Evidence Report 55 – Volume 1

Reform of the Law
The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and 
accessible, and that reflects the heritage and aspirations of the 
peoples of New Zealand.
The Commissioners are:

The Honourable Justice Baragwanath – President
Judge Margaret Lee
DF Dugdale
Denese Henare onzm
Timothy Brewer ed
Paul Heath qc

The office of the Law Commission is at 89 The Terrace, Wellington
Postal address: PO Box 2590, Wellington 6001, New Zealand
Document Exchange Number: sp 23534, Wellington
Telephone: (04) 473–3453, Facsimile: (04) 471–0959
E-mail: com@lawcom.govt.nz
Internet: www.lawcom.govt.nz
Report/Law Commission, Wellington, 1999
issn 0113–2334  isbn 1–877187–34–8 (Volume 1)
isbn Full Evidence set 1–877187–36–4
This report may be cited as: nzlc r55 – Volume 1
24 August 1999
Dear Minister
I am pleased to submit to you Report 55 of the Law Commission, Evidence Law Reform, in response to terms of reference given to the Law Commission by your predecessor, the Rt. Hon Sir Geoffrey Palmer, in August 1989.
The Report is in two volumes.  Volume 1 contains a discussion of the problems in the current law and the Commission’s recommendations for reform.  Volume II contains the Evidence Code and Commentary.  The Code sets out the Commission’s recommendations in the form of a draft statute.  The Commentary explains how the Code provisions are intended to operate and is an integral part of the Code.  The Report is accompanied by a miscellaneous paper which gathers together much of the current research on human memory.  This research is the basis for a number of provisions in the Code.  
The Report is the culmination of a decade of research and consultation with special interest groups and individuals.   The process is described in the preface.

Yours sincerely

The Hon Justice Baragwanath
President

The Hon Tony Ryall
Minister of Justice
Parliament Buildings
Wellington
Evidence Report 55 – Volume 1

Preface
The law of evidence is the set of rules by which judges 
	determine what testimony and exhibits may be accepted and how they may be used.  It is central to the day-to-day operation of New Zealand’s administration of justice; it affects every piece of evidence given by every witness in every court.  Its rules must be clear, principled and readily accessible.
Yet in its present form the law of evidence is a patchwork of disparate elements that have never been co-ordinated and whose effect is frequently disputed by experts.  Problems resulting from ancient rules of the judge-made common law, themselves often neither precise nor readily accessible, have been met by ad hoc statutory reforms which have in turn presented difficulties of construction and of scope.  An example is the Evidence Amendment Act (No 2) 1980, which responded to an over-narrow expression of the law of hearsay in Myers v Director of Public Prosecutions [1965] AC 1001.
The pressing need for reform of the entire law of evidence is illustrated by remarks made by Turner J about two of its facets.  In Jorgensen v News Media Limited [1969] NZLR 961, 990–1, he referred to Myers and to another decision, both of which declined to treat a criminal conviction as evidence of guilt in a later proceeding:
 . . . the law of evidence is Judge-made law, directed to the control of the processes by which Judges daily endeavour to do justice; . . . if it requires modification, that modification is particularly a matter with which the Judges should be entrusted.  In this country there were many who when Myers v Director of Public Prosecutions was decided found it in their hearts to regret that the views of the majority had prevailed, and that the great days of judicial legislation in the field of evidence seemed to have come to an end.  I was one of those who . . . were less than content with that decision, and for these reasons am of opinion that neither the long time during which the Courts have consistently rejected convictions as evidence of guilt, nor any reluctance to modify existing rules in a proper case should deter this Court from taking what I conceive to be the proper course, viz the rejection of Hollington v Hewthorn as a decision to govern the admissibility of such evidence in the future of this country. . . . 
It became apparent that the law is an ass.  The lawyers became impatient; the laymen wondered that such things could be.  Lord Denning MR and his fellow Lords Justices in the Court of Appeal uttered strong words.  Lord Pearson’s Committee reported.  In England the law was changed.  It is apparent, in a word, that if convenience once seemed to favour exclusion of a certificate of conviction as proof of guilt, that same consideration is now seen to work powerfully in the opposite direction.  For these reasons I have concluded, with the President, that there is now no consideration of convenience which should deter the Court from doing what I have thought it right in principle that it should now do.
But judges can deal only with cases that come before them; they do not have the opportunity to carry out the thorough overhaul of the law of evidence that was so badly required.
Accordingly, in August 1989, the then Minister of Justice (Sir Geoffrey Palmer) gave the Law Commission the evidence reference, as follows:
Purpose:	To make the law of evidence as clear, simple and accessible as is practicable, and to facilitate the fair, just and speedy judicial resolution of disputes.
With this purpose in mind the Law Commission is asked to examine the statutory and common law governing evidence in proceedings before courts and tribunals and make recommendations for its reform with a view to codification.
The evidence reference needs to be read together with the criminal procedure reference, which the Minister gave the Law Commission at the same time:
To devise a system of criminal procedure for New Zealand that will ensure the fair trial of persons accused of offences, protect the rights and freedoms of all persons suspected or accused of offences, and provide effective and efficient procedures for the investigation and prosecution of offences and the hearing of criminal cases.
