Module 1 Admissibility rules, privilege, and conidentiality

Question 1

Section 16 (1) Interpretation: Business record

Answer 1

(a) Means any business, profession, trade, manufacture, occupation. (b) Includes the activities of any department of state, local authority, public body or society.

Question 2

Section 16 Business record

Answer 2

(a)(i) A document that is made to comply with a duty or (a)(ii) in the course of a business and as a record or part of a record of that business and (b) that is made 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.

Question 3

Section 16 Circumstances in relation to a statement by a person who is not a witness include;

Answer 3

(a) The nature of the statement and (b)the contents of the statement and (c)the circumstances that relate to 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 4

Section 16 (2) A person is unavailable as a witness in a proceeding if the person;

Answer 4

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

Question 5

Section 16 (3)

Answer 5

Subsection (2) does not apply to a person whose statement is sought to be offered in evidence by a party who has cause the person to be unavailable in order to prevent the person from attending or giving evidence.

Question 6

Section 17 hearsay rule

Answer 6

A hearsay statement is not admissible except

(a) as provided by this subpart or by provisions of any other act or
(b) (i)in cases where this act provides that this subpart does not apply and (ii) the hearsay statement is relevant and not otherwise inadmissible under this act.

Question 7

Section 18 (1) General admissibilty of hearsay

Answer 7

(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 either (b)(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.

Question 8

Section 18 (2)

Answer 8

This section is subject to sections 20 and 22

Question 9

Section 19 Admissibility of hearsay statements contained in business records;

Answer 9

(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 (c) the judge considers that undue expense or delay would be caused if that person were required to be a witness

Question 10

Section 19 (2)

Answer 10

This sections is subject to sections 20 and 22

Question 11

Section 20 Admissibility in civil proceedings of hearsay statements in documents related to applications, discovery or interrogatories

Answer 11

(1) In a civil proceeding, a hearsay statement in an affidavit made to support or oppose an application is admissible for the purposes of that application if and to the extent that, the applicable rules of court require or permit a statement of that kind to be made in the affidavit.
(2) In a civil proceeding, a hearsay statement in a document by which documents are discovered or interrogatories are answered is admissible in that proceeding if and to the extent that the applicable rules of court require or permit the making of a statement of that kind.

Question 12

Section 21 Defendant who does not give evidence in criminal proceeding may not offer own statement.

Answer 12

(1) If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.
(2) To avoid any doubt this section does not limit the previous consistent statement rule.

Question 13

Section 22 Notice of hearsay in a criminal proceedings

Answer 13

(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 partys intention to offer hearsay statement in evidence and (b) The name of the maker of the statement, if known (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.

Question 14

Subpart 2 - Statements of opinion and expert evidence 23 Opinion rule

Answer 14

A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25

Question 15

24 General admissibility of opinions

Answer 15

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact finder to understand, what the witness saw, heard or otherwise perceived.

Question 16

25 Admissibility of expert opinion evidence

Answer 16

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding (2) An opinion by an expert is not admissible simply because it is about (a) an ultimate issue to be determined in a proceeding or (b) a matter of common knowledge. (3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact finder only if that fact is or will be proved or judicially noticed in the proceeding. (4) If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the persons state of mind then (a) the statement of the person is admissible to establish the facts on which the experts opinion is based and (b) neither the hearsay rule not the previous consistent statements rule applies to evidence of the statement made by the person.

Question 17

25 Admissibility of expert opinion evidence Section (5)

Answer 17

Subsection (3) is subject to subsection (4)

Question 18

26 Conduct of experts in civil proceedings

Answer 18

(1) In a civil proceeding, experts are to conduct themselves in preparing and giving expert evidence in accordance with the applicable rules of court relating to the conduct of experts.
(2) The expert evidence of an expert who has not complied with rules of court of the kind specified in subsection (1) may be given only with the permission of the judge.