For nearly 30 years the Law Commission has been engaged in reforming the law of evidence in New Zealand.
In August 1989 the Minister of Justice asked the Commission to review all evidence law to make it as clear, simple and accessible as possible so that it facilitated the fair, just and speedy resolution of disputes. The Commission’s work over the next decade resulted in Parliament enacting the Evidence Act 2006. The statute largely codified the law of evidence. It also contained some changes that were considered relatively novel at the time. As a safeguard, Parliament required the Commission to review the new Act every five years.
The Commission completed the first five-yearly review of the Act in February 2013. The recommendations accepted by the Government were enacted by the Evidence Amendment Act 2016, which came into force on 8 January 2017.
In February 2017 the Minister of Justice, exercising the Minister’s powers under section 202 of the Act, triggered the second five-yearly review of the Act’s operation.
In March 2018 the Commission published its Issues Paper Second Review of the Evidence Act – Te Arotake Tuarua i te Evidence Act 2006: He Puka Kaupapa. The Issues Paper identified 59 questions. Public submissions were sought between 28 March and 15 June 2018. The Commission received 32 written submissions and met with a range of interested parties.
On 28 February 2019 the Commission presented the Minister with its Final Report The Second Review of the Evidence Act 2006 – Te Arotake Tuarua i te Evidence Act 2006. The Report makes 27 recommendations for reform. It includes an Evidence Amendment Bill, which reflects the Commission’s recommended amendments to the Act.
Project start: 20 February 2017
Project close: 13 March 2019
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Section 202 of the Evidence Act 2006 (the Act) requires the Minister of Justice to refer a review of the operation of the Act to the Law Commission by 28 February 2017. The Law Commission must report to the Minister of Justice within two years of the referral. This will be the second statutory review of the Act. The first review of the Act was a technical review that was required to be completed within one year of the referral. This second review will be more comprehensive than the first review, but will not be a first principles review.
The review will include (but not be limited to) the following matters:
1. As required by s 202 of the Act, the Law Commission will consider:
a) The operation of the provisions of the Act, taking into account the matters already considered in the first statutory review of the Act;
b) Whether those provisions should be retained or repealed; and
c) Whether any amendments are necessary or desirable.
2. The review will focus on the operation of the following provisions where, in several cases, Courts have indicated the provision requires particular attention, including:
a) Section 26 (conduct of experts): in light of Lisiate v R [2013] NZCA 129, (2013) 26 CRNZ 292.
b) Section 28 (unreliable statements): in light of R v Wichman [2015] NZSC 198.
c) Section 30 (improperly obtained evidence): in light of R v Wichman [2015] NZSC 198 and R v Kumar [2015] NZSC 124, [2016] 1 NZLR 204 (criminal proceedings) and Commissioner of Police v Marwood [2015] NZCA 608 and Marwood v Commissioner of Police [2016] NZSC 139 (civil proceedings).
d) Section 31 (prosecution may not rely on certain evidence offered by other parties): in light of Boskell v R [2014] NZCA 538.
e) Section 32 (fact-finder not to be invited to infer guilt from silence before trial): operational issues such as the relationship between s 32 and veracity provisions, and whether s 32 applies to judge alone trials.
f) Sections 37 and 38 (veracity): in light of Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.
g) Section 40 (propensity): in light of Mahomed v R [2011] NZSC 52 and Taniwha v R [2016] NZSC 121.
h) Sections 44 and 40(3)(b) (sexual experience): in light of B (SC12/2013) v R [2013] NZSC 151.
i) Section 49 (conviction as evidence in criminal proceedings): in light of Morton v R [2016] NZSC 51.
j) Section 122 (judicial directions about evidence that may be unreliable): in light of CT v R [2014] NZSC 155, [2015] 1 NZLR 465 and L v R [2015] NZSC 53, [2015] 1 NZLR 658.