In April 1991 the Law Commission published the first of a series of discussion papers on aspects of evidence law.  They dealt with principles for reform, codification and hearsay.  In the first of these papers, the Law Commission reached the provisional conclusion that codification was the only way to achieve truly comprehensive reform.  It has since been confirmed in that view.  Between 1991 and 1997 the Law Commission published a number of further discussion papers on major aspects of evidence law: expert evidence and opinion evidence, privilege, documentary evidence, character and credibility, the evidence of children and other vulnerable witnesses.  In addition, the Commission published discussion papers on the privilege against self-incrimination and police questioning as part of the criminal procedure reference, with the intention that the proposals would be incorporated in the Evidence Code.  From 1996 to 1998, a number of unpublished research papers were written and disseminated for discussion.  The discussion papers drew a wide response from community groups, academics, members of the profession and the judiciary.  This participation greatly influenced the final content of the Evidence Code.
The Law Commission work on witness anonymity was nearing completion when, on 15 August 1997, the Court of Appeal delivered its decision in R v Hines [1997] 3 NZLR 529.  When the Government declared its intention to address the issues raised in that judgment, the Law Commission decided it could best assist the process by expediting publication of a discussion paper on the topic and calling for submissions: the result was Witness Anonymity (NZLC PP29, 1997).  It published Evidence Law: Witness Anonymity (NZLC R42, 1997), a report with final recommendations in time for the select committee that was considering a new Bill on the matter.  The bulk of those recommendations now appear as ss 13B to 13J of the Evidence Act 1908 (inserted by the Evidence (Witness Anonymity) Amendment Act 1997).  The Law Commission recommends that when the Code is promulgated, those provisions, together with s 13A of the Evidence Act 1908 (which provides for anonymity for undercover Police officers), should be reproduced in Part 5 of the Code.
In responding to the evidence reference, the Law Commission undertook considerable work reviewing the application of evidence law to the work of tribunals.  The Commission considered a number of options, taking into account the fact that tribunals serve a wide variety of purposes, with a corresponding range in the formality of their proceedings.  All may choose to apply the rules of evidence; almost none are currently bound to do so.  The Commission considers that it would be undesirable to reduce the flexibility tribunals now enjoy.  It therefore makes no recommendations in relation to tribunals, preferring to leave the choice of whether to be bound by any or all of the provisions of the Evidence Code to each tribunal or the agency administering its constituting statute.
The Law Commission also consulted a number of judges, lawyers and government officials on how changes to the Evidence Code should be made.  We were greatly assisted in this process by Mr Chris Finlayson who provided us with two papers discussing the principles and options.  At one end of the range is the usual process of legislative amendment through Parliament, with its attendant delays; at the other end is amendment by regulation or by a rule-making body akin to the Rules Committee (which has power to amend the High Court Rules).  Each option had its advantages but none was without problems.  After a systematic review of the Code provisions, the Law Commission concluded that none of them can be classified as purely procedural – not involving any matter of substance.  It decided that changes to the Code should proceed through the usual legislative channels.  
We have listed our contributors, consultants, and commentators in Appendix A, where we also express our thanks.  But the Law Commission wishes to acknowledge in particular the outstanding leadership of the Hon Sir John Wallace QC who, as the Commissioner in charge of the evidence project until May 1996, established its shape and direction.  The Commission and the evidence law reform project benefited enormously from his knowledge, experience, intellect and vision.

1. Introduction
The function of the law of evidence
1	Under an adversarial system, parties present evidence
	to a judge (if the judge is sitting alone) or jury (if the judge is sitting with a jury) who make a decision after applying the relevant law to the facts. The fact-finder must first decide what the facts are by assessing the evidence offered by the parties. According to one scholarly evidence text, “evidence of a fact is information that tends to prove it”.1  The rules of evidence govern who may say what and how in court proceedings. They should assist the fact-finder in the task of assessing the evidence. Section 6 of the Code refers to this function or purpose of evidence law as “facilitating the just determination of proceedings” by
(a)	promoting the rational ascertainment of facts; and
(b)	promoting fairness to parties and witnesses; and
(c)	protecting rights of confidentiality and other important public interests; and
(d)	avoiding unjustifiable expense and delay.
2	The law of evidence, in “facilitating the just determination of proceedings”, may operate to prevent evidence being presented to the fact-finder, or restrict how the fact-finder may use a particular item of evidence. In doing this, the law of evidence reflects certain policy positions, including existing rules that protect the rights and interests of defendants in criminal proceedings. These rights, recognised in the New Zealand Bill of Rights Act 1990, affect the operation of the law of evidence and the Law Commission’s proposals for reform.
The need for reform
3	The rules of evidence are mainly facilitative, because they are aimed at assisting the application of substantive law. This traditional view of the nature of the law of evidence has contributed to the way it has developed. Evidence law is largely judge-made, with occasional amendments by legislation to meet specific concerns.
4	Much of evidence law is to be found in reported cases (ie, judges’ decisions); they are supplemented by statutory provisions, the majority of which are not found in the Evidence Act 1908. As a consequence, the law of evidence is difficult to access, at times uncertain and lacking consistency. The law of evidence frequently fails to fulfil its function of helping the fact-finder make factual determinations by, for example, denying the fact-finder access to relevant and reliable evidence; instead, it results in unnecessary complexity, uncertainty, cost and delay.
5	The Law Commission’s first consideration of the rule against hearsay in 1989 (NZLC PP10) led to its view that systematic reform and codification (NZLC PP14, 1991) was desirable. Codification provided the opportunity for rationalisation and clarification of the law.2 
The aims and result of the reform process
6	The evidence reference, given to the Law Commission by the Minister of Justice in 1989, succinctly states the main aim of the reform project:
To make the law of evidence as clear, simple and accessible as practicable, and to facilitate the fair, just and speedy judicial resolution of disputes.
