Hearsay

Question 1

What is S4 EA 06 Hearsay statement

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

What is S4 EA 06 Statement

Answer 2

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

Question 3

Are Hearsay Statements admissible?

Answer 3

Under S17 EA 06 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.

Question 4

Discuss the purpose of hearsay evidence

Answer 4

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”.

Question 5

What is S17 EA 06 Hearsay Evidence

Answer 5

(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.

Question 6

What is S18 EA 06 General Admissibility of hearsay evidence

Answer 6

(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

Question 7

What are the two criteria for hearsay to be admissible?

Answer 7

*reliability, and
* unavailability, or that “undue expense or delay would be caused”

Question 8

Discuss the rationale of the rule against hearsay lies in the lack of RELIABILITY of hearsay

Answer 8

• 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.

Question 9

Define S16(1) EA 06 Circumstances

Answer 9

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

Question 10

What is discussed in R v Gwaze and Hearsay

Answer 10

“[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.”

Question 11

What does Section 16(2) EA 06 defines “unavailable as a witness” as?

Answer 11

(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.

Question 12

Elaborate on S16(2)(b) EA 06 Outside NZ and it is not reasonable practicable for them to be a witness

Answer 12

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

Question 13

Define S16(2)(c) EA 06 Unfit witness because of age/Physical/mental condition

Answer 13

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

Question 14

Define S16(2)(e) EA 06 Not compelled to give evidence

Answer 14

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.

Question 15

Define S16(3) EA 06 Unavailability or undue expense or delay

Answer 15

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.

Question 16

What is S19 EA 06 Admissibility of hearsay statements contained in business records

Answer 16

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

Question 17

What is a business record as defined in S19(1) EA 06?

Answer 17

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.

Question 18

S22 EA 06 Notice Requirement for Hearsay evidence.

Answer 18

(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 Evidence 45 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.