Changes to the rules governing hearsay evidence, particularly from witnesses who are too afraid to testify and experts in mātauranga and tikanga, have been recommended by the Law Commission in its third and final review of the Evidence Act 2006.

Other recommendations include reforming the improperly obtained evidence rule, safeguarding the admission of prison informants’ evidence, extending medical privilege to a broader range of healthcare practitioners, clarifying legal advice privilege and resolving trial process uncertainties.

The Act is working well in practice, but some amendments are warranted, says Law Commission President Amokura Kawharu (Ngāti Whātua, Ngāpuhi).

Concerns about how the hearsay rule works, which may prevent a person’s statement from being used if they do not give evidence in court, have been long-standing, says Kawharu, the review’s lead commissioner. “Our recommendations respond to these longstanding concerns as well as emerging issues in evidence law, and will help to ensure the Act is fit-for-purpose in the future.”

Fear of retaliation

The Act permits the admission of hearsay statements only in limited circumstances. Yet prompted by recent case law, the commission looked at whether amendments were needed to allow the admission of hearsay statements where their maker is fearful of testifying.

It concluded that s 18 should include a new exception for makers of a hearsay statement who have a “reasonable fear of retaliation” if they give evidence, they do not intend to give evidence because of that fear and it is in the interests of justice to admit their hearsay statement. Fear of retaliation would be defined in s 16(1) as fearing a defendant or any other person would cause physical or other harm (including, for example, financial or social harm) to the maker of the statement or any other person.

Balancing fair trial rights, the interests of people making hearsay statements and the public’s interest in factfinders having all relevant evidence was better served by taking a “fear-based approach” to reforms, the commission said. “Preventing a defendant from benefiting from the fear they have created in another is a clear and principled reason to admit hearsay evidence.”

While some submitters were concerned about the difficulty of assessing fear subjectively, the commission recommended the fear must be reasonable, potentially best demonstrated by evidence, for example, of the nature of and reasons for their fear. Fear of retaliation was also more tangible than a general fear of giving evidence.

Mātauranga and tikanga

Mātauranga and tikanga existed within te ao Māori, while the Act’s rules of admissibility originated in the English common law, the commission said. The rules against hearsay and opinion evidence have long been seen as obstacles to the admission of mātauranga and tikanga evidence.

Reform was necessary to make the admission of mātauranga (including oral history) and tikanga normal, the commission concluded. An exception to the hearsay rule should be added to s 17, providing that the hearsay rule didn’t apply to a statement offered in evidence to prove the existence or content of mātauranga or tikanga.

The courts routinely engaged the expert evidence provisions of the Act to admit such evidence from pūkenga. While few cases have directly addressed its admissibility under the hearsay and opinion rules, the courts have generally been permissive and pragmatic, as well as conscious of admissibility difficulties, when encountering these issues.

The Rules Committee should also amend the code of conduct for expert witnesses to provide for mātauranga and tikanga as a unique category of expert evidence. An expert witness with lived experience of the relevant mātauranga and tikanga would be clarified as being qualified by that experience and a whakapapa or personal relationship with a party wouldn’t bar an expert witness from offering expert evidence.

Parties believed that having a person who was qualified through whakapapa, to give evidence on their behalf on tikanga and mātauranga, was important to them, the commission said. This type of evidence could be criticised, however, for not being “sufficiently independent”.

Third and final review

Among the other recommendations:

• improperly obtained evidence must be excluded by a judge unless having the evidence admitted outweighed the seriousness of the impropriety;
• prison informant evidence must be excluded by a judge unless the circumstances of the evidence demonstrated its reliability;
• references to “medical practitioner” should be replaced with “health practitioner”; and
• legal advice privilege should be extended to documents prepared but not communicated to obtain or provide legal advice.

The 314-page report concludes the commission’s third and final periodic review of the nearly 20-yearold statute. Parliament requires, under s 202, the commission to review the Act every five years, to ensure it remained fit for purpose.

With the repeal of s 202, however, the commission will no longer have to undertake its five-yearly reviews, although it’s not prevented from conducting future reviews. Handed the commission’s report, the government will consider its recommendations and decide whether to action them. ■