The evidence reference needs to be read together with the criminal procedure reference, the purpose of which is
[t]o devise a system of criminal procedure for New Zealand that will ensure the fair trial of persons accused of offences, protect the rights and freedoms of all persons suspected or accused of offences, and provide effective and efficient procedures for the investigation and prosecution of offences and the hearing of criminal cases.
7	The Law Commission has at all times been influenced by its desire for clarity, simplicity and accessibility. The Evidence Code, a comprehensive scheme that addresses all aspects of evidence law, is a clear and concise draft statute, which together with its Commentary is one of three publications produced by the Commission on completing the evidence reform project. The other two publications are this volume and a miscellaneous paper on memory.
The purpose of the Code
8	The Evidence Code is intended to replace most of the existing common law and statutory provisions on the admissibility and use of evidence in court proceedings. The significant reform proposed by the Code will not achieve its purpose unless it is accompanied by a change in approach by practitioners and the judiciary. The Code’s purpose and principles are fundamental to the operation of the Code, and judges should look to the Code’s purpose for guidance on interpreting or applying the Code, rather than to the common law. The emphasis the Code places on facilitating the admission of relevant and reliable evidence cannot be overstated. A significant consequence of this emphasis is that the Code contains very few rules that limit the use of particular kinds or items of evidence. The Code relies on the common sense of the triers of fact and the wisdom of the judiciary who will give them guidance on how to approach the evidence in a given case. The Code does not therefore prohibit the admission of relevant evidence except when such exclusion is warranted on policy grounds; nor does the Code limit the use of admissible evidence, except where not to do so would be contrary to the purpose of the Code.
9	The Law Commission considers, however, that the Code should be subject to other Acts. Existing statutory provisions need to be reassessed by their administering agencies in order to determine whether the relevant Code provisions should replace them. For example, there are a large number of provisions that facilitate the admission of hearsay evidence. In general, the Code’s hearsay rule could replace most of these provisions if it is thought desirable. The Commission is of the view that the administering agencies are best placed to make such decisions and accordingly s 5 of the Code provides that existing statutory rules will prevail.
10	Enacting the Evidence Code will result in the repeal of most of the Evidence Act 1908 (and its amendments). Schedules 1 and 2 of the Code deal with transitional provisions and consequential repeals. The Report includes a Comparative Table that sets out the particular Code provisions against the statutory rules the Code provisions replace. This forms part of Appendix B which also outlines the current sections that will be repealed without replacement.
The purpose of the Commentary
11	The Commentary discusses the way each Code provision is intended to apply, giving examples. The Commission has provided the Commentary as an authoritative guide to interpreting the Code and as such it should be published alongside the Code provisions, similar to the manner of the Federal Rules of Evidence.
12	The Commentary states whether a Code provision re-enacts an existing section or common law rule, or whether it has reformed the law and in what way. It also records whether the Code introduces a new rule.
The purpose of the Report
13	The Report outlines the reasons for the Law Commission’s policy decisions. It discusses the problems in the current law that the reform measures are intended to remedy, the concerns raised by commentators, and how the Code addresses those concerns. In a number of important areas the contributions of commentators have resulted in significant revision of proposed rules.
14	The submissions referred to in the Report have been the result of a substantial consultation process over ten years. This process, and the participants in it, are set out in Appendix A of the Report.
15	The structure of the Report follows the structure of the Code. Chapter 2 of the Report corresponds to Part 2 of the Code. Chapter 3 relates to Part 3, Subpart 1 of the Code, and so on. The Report is therefore intended to be read with the Code and Commentary and does not repeat the substance of the Code rules, except where it is necessary for the sake of clarity.
2. Purpose
16	The Code adopts as its paramount purpose “the just
	determination of proceedings”. The Law Commission considers it desirable to focus the Code and the attention of those who will use it on the reason people go to court in the first place: to seek a just resolution of their disputes. The goal of the “just determination of proceedings” is to be achieved through four policy objectives. The goal and objectives are set out in s 6, which is intended to serve as a guide to interpreting the Code provisions.
(a)	Promoting the rational ascertainment of facts
17	A primary objective of the trial is the rational ascertainment of facts. The Law Commission considers that it is desirable to enhance rationality in the process of fact-finding at trial – ensuring that relevant and useful material can be brought before the court, filtering out irrelevant material, making use of logical methods of reasoning and avoiding obvious prejudices. The law of evidence should assist in this.
(b)	Promoting fairness to parties and witnesses
18	The public interest in promoting fairness requires certain rights to be protected by the law of evidence. Already acknowledged in the present law, and reflected in the New Zealand Bill of Rights Act 1990, are the right of silence and the privilege against self-incrimination, the presumption of innocence, and the right to confront one’s accusers. Such rights inevitably influence the law of evidence in criminal cases. To a lesser degree there may be analogous rights in civil proceedings – for instance, the right not to be subjected to an adverse judgment unless a case has been made out, and the right to call and cross-examine witnesses.
(c)	Protecting rights of confidentiality and other important public interests
19	There are other objectives besides truth-finding and fairness underlying the adjudicative process. Even within the rationalist tradition, it is accepted that the goal of truth-finding must at times give way to other important public interests. An example is the whole body of evidence law known as privilege. These rules reflect important social values and are a legitimate constraint on the truth-finding function of the trial.
