about improperly obtained evidence are inconsistent, unpredictable and too skewed towards admitting improperly obtained evidence. Recent cases suggest judges sometimes give less weight to improprieties than was intended when the test for admitting improperly obtained evidence was originally developed by the courts and codified by Parliament. These cases also indicate that the test is not being applied in a consistent way.
We recommend amending the Act to exclude improperly obtained evidence unless the judge is satisfied that the public interest in recognising the seriousness of the impropriety is outweighed by the public interest in having the evidence considered by the judge or jury at trial. We also recommend clarifying the factors that are relevant to that assessment and how they should be applied.
Creating specific safeguards for the admissibility of prison informant evidence
Currently the Act does not contain any specific requirements for the admission and use of evidence from prison informants. Prison informant evidence carries a significant risk of unreliability because prison informants are often incentivised to give evidence. There have been high profile instances of wrongful convictions based in part on false prison informant evidence.
We recommend creating a new provision that will only allow prison informant evidence to be used if it meets an appropriate standard of reliability. This will ensure that judges undertake a careful and thorough assessment of the evidence before it can be used in criminal proceedings.
Modernising medical privilege
The Act creates a privilege in criminal proceedings for certain communications made to, and information obtained by, doctors or clinical psychologists. This means the information cannot be used in court. It only applies when someone is seeking treatment for drug dependency or other conditions which may manifest in criminal behaviour.
The purpose of the privilege is to encourage people to seek and engage openly in medical treatment without fear that it might be used against them. Currently, it is not always clear whether and when information shared with doctors or clinical psychologists, or other health practitioners, will be privileged.
We recommend amending the Act to clarify that information shared in the course of court-ordered treatment (for example, where someone has been ordered to attend a counselling programme by a judge) is privileged. This will ensure people engage fully and honestly in treatment, without fear of recrimination, as was the original intention of the privilege.
We also recommend extending the privilege to apply to communications made to other healthcare practitioners (such as nurses or paramedics) and clarifying when another health practitioner will be acting “on behalf of” a doctor or clinical psychologist, so that communications made in these circumstances are also privileged. This would better reflect modern healthcare provision and practice, where patients may interact with a number of different practitioners in the course of care and treatment.
We make several recommendations to improve the operation of the Act in civil proceedings. These include recommendations to:
- Amend the Act so that hearsay statements are admissible in civil proceedings unless challenged in accordance with the relevant rules of court. This will promote the efficient conduct of proceedings and resolve inconsistencies between the Act and the High Court Rules on the admissibility of hearsay statements in civil proceedings.
- Amend section 92 to clarify the extent of the duty to cross-examine witnesses. This will assure lawyers and judges that rigid and exhaustive cross-examination of witnesses is not always required, reducing unnecessary questioning of witnesses.
- Reform the Act’s provisions relating to legal advice privilege, litigation privilege, settlement privilege and successive interests in privileged information (such as where a company being sued is sold to a new owner)
The Commission made 27 recommendations in its Second Review of the Evidence Act. The Government response explains that the Government agreed to progress or accepted a majority of the Commission ’s recommendations. Some of these recommendations have since been implemented by the Sexual Violence Legislation Act 2021. Unless indicated otherwise in our Third Review, the recommendations from the Second Review still stand.
The Government will consider our recommendations and decide whether to implement them.
Status: Published
Terms of reference
Te Aka Matua o te Ture | Law Commission will undertake a review of the Evidence Act 2006 (the Act) in accordance with section 202 of the Act.
This will be the Commission’s third review of the Act. The first review was completed in 2013 and the second review was completed in 2019. This will also likely be the Commission’s final review of the Act under section 202, as the Statutes Amendment Act 2022 has now repealed section 202 from the Act.
Scope of the review
In accordance with section 202 of the Act, the Commission will consider:
- the operation of the provisions of the Act in civil and criminal proceedings, with a particular focus on the operation of the Act since the Commission’s second review; and
- whether repeal or amendment of any provisions of the Act are necessary or desirable.
The Commission will publish an issues paper for public consultation in mid-2023. The issues paper will explore issues with the operation of the Evidence Act and options for reform. Some key areas that the issues paper will address include:
- the admissibility of defendants’ statements in criminal proceedings (ss 27-30);
- the process for determining the admissibility of improperly obtained evidence in criminal proceedings (s 30);
- the admissibility of statements allegedly made by defendants to fellow prisoners and other incentivised witnesses; and
- the admissibility of propensity evidence offered by the prosecution about defendants (s 43).
The review will include consideration of te Tiriti o Waitangi | the Treaty of Waitangi, ao Māori perspectives on evidence and any matters of particular concern to Māori.
This review will not consider amendments to the Act made by the Sexual Violence Legislation Act 2021 given the recency of those amendments.
The Commission is required to report to the Minister in February 2024.
Status: Published
Issues Paper
Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023)
Te Aka Matua o te Ture | Law Commission published an issues paper in its third review of the Evidence Act 2006 on 8 May 2023.
The purpose of the Issues Paper was to seek feedback on how the Evidence Act 2006 is operating in practice. It examines potential issues we have identified with the operation of the Act, and sets out our initial analysis and options for reform. The feedback received will help the Commission decide what recommendations to make to the Government.
The topics discussed in the Issues Paper are:
- Te ao Māori and the Evidence Act
- Hearsay
- Defendants’ and co-defendants’ statements
- Unreliable statements
- Investigatory techniques and risks of unreliability
- Improperly obtained evidence
- Prison informants and incentivised witnesses
- Veracity evidence
- Propensity evidence
- Identification evidence
- Medical privilege
- Other privilege issues
- Trial process
- Other issues: section 9 (admission by agreement) and the role of the judge, novel scientific evidence and undercover police officer evidence.
Submissions closed on 30 June 2023.
Submissions
During our review of the Evidence Act 2006, the Commission invited submissions on the matters discussed in our Issues Paper. We received 46 submissions. The submissions received were invaluable as we considered the issues and developed the recommendations for reform in our final report.
You can read the submissions below.
In some submissions, information has been redacted to protect the privacy of the submitter(s) and/or third parties, or where publication may expose the Commission to legal liability, such as information that is subject to a court suppression order or that may be defamatory.