Hearsay Flashcards
Hearsay statement defined
The Evidence Act 2006 made significant changes to the previous law relating
to hearsay evidence. Common law exceptions to the rule generally no longer
apply.
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”
“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.
Hearsay statements are not admissible except where there is provision for
admissibility in the Evidence Act 2006 or any other Act; or where there is
express provision that the hearsay rules do not apply (section 17 Evidence
Act 2006).
“Other than a witness”
The definition of hearsay means that out-of-court statements made by a
“witness” (someone who gives evidence and is able to be cross-examined in a
proceeding) are not hearsay. This applies even if the person who made the
statement does not give evidence-in-chief on the statement made out of court,
because the statement maker is available to be cross-examined. The ability to
cross-examine the maker of the statement means that the primary rationale for
the rule against hearsay (the inability to test the credibility and accuracy of
the maker) is not applicable. Such statements may still be inadmissible by
virtue of another rule under the Act (for example, s37 veracity rule).
Unintended assertions are not statements (and so are not hearsay statements)
The definition of “statement” does not include a statement or non-verbal
conduct that is not intended to be an assertion. For example, 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.
Purpose for which evidence is offered
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. A statement offered for some other purpose, for example merely to show
that the statement was made, is not a hearsay statement and need not meet the
hearsay admissibility test in s18 of the Evidence Act 2006. The admissibility of
statements offered for a purpose other than proving the truth of their contents will
depend on ss 7 and 8, if no other specific admissibility rules apply.
For 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”.
Hearsay rule
Section 17 of the Evidence Act 2006 sets out the general exclusionary rule for
hearsay:
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.
Hearsay evidence that would be admissible under other provisions in the Act
(for example, visual identification evidence) must nevertheless also comply
with the hearsay rules, unless the operation of the hearsay rule is expressly
excluded.
General admissibility of hearsay
Section 18 of the Evidence Act 2006 contains the main exception to the
exclusionary rule and it is a major reform of the common law rule. It provides
that:
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.
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 Act 2006 must also be met
before a hearsay statement can be admitted.
Reliability
The rationale of the rule against hearsay lies in the lack of reliability of
hearsay evidence:
* 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.
The reason for the rule’s existence is therefore the danger of attributing
undeserved weight to evidence which cannot be adequately or properly tested.
Section 18(1) makes a hearsay statement admissible if the circumstances
relating to the statement provide reasonable assurance that the statement is
reliable. The focus of s18(1)(a) is the reliability of the hearsay statement
itself, not the person who intends to give the hearsay evidence. It is a
threshold test for admissibility.
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.
Section 16(1) Evidence Act 2006 defines “circumstances”:
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
This is a non-exhaustive definition. It provides the list of matters the court should
consider when determining whether the “circumstances relating to the statement
provide reasonable assurance that the statement is reliable” (s18).
Relevant considerations may include whether it is written or oral, signed,
witnessed, first-hand, etc. The circumstances relating to the making of the
statement may include issues such as the physical environment, how long after
the event the statement refers to, what the relationship between the maker and the
witness was and so on. In R v Gwaze at [45], the Supreme Court stated that:
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.”
Unavailability or undue expense and delay
In addition to a requirement of reliability, a hearsay statement will only be
admissible where the maker of the statement is unavailable, or undue expense
or delay would be caused by requiring the person to be a witness.
Section 16(2) defines what is meant by “unavailable as a witness”:
(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.
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.
Section 16(2)(c) allows the inquiry into unavailability to relate to the effect of
youth, as well as age, on the ability to be a witness. Section 16(2)(d) makes it
clear that an inability to either identify or find a person renders them
unavailable, in comparison to the former provision that referred only to an
inability to be found.
Under s16(2)(e), those who cannot be compelled to testify (for example, the
Sovereign (s74) and the defendant in a criminal case) are considered
“unavailable as a witness” for the purposes of the hearsay rule. However,
evidence of defendant’s statements are limited by s21, which provides that if
a defendant does not give evidence he or she may not offer his or her own
hearsay statement in evidence. Pre-trial statements of a defendant in a
criminal case may be offered by the prosecution in accordance with ss 27-30,
to which the hearsay rule does not apply.
Unavailability or undue expense and delay (continued)
Section 16(3) provides that:
(3) Subsection (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.
Section 16(3) is aimed at preventing a party from benefiting from rendering
someone unavailable to testify (for example, where the party kidnaps or kills
the maker of the statement). The subsection also applies when a party
anticipates that the maker may not testify consistently with the out-of-court
statement, and intentionally causes them to be unavailable in an attempt to
offer the hearsay evidence.
Admissibility of hearsay statements contained in business records
Section 19 of the Evidence Act 2006 largely re-enacts s3(1) of the Evidence
Amendment Act (No 2) 1980:
19 Admissibility of hearsay statements contained in business records
(1) 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 (having regard to
the time that has elapsed since he or she supplied the information and to all the
other circumstances of the case) to recollect the matters dealt with in the
information he or she supplied; or
44 Evidence
(c) the Judge considers that undue expense or delay would be caused if that person
were required to be a witness.
(2) This section is subject to sections 20 and 22.
Under s19(1), a business record means a document that is made:
* to comply with a duty or in the course a 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 or she supplied.
This definition includes a statement made to a police officer and written down
in his or her notebook or job sheets.
Unlike s18, there is no requirement of “reasonable assurance that the
statement is reliable”. However, any challenge to the reliability of the
statement may still affect the weight accorded to the evidence, or may lead to
exclusion under s8.
A business record will be admissible where no useful purpose would be
served by requiring the person to be a witness because there can be no
reasonable expectation that the person will be able to recollect the matters
dealt with in the information supplied for the business record.
Notice requirement
It has been noted that notice of hearsay must be given in order to have a
hearsay statement admitted under s18 or s19. The notice requirement is
contained in s22:
22 Notice of hearsay in criminal proceedings
(1) In a criminal proceeding, no hearsay statement may be offered in evidence unless—
(a) the party proposing to offer the statement has complied with the requirements
of subsections (2), (3), and (4); or
(b) every other party has waived those requirements; or
(c) the Judge dispenses with those requirements.
(2) A party who proposes to offer a hearsay statement in a criminal proceeding, must
provide every other party with a written notice stating—
(a) the party’s intention to offer the hearsay statement in evidence; and
(b) the name of the maker of the statement, if known (subject to the terms of any
witness anonymity order); and
(c) if the hearsay statement was made orally, the contents of the hearsay statement;
and
(d) if section 18(1)(a) is relied on, the circumstances relating to the statement that
provide reasonable assurance that the statement is reliable; and
(e) if section 19 is relied on, why the document is a business record; and
(f) if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a
witness; and
(g) if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness.
(3) If the hearsay statement was made in writing, the notice must be accompanied by a
copy of the document in which the statement is contained.
(4) The requirements of subsections (2) and (3) must be complied with in sufficient time
before the hearing to provide all other parties to the proceeding with a fair opportunity
to respond to the statement.
(5) The Judge may dispense with the requirements of subsections (2), (3), and (4) if,—
(a) having regard to the nature and contents of the statement, no party is
substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.
The rationale for the notice provision is, where possible, to encourage
admissibility decisions concerning hearsay to be made pre-trial.