(d)	Avoiding unjustifiable expense and delay
20	Efficiency and finality are important in the trial process and our evidence reference specifically refers to them. The Law Commission does not see efficiency, finality, and the avoidance of delay as subsidiary considerations. They are important policy objectives and must play a substantive role in evidence law. In particular, efficiency requires that unnecessary complications in the exclusionary rules of evidence be minimised to save the time and effort involved in arguing about them. Considerations of efficiency and finality are also grounds for excluding evidence if its probative value cannot justify the time and effort involved in obtaining it, or if the evidence might complicate the proceedings unnecessarily.
Balancing competing interests
21	Some commentators pointed out that the Code provides no guidance on the degree of weight to be attributed to a particular objective. For example, one practitioner asked, “[t]o what extent should economic concerns . . . be subordinated to the truth-seeking aims?” The Law Commission remains of the view that the primary goal of the Code is to facilitate “the just determination of [the particular] proceedings”. The weight or relevance of any particular factor will vary with the context, and it is a function of the judge to accord the importance necessary to reach a just result.
3. Principles and matters of general application
introduction
22	The general principles articulated in Subpart 2 of Part 1 of
	the Code form the basis of the admissibility rules and so are of great significance to the operation of the Code. The provisions should be considered in every admissibility decision. 
general principles
Relevannce
23	The Code’s principles derive from the general purpose set out in s 6. Since a primary function of evidence law is to promote the rational ascertainment of facts, a basic tenet of an evidence code must be that all logically relevant evidence is admissible unless there is some policy reason to exclude it. Indeed, all the modern evidence codes and draft codes begin with a rule of relevance expressed in similar terms. The Code’s definition of relevance is found in s 7(3).
24	With very few exceptions, the Code does not confine the uses to which evidence may be put. In most cases, evidence is admissible for any purpose for which it is relevant. This general approach allows the fact-finder to take into account all admissible evidence (with very few exceptions). This approach is consistent with the purpose of the Code. 

General exclusion
25	All the modern evidence codes impose some limits on the general principle that logically relevant evidence is admissible, expressed in terms of unfair prejudice, misleading or confusing effect and time-wasting. The formulation in r 403 of the Federal Rules of Evidence is one example:3 
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
26	Such provisions articulate the underlying policy grounds for excluding logically relevant evidence at common law, often subsumed in the broad concept of “sufficient relevance”. The Law Commission, like other law reform bodies, has preferred to state the specific policy considerations explicitly.
27	Section 8 of the Code therefore expresses substantive principles about the circumstances in which evidence should be excluded. The use of the word “must” makes it clear that if evidence offends against the principles there is no residual discretion to refuse to exclude it. 
28	Section 8 is contrary to a line of authority that culminated in the Privy Council’s decision in Lobban v R [1995] 1 WLR 877. That case states that a defendant’s right to present all the evidence relevant to his or her defence is not subject to discretionary control. 
29	Under s 8 a defendant’s right to present evidence relevant to his or her defence is not absolute but it will be a factor for the judge to consider when balancing probative value against unfairly prejudicial effect on the outcome of the particular proceeding. The Law Commission considers that s 8 is appropriately drafted and will not operate to defeat a defendant’s right to present an effective defence.4 
30	Section 8 also requires consideration of the time taken to present relevant evidence. Commentators agreed that considering whether the admission of evidence will needlessly prolong the proceedings may be important when deciding on the admissibility of previous consistent statements and follows the recent move toward more rigorous case management.
other matters of general application
Admission by consent
31	In line with the objective of avoiding unjustifiable expense and delay, the Commission recommends codifying the convenient practice of admitting by consent evidence that is not otherwise admissible. The content of s 369 Crimes Act 1961 has also been brought into s 9, and has been extended to allow the prosecution as well as the defence to admit facts so as to dispense with proof.
Code to be liberally construed
32	In its discussion paper, Evidence Law: Codification (NZLC PP14, 1989), the Law Commission expressed the view that a provision such as s 10 was unnecessary (para 29). However, the Commission’s consultations indicated that a lifetime of training has ingrained into both bench and bar an almost automatic reaction of referring to case law to resolve evidential issues. Accordingly, the Law Commission views s 10 as a necessary reminder that the Code should be construed by reference to its purpose and principles, rather than by relying on the common law. 
Inherent powers not affected
33	To avoid doubt, the Law Commission considers it desirable to clarify the relationship between the provisions of the Code and the courts’ inherent jurisdiction or powers. The word “powers” is used for three reasons. First, the two terms probably have the same meaning: “‘Jurisdiction’ means power or sources of powers”.5  Second, the nature and scope of a superior court’s inherent jurisdiction has never been clearly defined. So far as an evidence code is concerned, it is the court’s power to regulate and prevent abuse of its procedures that is relevant. Third, “inherent jurisdiction” has traditionally been used in connection with superior courts. Since it is now recognised that inferior courts also have inherent powers to regulate and prevent abuse of their procedures, the Commission prefers to use one term that will be understood clearly to apply to all courts.
34	It is impossible to foresee all the ways the courts will need to use their powers to regulate procedure and prevent abuse of process. Any attempt to set out those powers will merely create undesirable fetters. At the same time, an evidence code will become meaningless and ineffectual if the courts use their inherent powers in ways that contradict the Code’s express provisions. The Law Commission therefore recommends including s 11, which preserves a court’s freedom of action so long as it is not exercised contrary to the Code’s express provisions, and requires a court to exercise its inherent powers in accordance with the Code’s purpose and principles.
Evidential matters not provided for
35	One of the major features of a code is that it supersedes existing law and makes a fresh start. References to earlier judicial decisions can obstruct that objective.
