Hearsay

Question 1

Definition, as per S 4 of Evidence Act 2006

Answer 1

“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.”

Question 2

Hearsay Rule, S 17 of Evidence Act 2006

Answer 2

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.

Question 3

S 18 of Evidence Act 2006

(1) A hearsay statement is admissible in any proceeding if -

Answer 3

(a) the circumstances relating to the statement provide reasonable assurances 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 S 20 and 22.

Question 4

Rationale/reason for the hearsay rule

Answer 4

The rationale lies in the lack of reliability of hearsay evidence.

Danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.

Question 5

“Circumstances,” that provide assurances as per S 16 (1) of Evidence Act

(a)-(e)

Answer 5

Circumstances, in relation to a statement by a person who IS NOT a witness, include -

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

Question 6

“Unavailable as a witness,” as per S 16(2) of Evidence Act

(a)-(e)

Answer 6

For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person -

(a) is dead
(b) is outside NZ and it is not reasonably practical for him/her to be a witness
(c) is unfit to be a witness because of age or physical or mental condition
(d) cannot with reasonable diligence be identified or found
(e) is not compellable to give evidence

Question 7

Further rule around unavailability, as per S 16 (3)

Answer 7

16(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.

Question 8

Admissibility of hearsay statements contained in business records

as per S 19(1) (a), (b) and (c)

Answer 8

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 to recollect the matters dealt with in the information he/she supplied; or

(c) the judge considers that UNDUE EXPENSE or DELAY would be caused if that person were required to be a witness.

Question 9

Business Record means…

Answer 9

A document that is made:

• to comply with a duty or in the course of business, and as a record or part of a record of that business.
• 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/she supplied.

Question 10

S 22 (1) - In a criminal proceeding, no hearsay statement may be offered in evidence unless -

Answer 10

(a) the party proposing to offer the statement has complied with the requirements of (2), (3) and (4); or
(b) every other party has waived those requirements; or
(c) the judge dispenses with those requirements

Question 11

Requirements of Notice as per S 22 (2)

The proposing party must provide every other party with a written notice stating:

(a)-(g)

Answer 11

(a) party’s intention to offer the hearsay statement
(b) the name of the statement’s maker
(c) if the statement was made orally, the contents of it
(d) if S 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that it is reliable
(e) if S 19 is relied on, why the document is a business record
(f) if the person is unavailable as a witness, why
(g) if undue expense or delay would occur, why

Question 12

S 22(3)

If the hearsay statement was made in writing…

Answer 12

…the notice must be accompanied by a copy of the document in which the statement is contained.

Question 13

Rationale for S 22

Answer 13

To encourage admissibility decisions concerning hearsay to be made pre-trial.