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December 2007

The Evidence Act 2006

Prior to the Evidence Act 2006, the law of evidence was derived from hundreds of cases and legislative reforms. The Act therefore has codified the collection of case law and statutes with a single consistent code, with the purpose of making the law "as clear, simple and accessible as is practicable, and to facilitate the fair, just and speedy judicial resolution of disputes".

There is still limited room for the application of common law when interpreting the Act, however this arises when there is a gap in the Act and only when the common law is consistent with the purposes and principals of the Act. There is also provision allowing the Judiciary to have a legislative role in determining the rules by fairness, and therefore admissibility of statements, taken by the Police would be judged. This practice occurs by way of Practice Notes issued by the Chief Justice. There is limited scope also for particular Courts and Tribunals to accept any evidence that it thinks fit whether or not it is otherwise admissible in the Court of Law. Hence the Tribunals have been left with the discretion whether to apply the Act or not.

Purposes of the Act

The purposes of the Act are to help secure the just determination of proceedings by:

  • providing for facts to be established by the application of logical rules;
  • providing rules of evidence that recognise the importance of the rights
  • affirmed by the New Zealand Bill of Rights Act 1990;
  • promoting fairness to parties and witnesses;
  • protecting rights of confidentiality and matters of important public interest;
  • avoiding justifiable expense and delay; and
  • enhancing access to the law of evidence.

Fundamental Principle – Relevant Evidence Admissible

Evidence that is not relevant is inadmissible. It is relevant if the evidence tends "to prove or disprove anything that is of consequence to the determination of the proceeding". It is too early at this point to determine if this fundamental principle, provided for in the Act that a particular piece of evidence is admissible, will sway the balance in favour of greater admissibility than before.

General Exclusion Rule – Probative Value and Prejudicial Effects

The Evidence Act 2006 contains a general rule that in any proceeding the Judge must exclude any evidence if its probative value is outweighed by the risk that the evidence will:

  • Have an unfairly prejudicial effect of the outcome of the proceeding; or
  • Needlessly prolong the proceedings.

Previously the common law discretion to exclude evidence did not permit exclusion because of possible unnecessary prolongation, and was excisable in criminal cases only.

Spousal Immunity

One major change relates to the compellability of a spouse to give evidence in criminal proceedings.

Under the old law, the spouse of a person charged with an offence was a competent witness but there was no power for the Crown to compel that spouse to give evidence in a criminal trial without the consent of the person charged with the offence. The law afforded a further protection to spouses in any proceeding, criminal or otherwise, by protecting disclosures made during a marriage by one spouse to the other. This presented particular difficulties to the Crown when prosecuting one spouse for an offence involving the use of violence against the other spouse and/or a child of the marriage.

The Act removes what was previously termed "spousal immunity" or "spousal non-compellability". Instead, the Act provides that any person in any civil or criminal proceeding is an eligible witness, and may be compelled to give evidence. A Judge does not have the discretion to excuse spouses from giving evidence against each other.

One effect of this in the criminal context is that spouses who are victims of domestic violence may be compelled by the Crown to give evidence in the trial of the spouse who has been charged with an offence.

Where a spouse is compelled to give evidence against a spouse and that evidence either contradicts or retracts an earlier statement made by the witness spouse, there is provision for the Crown to challenge the credibility of the witness spouse by reference to the earlier statement. To avail itself of this remedy, the Crown would need to obtain a declaration that the witness spouse is a "hostile" witness. This is a mechanism retained by the Act that can assist the Crown or any other party when a witness spouse or any other witness deliberately gives false testimony under oath or affirmation.

Commencement Date

These provisions took effect on 1 August 2007.