3. It will revisit matters identified in the first statutory review that the Law Commission recommended be kept under review at the second statutory review:
a) Section 4 (definition of “witness”).
b) Sections 10 and 12 (the status of the common law).
c) Section 49 (conviction evidence in trials of co-defendants).
d) Sections 56 and 57 (termination of privileges).
e) Sections 31 and 90 (the relationship between these provisions: co-defendants seeking to offer a defendant’s statement in evidence may seek to “use” it when questioning a witness and s 90(1) may prevent them from doing so).
4. The review will consider the rules of evidence as they relate to sexual violence and family violence, including, in particular:
a) Section 35 (previous consistent statements).
b) Section 37 (veracity).
c) Section 40 (propensity).
d) Section 44 (sexual experience).
e) Section 122(2)(e) (judicial directions about evidence which may be unreliable: the alleged conduct of the defendant occurred more than 10 years previously).
f) Section 125(2)(b) (judicial directions about children’s evidence: suggestions as to tendencies of children to invent or distort).
g) Section 127 (delayed complaints or failure to complain in sexual cases).
5. The review will consider whether the Evidence Regulations 2007 are comprehensible and fit for purpose, or whether they require review in the future.
6. The review will consider s 202 (Law Commission periodic review of Act).
The Law Commission will consult with experts, interested parties, and the general public. The Commission will report to the Minister with its recommendations within two years of receiving the reference (February 2019).
Published: 20 February 2017
In the second review of the Act, like the previous one, the Commission asked whether the Evidence Act 2016 was operating effectively and as intended.
Under section 202 of the Act, the Commission was required to consider whether the Act’s provisions should be retained or repealed; and if they should be retained, whether amendments are “necessary or desirable”. The review was not intended to revisit the Act’s fundamental policy settings. However, the Commission was required, on this occasion, to extend its review to consider some policy matters arising in relation to evidence in sexual and family violence cases.
The Commission’s preliminary view was that the Act is working well. At the same time, however, the Commission identified a number of issues that warranted consideration and possible amendment.
The Issues Paper outlined these issues and possible options for reform. The paper looked at the rules governing conviction evidence, the right to silence, unreliable statements and improperly obtained evidence, identification evidence, the conduct of experts, privilege, veracity, co-defendants’ statements and several provisions governing the giving of evidence in sexual and family violence cases. In addition, the Commission asked whether the Evidence Regulations 2007 are comprehensible and fit for purpose.
The submissions the Law Commission received helped the Commission formulate its recommendations for reform of the Act. The Commission’s Final Report and recommendations were delivered to the Government in February 2019.
Submissions are now closed.
Published: 28 March 2018
The Law Commission has completed its second five-yearly review of the Evidence Act 2006, as required by section 202 of the Act. The review was referred to us by the Minister of Justice on 28 February 2017 and we formally reported to the Minister on 28 February 2019.
The purpose of the review was to consider the operation of the Act’s provisions and whether any provisions should be amended or repealed. The Commission was also asked, on this occasion, to review the rules of evidence as they relate to sexual and family violence cases.
The Commission concluded the Act is generally working well but some improvements are necessary and desirable. The Report makes 27 recommendations for reform. A number of recommendations are designed to improve the rules of evidence in sexual and family violence cases, while at the same time ensuring defendants’ rights to a fair trial are preserved. These recommendations include:
The Commission has also recommended a new provision to clarify that a court may regulate its procedures for giving evidence in a manner that recognises tikanga Māori. While some judges already take steps to recognise tikanga where appropriate, for example by allowing karakia to be given when evidence is of a sensitive nature, the Commission considers an express provision would encourage more consistent consideration of tikanga when evidence is given.
The Report also makes a number of recommendations to respond to practical problems with the operation of the Act. These include:
The Report includes an Evidence Amendment Bill, which reflects the Commission’s recommendations requiring legislative amendment.
*The Commission previously made similar recommendations in relation to sexual violence complainants in its report The Justice Response to Victims of Sexual Violence: Criminal Trials (NZLC R136, 2015).