36	In the Law Commission’s view, any ambiguity in the meaning of a provision of the Code must be resolved by reference to the purpose and principles of the Code rather than to the pre-existing common law. That is not to say that previous cases will never be of value. Though the object of an evidence code is substantially to reform the law, decisions under the Code will, where appropriate, embody the wisdom and experience of the common law. There will, therefore, be a significant number of instances where the Code’s purpose and principles will be the same as those underlying the common law. In those instances reference to earlier cases may well be helpful in elucidating the application of the principles contained in the Code.
37	A code will also not necessarily deal with every specific point and it is sometimes suggested that “gaps” in a code will be a source of difficulty. Some developments, especially of a technological nature, may not be contemplated or fully evolved when the code is being drafted. Indeed, in the context of an ordinary statute, such developments spring to mind as the typical “unprovided-for case”. Alternatively, a gap may be said to arise because the topic by its nature is outside the scope of the code.
38	The Law Commission considers that the general Code principles and purposes will be applicable and should govern in all cases within the scope of the Code. In any unprovided-for case, therefore, the courts should look to the purpose and principles of the Code to resolve the matter (s 12). 
Establishment of relevance of document
39	Section 13 of the Code provides that when a judge is considering the relevance (and hence admissibility) of a document, the judge may draw reasonable inferences about its authenticity and identity from the document itself.
40	In chapter 2 of Documentary Evidence (NZLC PP22, 1994) the Commission discussed authenticity as an aspect of relevance and a requirement of admissibility. The Law Commission expressed the view that the common law rule requiring the authenticity of a document to be established by evidence extrinsic to the document no longer served any useful purpose. Commentators supported this view. Under the Code, if a document contains information that demonstrates on its face the authenticity aspects of its relevance (such as a signature), that should be sufficient to allow the document to be admitted. Admitting the document does not preclude a dispute over authenticity during the trial. It will then be for the fact-finder to determine what weight (if any) should be given to the document.
Provisional admission of evidence
41	Questions of admissibility that arise in the course of a hearing are often dealt with pragmatically, by admitting the evidence provisionally, subject to other evidence later being adduced to establish admissibility.6  If such other evidence is not forthcoming, or proves to be unsatisfactory, the evidence is excluded from consideration. Such a procedure is particularly convenient if the relevance of a particular item of evidence is not immediately obvious. For example, the contents of a document may be relevant to the issues in the case, but only if a particular person wrote it; and it may be impossible to identify the writer at the same time as the document is introduced. The judge must therefore have the power to admit the document subject to later evidence demonstrating its relevance (s 14). 
Admissibility of evidence given to establish admissibility
42	The Law Commission recommends a rule that reforms and extends the current law on the use that may be made of evidence offered in a voir dire.
43	Under the current law, a defendant may be cross-examined on his or her testimony in a voir dire if that testimony is inconsistent with his or her testimony in the trial. However, according to Wong Kam-Ming v R [1980] AC 247 (which is generally, although not universally, accepted as representing the law in New Zealand),7  this is so only if the defendant’s statement that is the subject of the voir dire is ruled admissible. A defendant cannot be cross-examined on any inconsistencies between the voir dire testimony and the trial testimony if the statement is ruled inadmissible. In the Commission’s view, the twin aims of the current law – to bring inconsistencies in the defendant’s evidence to the fact-finder’s notice, and to prevent the defendant from committing perjury with impunity – do not justify the distinction drawn in Wong Kam-Ming. 
44	The Law Commission considers that all evidence offered to establish the facts necessary for deciding the admissibility of other evidence in a proceeding should be treated in the same way. Section 15 sets out the general rule that evidence of a witness offered at any time for the purpose of deciding whether evidence should be admitted, is not admissible as evidence at the trial. However, such evidence can be admitted should that person’s testimony in the proceeding be inconsistent with the evidence offered earlier.
4. Hearsay evidence
Introduction
45	Over the last ten years, most common law jurisdictions
	have proposed reforming the rule against hearsay. The reasons for such a uniform call for amendment are succinctly stated by Professor R D Friedman:
The [rule against hearsay] excludes much evidence that is helpful to the truth determining process; it fails to identify that hearsay which should be excluded to protect fundamental rights of a criminal defendant; it creates unnecessary costs, as parties must arrange for the testimony of witnesses in situations where secondary evidence would suffice; it confuses judges, lawyers, and students; and it creates contempt for evidentiary law, because it fails to reflect values for which most people have respect, and so often it is ignored in practice . . . [H]earsay law, where it exists, should be radically transformed and liberalised . . .8 
46	The Law Commission has published two discussion papers on the rule against hearsay. The first, published in 1989, posed options for reform. The second, published in 1991, proposed a complete statutory scheme and sought comment from the profession.
the need for reform
47	In the Law Commission’s second discussion paper on the rule against hearsay, Evidence Law: Hearsay (NZLC PP15, 1991), the Commission argued that the rule was in need of fundamental reform. It considered that the rule should operate to exclude evidence only if there are sound policy reasons for so doing. This view received strong support from both the profession and interested community groups.
48	Consistent with the aims of reforming the law so as to increase the admissibility of relevant and reliable evidence, the Law Commission recommends rules that will provide a principled and much simplified approach to hearsay evidence.
the code provisions
49	The Code rule is based on the dual safeguards of necessity (an inquiry into the unavailability of the maker of the statement) and reliability (an inquiry into the circumstances in which the hearsay statement was made), which have developed at common law in a number of jurisdictions including New Zealand.9  These two admissibility inquiries are also favoured by academic commentators in most jurisdictions.10 
Hearsay defined
50	The Code’s definition of hearsay (s 4) is important as it operates to reform the law in a number of ways. It catches only statements made by non-witnesses. A witness is defined in the Code as a person who “gives evidence” (which may be orally, in an alternative way or in a written form; for example, under the High Court Rules) and is able to be cross-examined on this evidence (s 4). Previous statements of witnesses are therefore not hearsay under the Code (their admissibility is governed by s 37). This approach, which places considerable importance on the possibility of cross-examination, reflects the Law Commission’s view that the lack of opportunity to test a witness’s evidence in cross-examination is the most compelling reason for limiting the admissibility of hearsay evidence.
