Hearsay

Question 1

Hearsay statement

Answer 1

(a) was made by a person other than witness, and
(b) is offered in evidence to prove the truth of its contents

Question 2

Statement

Answer 2

A spoken or written assertion, or non-verbal conduct of a person that is intended as an assertion

Question 3

Hearsay statements - general rule

Answer 3

Hearsay statements are not admissible except where there is a provision for admissibility in the Evidence Act 2006, or where there is express provision that the Hearsay rule does not apply

Question 4

Focus of the Hearsay Rule

Answer 4

The focus of the Hearsay Rule is on the purpose for which the evidence is offered, rather than just the fact that the statement (disclosure etc) was made

Question 5

Section 18(1), Evidence Act 2006
(General admissibility of hearsay)

Answer 5

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 will be caused if the maker of the statement were required to be a witness

(a = reliability, b = unavailability)

Question 6

Issues with reliability (maker of statement not being present)

Answer 6

(1) Witness unable to be cross-examined on the statements contents
(2) Jury unable to see the demeanour of the person who made the statement
(3) Witnesses may make mistakes about the meaning or content of statements made by other people

Question 7

Section 16(1), Evidence Act 2006
(Circumstances relating to person making statement who is not a witness)

Answer 7

(a) Nature of the statement
(b) Contents of the statement
(c) Circumstances that relate to the making of the statement
(d) Circumstances that relate to the veracity of the person
(e) Circumstances that relate to the accuracy of the observation of the person

Question 8

Section 16(2), Evidence Act 2006
(Unavailable as a witness - definition)

Answer 8

A person is unavailable as a witness in a proceeding if the person is -

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

Question 9

Section 16(3), Evidence Act 2006
(Party who caused person to be unavailable)

Answer 9

Subsection two 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 10

Section 19(1), Evidence Act 2006
(Admissibility of Hearsay statements - business records)

Answer 10

A hearsay statement contained in a business record is admissible if -

(a) the person who supplied the information is unavailable as a witness, or
(b) Judge considers that no useful purpose would be served by requiring that person to be a witness (as person cannot reasonable be expected to recollect the matters), or
(c) Judge considers that undue expense or delay would be caused

Question 11

Section 22(2), Evidence Act 2006
(Notice of hearsay in criminal proceedings)

Answer 11

A party who proposes to offer hearsay statements in proceedings must provide every other party with written notice stating -

(a) Party’s intention to offer hearsay statement in evidence, and
(b) Name of the maker of the statement, and
(c) Contents of the hearsay statement (if made orally), and
(d) If s18(1)(a) relied upon, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable, and
(e) If s19 relied upon, why the document is a business record, and
(f) If s18(1)(b)(i) or s19(1)(a) relied on, why the person is unavailable as a witness, and
(g) If s18(1)(b)(ii) or 19(1)(c) relied on, why undue expense or delay would be caused

Question 12

Section 22(5), Evidence Act 2008
(Notice of Hearsay - Judge dispense requirements)

Answer 12

The Judge may dispense the requirements of subsections (2), (3), (4) if -

(a) having regard to the nature and contents of the statement, no party is substantially prejudiced by failure to comply with those requirements, or
(b) compliance was not reasonably practicable, or
(c) the interests of justice so require