The laws of evidence are vital to the just and efficient operation of court proceedings. The Evidence Act 2006 sets out the rules that govern what evidence can be admitted in criminal and civil proceedings, and how it may be given. The Act is largely based on recommendations made to the government by the Commission in 1999. In recognition of the importance of the law of evidence, Parliament created a legal requirement in the Act for the Commission to review the operation of the Act every five years to make sure it was working well in practice. That requirement has now been repealed. This was therefore the Commission’s final statutory review of the Act.

The review was carried out in accordance with section 202 of the Evidence Act 2006. Because this was an operational review, we only considered issues if they were causing (or have the potential to cause) real problems in practice.

We did not review amendments to the Act made by the Sexual Violence Legislation Act 2021. This was because the amendments have not been in place long enough to determine if they are causing operational problems.

We published an Issues Paper for public consultation, which presented potential issues and reform options. Consultation was open for six weeks from 8 May to 30 June 2023. We received over forty submissions from a range of interested parties. This feedback informed our final conclusions and recommendations.

We also received significant feedback from our Expert Advisory Group of legal practitioners and academics, a Judicial Advisory Committee appointed by the Chief Justice and the Commission’s Māori Liaison Committee.

We have made 27 recommendations. These cover a range of issues relating to the admissibility of evidence and trial processes across civil and criminal proceedings.

Key recommendations include:

• Creating a new exception for mātauranga (Māori knowledge) and tikanga from the application of the hearsay provisions;
• allowing the admission of statements from witnesses who, due to factors such as intimidation, are too fearful to give evidence in court;
• reforming the balancing test for admitting improperly obtained evidence to provide greater guidance to the courts on how to balance the competing public interests at stake;
• creating specific safeguards for the admissibility of evidence from prison informants;
• clarifying the provisions governing the admission of propensity and veracity evidence;
• extending medical privilege to a wider range of healthcare workers; and
• clarifying the duty to cross-examine witnesses.

Facilitating admission of relevant mātauranga and tikanga evidence

The Act’s general rules against hearsay and opinion evidence can create challenges for the admission of mātauranga and tikanga evidence, particularly evidence deriving from the tradition of oral history or kōrero tuku iho in te ao Māori.

We recommend creating an exception to the hearsay rule for evidence of mātauranga and tikanga. This will promote more efficient conduct of proceedings and normalise the admission of tikanga and mātauranga (including oral history). We also recommend the Rules Committee consider reviewing and amending the Code of Conduct for expert witnesses to better recognise and provide for the admission of evidence of tikanga and mātauranga as expert opinion evidence.

Admitting hearsay statements from fearful persons

The Act only permits a person’s out-of-court statement (hearsay) to be admitted in very limited circumstances. This is aimed at protecting a defendant’s fair trial rights by only admitting evidence which can be challenged in cross-examination. Currently, this can result in evidence being excluded if a witness is too fearful to give evidence to the court.

We recommend amending the Act to allow a person’s out-of-court statement to be admitted if that person has a reasonable fear of retaliation if they give evidence. Retaliation is not limited to physical harm. To ensure a defendant’s fair trial rights are still protected, our recommendation is narrowly framed and includes additional safeguards for the admission of this evidence.

Reforming the test for admitting improperly obtained evidence

Improperly obtained evidence is evidence obtained through a breach of the law by a public official (such as a police officer) or obtained unfairly. It can include, for example, physical evidence that is obtained through an unlawful search, or a statement made in response to unfair police questioning.

There are long-standing concerns that judicial decisions about improperly obtained evidence are inconsistent, unpredictable and too skewed towards admitting improperly obtained evidence. Recent cases suggest judges sometimes give less weight to improprieties than was intended when the test for admitting improperly obtained evidence was originally developed by the courts and codified by Parliament. These cases also indicate that the test is not being applied in a consistent way.

We recommend amending the Act to exclude improperly obtained evidence unless the judge is satisfied that the public interest in recognising the seriousness of the impropriety is outweighed by the public interest in having the evidence considered by the judge or jury at trial. We also recommend clarifying the factors that are relevant to that assessment and how they should be applied.

Creating specific safeguards for the admissibility of prison informant evidence

Currently the Act does not contain any specific requirements for the admission and use of evidence from prison informants. Prison informant evidence carries a significant risk of unreliability because prison informants are often incentivised to give evidence. There have been high profile instances of wrongful convictions based in part on false prison informant evidence.

We recommend creating a new provision that will only allow prison informant evidence to be used if it meets an appropriate standard of reliability. This will ensure that judges undertake a careful and thorough assessment of the evidence before it can be used in criminal proceedings.

Modernising medical privilege

The Act creates a privilege in criminal proceedings for certain communications made to, and information obtained by, doctors or clinical psychologists. This means the information cannot be used in court. It only applies when someone is seeking treatment for drug dependency or other conditions which may manifest in criminal behaviour.

The purpose of the privilege is to encourage people to seek and engage openly in medical treatment without fear that it might be used against them. Currently, it is not always clear whether and when information shared with doctors or clinical psychologists, or other health practitioners, will be privileged.

We recommend amending the Act to clarify that information shared in the course of court-ordered treatment (for example, where someone has been ordered to attend a counselling programme by a judge) is privileged. This will ensure people engage fully and honestly in treatment, without fear of recrimination, as was the original intention of the privilege.

We also recommend extending the privilege to apply to communications made to other healthcare practitioners (such as nurses or paramedics) and clarifying when another health practitioner will be acting “on behalf of” a doctor or clinical psychologist, so that communications made in these circumstances are also privileged. This would better reflect modern healthcare provision and practice, where patients may interact with a number of different practitioners in the course of care and treatment.

We make several recommendations to improve the operation of the Act in civil proceedings. These include recommendations to:

• Amend the Act so that hearsay statements are admissible in civil proceedings unless challenged in accordance with the relevant rules of court. This will promote the efficient conduct of proceedings and resolve inconsistencies between the Act and the High Court Rules on the admissibility of hearsay statements in civil proceedings.
• Amend section 92 to clarify the extent of the duty to cross-examine witnesses. This will assure lawyers and judges that rigid and exhaustive cross-examination of witnesses is not always required, reducing unnecessary questioning of witnesses.
• Reform the Act’s provisions relating to legal advice privilege, litigation privilege, settlement privilege and successive interests in privileged information (such as where a company being sued is sold to a new owner)

The Commission made 27 recommendations in its Second Review of the Evidence Act. The Government response explains that the Government agreed to progress or accepted a majority of the Commission ’s recommendations. Some of these recommendations have since been implemented by the Sexual Violence Legislation Act 2021. Unless indicated otherwise in our Third Review, the recommendations from the Second Review still stand.

The Government will consider our recommendations and decide whether to implement them.