51	What is treated as hearsay under the Code is determined by the definition of “statement” (s 4). The Code’s definition excludes what are known as “implied” or “unintended” assertions from the operation of the hearsay rule. In the view of the Commission, it should be left to the fact-finder to draw inferences from evidence of reported conduct. There is therefore no specific rule in the Code dealing with implied assertions. Submissions received by the Law Commission strongly supported this approach, which is also consistent with overseas developments since the Commission’s discussion paper (NZLC PP15, 1991) was published.11  Under the Code, therefore, implied assertions may be admissible without a reliability or necessity inquiry, although such evidence may still be excluded under s 8 on the grounds of unfairly prejudicial effect.
The reliability inquiry
52	The Law Commission’s admissibility rules for hearsay evidence in both civil and criminal proceedings are based first on an assessment of reliability. Current jurisprudence confirms the appropriateness of a reliability inquiry for determining admissibility. The following statement of Chief Justice Lamer in R v Smith (1992) 15 CR (4th) 133 (SCC) is consistent with the Law Commission’s approach to hearsay evidence:
[H]earsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability . . . and subject to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might extend to the accused. Properly cautioned by the trial judge, juries are perfectly capable of determining what weight ought to be attached to such evidence, and of drawing reasonable inferences therefrom. (152)
53	In the Code, reliability is assessed in terms of an inquiry into the “circumstances relating to the statement” (s 16(1)). In both civil and criminal proceedings these circumstances must give rise to a reasonable assurance of reliability before hearsay can be admitted, unless it is admitted by the consent of both parties under s 9. 
54	The codification of a reliability test was very well supported in the submissions. One commentator, however, suggested adding consideration of the “importance of the issue to which the statement is relevant”. The Law Commission is of the view that such an inquiry is inherent in considering the circumstances relating to the statement, more particularly its nature and contents – s 16(1)(a). The Commission saw a number of difficulties with the suggestion. First, the amendment may require the judge to consider the relative importance of the evidence pre-trial before he or she has heard all the evidence in the case. Further, the relative importance of evidence will often depend on assessing the truthfulness (credibility) of witnesses, which cannot be properly determined pre‑trial. Alternatively, it may require the judge to hear the whole of the evidence in order to make a pre‑trial ruling.12  Finally, how would an “importance of the evidence” factor be used? Would it support admission or exclusion? A different approach would also need to be adopted for a crucial item of evidence, depending on whether it forms part of the prosecution or the defence case. 
55	Another commentator suggested that the matters referred to in ss 16, 17 and 18 of the Evidence Amendment Act (No 2) 1980 about the admission of hearsay be included in the Evidence Code. These sections require consideration of the circumstances in which the statement was made, the time when the statement was made, and the extent to which the maker may have a motive to misrepresent any fact or opinion about the subject matter of the statement. The Law Commission is of the view that these considerations are either expressly included or are implicit in the Code’s treatment of hearsay (see in particular s 16(1)). Section 18 of the Evidence Amendment Act (No 2) 1980 has also been enacted more broadly in the Code as s 8 (the general exclusion) which may be used to exclude otherwise admissible hearsay evidence.
The necessity or “unavailability” inquiry
56	The second admissibility inquiry under the Code reflects the approach under the common law and in the Evidence Amendment Act (No 2) 1980. Both recognise exceptions to the traditional exclusion of hearsay based on necessity which provide for various circumstances in which a statement is admitted because the statement maker is not “available” to give evidence as a witness. Under the Code, reliable hearsay evidence will also be admitted if the maker of the statement is “unavailable” as a witness. 
57	The Code’s definition of “unavailability” is based on the new definition of “witness” (s 4) – someone who can be cross-examined in a proceeding. Those who are able to give evidence and be cross-examined, albeit by way of video-link, will not be considered “unavailable”. Physical attendance will however normally be required from people inside New Zealand and in good health unless they cannot be found or are not compellable.13 
58	Commentators pointed out that in some jurisdictions witnesses may be considered to be “unavailable” when they are either too frightened or traumatised to give evidence or when they refuse to give evidence although physically present in court. The Law Commission is of the view that “trauma” is sufficiently covered by the other grounds (ie, unfitness to attend), and that a further appropriate response is to protect frightened witnesses by allowing anonymity or the use of screens or closed-circuit television.14  Such approaches will supplement the witness protection scheme offered by the Police.
59	The Law Commission originally considered that a witness who refuses to give evidence should be considered unavailable for the purpose of the hearsay rule. However, the practitioners who attended the consultative seminar series15  were uneasy about admitting the hearsay statements of someone physically present in court who simply refuses to testify and be subjected to cross-examination. The Commission accepts that such an extension to the grounds of unavailability would tend to encourage witnesses to opt out of testifying for any reason at all, which is clearly undesirable.
