3. The Exclusive Rules of Evidence - Hearsay Flashcards
Outline hearsay statement?
Must Know
Under the Act, a hearsay statement is defined as (s4):
“a statement that –
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”
Define statement
Must Know
“Statement” means (s4):
* 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.
The definition of “statement” does not inlcude a statemetn or non-verbal conduct that is not intended to be an assertion. What is an example of this?
if an experienced seaman checked over a yacht before taking his family on it, this may imply that the vessel was seaworthy. Under previous law, such an implied assertion would have been likely to have been seen as hearsay. Now, unless it was clear that the man intended to assert that the yacht was seaworthy, it will not be a statement and will not be hearsay.
What is the focus of the hearsay rule?
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-ofcourt
The admissibility of statements offered for a purpose other than proving the truth of their contents will depend on ss7 and 8 S18 EA06 if not otehr specific admissibility rules apply. Provide an example?
Where a doctor states that his or her patient 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”
Outline the hearsay rule in S17 EA06?
17 Hearsay rule
(1) A hearsay statement is not admissible except—
(a) as provided by this subpart or by the provisions of any other Act; or
(b) in cases where—
(i) this Act provides that this subpart does not apply; and
(ii) the hearsay statement is relevant and not otherwise inadmissible under
this Act.
Outline general admissibility of hearsay in S18 EA06?
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.
What does S18 make clear regarding admissibility?
Must Know
Section 18 makes it clear that there are two criteria for admissibility:
* reliability, and
* unavailability, or that “undue expense or delay would be caused”.
The notice requirement in s22 of the Evidence
The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence in certain situations. What are theses?
Must Know
- 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.
What is meant by reasonable assurance?
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
S16(1) EA06 defines “circumstances”. Outline the circumstances?
Must Know
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
S18 outlines the relevant matters the court should consider in relation to S18.
Relevant considerations may include whether it is written or oral, signed, witnessed, first-hand, etc.
What did the supreme court state in R v Gwaze in relation to the circumstances relating to the making of the statement?
In R v Gwaze24 said “[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.”
What is meant by “unavaialble witness” in S16(2)?
(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.
What is the emphasis in S16(2)(b)?
The emphasis in s16(2)(b) is on whether the person cannot be a “witness”. It is likely that the increasing use of technology, including the use of video-link – see s168 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.
