Rules of Evidence: Hearsay

Question 1

Under section 4, a hearsay statement is defined as:

Answer 1

“a statement that-

was made by a person other than a witness; and

is offered in evidence at the proceeding to prove the truth of its contents.”

Question 2

Under section 4, a statement means

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

Section 17 of the Evidence Act: The exclusionary rule

Answer 3

A hearsay statement is not admissable except in cases where the hearsay rule is relevant and not otherwise inadmissable

Question 4

Section 18: General admissability of hearsay:

Answer 4

There are two criteria for admissability:

1) reliability
2) unavailability, or that undue expense or delay would be caused.

The notice requirement of section 22 must also be met before a hearsay statement can be admitted.

Question 5

Three reasons why hearsay statements can be considered unreliable:

Answer 5

1. no opportunity to cross examine the maker of a statement
2. juries cannot evaluate the person properly without seeing their demeanour
3. there is danger a witness may make mistakes about the meaning of the contents of a statement

Question 6

Section 16(1) Evidence Act definition of “circumstances”? (in relation to a statement by a person who is not a witness)

Answer 6

1. nature of statement
2. contents of the statement
3. circumstances that relate to the making of the statement
4. circumstances that relate to the veracity of the person
5. circumstances that relate to accuracy of the observation of the person

Question 7

Section 16(2) defines “unavailability as a witness”

Answer 7

a person is unavailable if they are-

a) dead
b) outside NZ, so not reasonably practicable to be witness
c) unfit due to age or mental condition
d) cannot with reasonable diligence be identified
e) is not compellable to give evidence

Question 8

Section 19: Admissability of hearsay statements contained in business records:

Answer 8

Are admissable if:

• the person who supplied the information is unavailable as witness
• the judge considers no useful purpose would be served by requiring that person to be a witness
• the judge considers that undue expense or delay would be caused if that person ere required as a witness

Question 9

Under s19(1), a business record means a document that is made:

Answer 9

• 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 by a person who had personal knowledge of the matters dealt with

Question 10

s22?

Answer 10

Notice of hearsay in criminal proceedings

The rationale for the notice provision is to encourage admissability decisions concerning hearsay to be made pre-trial.