The hearsay rule
60	Sections 18 and 19 provide that in both civil and criminal proceedings hearsay evidence should be admitted if the hearsay is sufficiently reliable and the maker of the statement is unavailable as a witness. A number of commentators were of the view that in addition to the primary requirement of reliability, conditions for admitting the hearsay statement of an available witness should be narrowly and specifically prescribed. In both civil and criminal proceedings the Commission therefore recommends an exception to the requirement of unavailability – reliable hearsay may still be admitted if requiring the maker of the statement to be called would cause undue expense and delay. 
61	One commentator expressed concern that hearsay evidence that may currently be admissible under the “co-conspirator’s rule” would probably be inadmissible under the Code in one particular situation. Under the Code, an “associated defendant”16  who has pleaded guilty and been sentenced will be compellable for the prosecution at the defendant’s trial (s 75). The compellable associated defendant may, however, refuse to take the oath or give evidence. Such a person’s pre-trial statement will not be admissible as the statement of a testifying witness, nor will the statement be admissible as hearsay because the witness is not “unavailable”. Under the Code, the “co-conspirator’s rule” will no longer be needed as an exception to the rule that a defendant’s out-of-court statement is inadmissible against a co-defendant’s (because this will no longer be the case – see chapter 6). However, a wider issue remains: to allow a person who is available and compellable as a witness to influence the outcome of a case simply by refusing to take the oath or to give evidence can be contrary to the interests of justice. The issue involves fundamental and competing public interests. The Law Commission decided that it should not further extend the circumstances in which a defendant can be implicated by evidence they have no opportunity to challenge in cross-examination. This is consistent with the presumption of innocence.
62	In criminal cases, as in civil, hearsay that is otherwise inadmissible may be admitted with the consent of the parties under s 9.
63	One commentator argued that the hearsay rule should be abolished for both civil and criminal cases, subject to a general discretion to exclude certain evidence depending upon its evidential value and reliability.17  He challenged the grounds for retaining hearsay in criminal proceedings, arguing that there is no empirical proof of lack of jury ability to assess hearsay evidence and juries are trusted to make other important decisions. He was of the view that the essential distinction between civil and criminal proceedings is the need to protect the rights of the defendant, including the “right of confrontation” (ability to cross-examine).
64	A clear majority of commentators, however, strongly supported the Commission’s proposals to liberalise the hearsay rule, rather than abolish it. Judges in particular considered that hearsay evidence can be of concern in jury trials. The Law Commission agrees and is of the view that there is still a need for judicial control over the admission of hearsay, especially in criminal proceedings.
The notice requirement
65	The Code provides that parties wishing to offer hearsay evidence in a criminal proceeding must give prior notice, and that any party wishing to object to such evidence being offered must also give prior notice (s 20). The notice requirements attracted criticism from some commentators, although the majority supported the introduction of such a safeguard. The main difficulties identified were:
•	There is an inherent conflict between a defendant’s right to silence and a requirement that the defence be made to show its hand before the trial.
•	There is a limited understanding of the hearsay rule now. A change of rules plus a notice provision could lead to a situation where many counsel would be unable to assess the extent of the obligation cast upon them to notify.
•	Difficulties will arise when it is discovered that the obligation to notify has not been observed. It was submitted that, in practice, it would be very difficult to obtain an adjournment in criminal trials to permit a response – especially from the prosecution – to the introduction of the proposed hearsay.
66	The Law Commission acknowledges that there is weight in all these arguments. After considering the options (including a proposal to require only the prosecution to give notice) the Commission remains of the view that a notice requirement is desirable in criminal cases for the following reasons:
•	Pre-trial disclosure by the defence already occurs (for example, the obligation to serve notice of alibi); the defence will need to show its hand before trial only if it wants to take advantage of the liberalised regime for admitting hearsay.
•	The proposed definition of hearsay will make it easier for counsel to recognise hearsay.
•	The requirement of prior notice has been enacted as an important safeguard into comparable legislation in a number of common law jurisdictions.18  Sufficient flexibility is built in, by way of a judicial discretion to dispense with notice, to ensure that the requirement does not lead to injustice. For example, a defendant’s right to present his or her defence need not be prejudiced by being unable to give notice when new evidence is discovered.
67	The Law Commission expects that all matters relating to the notice and counter-notice provisions (for example, a decision on a witness’s availability) will be dealt with pre‑trial whenever possible and, if not, in the absence of the jury.
68	Some commentators also expressed a preference for a notice requirement in civil as well as in criminal proceedings. After evaluating the experience in other jurisdictions, the Commission remains of the view that an informal notice procedure will evolve as part of the discovery process in civil proceedings and there is no need for legislative intervention. It will be in the parties’ best interest to give notice of their intention to call hearsay evidence so that any objections may be dealt with pre-trial. Cost sanctions would be likely to follow if a proceeding has to be adjourned to allow rebuttal evidence to be called, or abandoned and recommenced.
Treatment of multiple hearsay
69	One commentator was in favour of including a distinction between first-hand and multiple hearsay, which has been recognised in a number of common law jurisdictions.19  The Law Commission’s view is that the number of times a statement is repeated is sometimes, but by no means always, indicative of its reliability and each case should be treated on its merits. It considers that the proposed admissibility rule will allow such flexibility.
Use of judicial warnings
70	The Law Commission discussed in Evidence Law: Hearsay (NZLC PP15, 1991), the desirability of a judicial warning about hearsay evidence (para 57). The Commission considered this matter further as part of its work on judicial warnings, in response to submissions from practitioners that stressed the importance of a warning about the weight to be attached to hearsay evidence. The Code provides that whenever there is hearsay evidence, a judge must consider whether to warn the jury (see s 108(2)(a)). The Commentary also gives some guidance to judges on the content of such a warning. 
5. Opinion and expert evidence
introduction
71	At common law the general rule is that witnesses may not
	offer their opinion as evidence. A witness must only give evidence of facts and it is up to the fact-finder to draw inferences from those facts. There are two exceptions. The first permits a non‑expert to give opinion evidence if it is a concise way of describing facts that the witness personally perceived, and if the facts cannot conveniently be stated other than in the form of an opinion. The second allows properly qualified expert witnesses to give opinion evidence on matters within their field of expertise. The second exception is circumscribed by a number of ancillary rules: the common knowledge rule,20  the ultimate issue rule,21  and the factual basis rule.22 
72	The law on opinion evidence and expert evidence was discussed in Evidence Law: Expert Evidence and Opinion Evidence (NZLC PP18), a discussion paper published in 1991. The Law Commission stated its view that the general exclusionary rule served a useful function by preventing the admission of unreliable, misleading or superfluous evidence. There was strong support from commentators for such an approach. The Law Commission also recommended abolishing the common knowledge and ultimate issue rules, which had been the subject of disparate application in case law. 
the code provisions
Admissibility of non-expert opinion evidence
73	The common law approach is followed under the Code: non-expert opinion evidence is admissible whenever it is necessary for the witness to communicate or the fact-finder to understand the evidence of the witness (s 22). Commentators supported this approach.
Admissibility of expert opinion evidence
74	The Code abolishes the common knowledge and ultimate issue rules, replacing them with a substantial helpfulness test.
Substantial helpfulness requirement
75	Under the Code expert opinion evidence is admissible if the opinion is likely to “substantially help” the court or jury to understand other evidence or ascertain any material fact (s 23(1)). The substantial helpfulness test was criticised by some commentators who believe it will encourage the greater use of expert opinion evidence, particularly in criminal cases, and this will have the effect of lengthening trials and confusing juries with “junk science”. Concern was also expressed that the substantial helpfulness test would not be sufficient to prevent the admission of evidence that is currently inadmissible under the common knowledge or ultimate issue rules.
76	The substantial helpfulness standard is not intended to change fundamentally the admissibility inquiry that a judge undertakes. There are many indications in case law that judges are already applying a substantial helpfulness test.23  The Law Commission investigated other proposed admissibility standards (such as “necessity”), but concluded that the test of substantial helpfulness will operate consistently with the Code’s aim of facilitating the admission of relevant and reliable evidence to promote the just determination of proceedings.
Abolition of the common knowledge and ultimate issue rules
77	The Law Commission’s consideration of the case law indicated that these two rules often operate in an inflexible manner or are ignored. The Commission remains of the view that the substantial helpfulness test can more consistently and predictably fulfil the function performed by these rules (to prevent usurping the function of the fact-finder and time-wasting). A number of commentators were concerned that abolishing the common knowledge rule (s 23(2)) would see experts giving evidence on matters that are within the common experience of jurors. In the Commission’s view, evidence that adds nothing to what is within the common experience of jurors would not be substantially helpful and therefore would be inadmissible under the Code.
The requirement of a factual basis
78	Section 23(3) of the Code provides that to the extent expert opinion evidence is based on facts, those facts must be established by admissible evidence or be judicially noticed. This provision was strongly supported in submissions, although some commentators were concerned that such a requirement would preclude expert evidence in the form of a hypothesis or theory. The Law Commission considers that the wording “to the extent that expert evidence that is opinion evidence is based on fact” will not preclude expressions of opinion on, or the formulation of, hypotheses or theories that do not depend on a factual basis for their validity.
79	Under the current law, psychiatrists testifying about the insanity or state of mind of a defendant in criminal cases may rely on an out-of-court statement of that defendant in coming to their opinion.24  Under the Code, such statements would be admissible as hearsay if the defendant does not testify. A defendant who chooses to testify will be able to give evidence of his or her state of mind at the relevant time, and if unable to do so because of failure of recall, his or her out-of-court statements will be admissible under s 37(b). Commentators pointed out, however, that the hearsay statements of a potentially insane defendant may not pass the reliability test (if they are offered as truth of their content) and therefore will not be available to provide the factual basis for the expert’s opinion.
80	The Law Commission accepts the validity of this concern and now recommends the inclusion of s 23(4), which allows a statement made to an expert by a person about that person’s state of mind to be admitted in evidence to establish the facts on which the expert’s opinion is based. Statements offered under this subsection will not be subject to the hearsay rule, or the previous statements rule.
Evidence about child complainants
81	A substantial helpfulness test will continue to govern the admissibility of expert opinion evidence about child and mentally disabled complainants in sexual cases, which is currently admitted under s 23G of the Evidence Act 1908. This evidence relates to the intellectual attainment, mental capability, and emotional maturity of the complainant and the general developmental level of children of the same age group as the complainant.
82	Section 23G also permits the expert to express an opinion on whether the complainant’s behaviour was consistent or inconsistent with the behaviour of sexually abused children of the same age group.25  Many commentators were concerned that some judges may exclude such evidence under the proposed Code rule (s 24). While the Law Commission considers that such evidence will generally satisfy the “substantial helpfulness” test, it is desirable to retain an explicit provision admitting the evidence, in order to prevent arguments that a change in the law was intended. 
83	The Law Commission is of the view that consistency evidence should be admitted, if kept within strict limits. As under the current law, consistency evidence will be admissible under the Code to assist the fact-finder in evaluating the behaviour of a sexually abused child. Section 24(2) also allows experts to offer an opinion about the behaviour of a child complainant in a sexual case even if the child is not a witness (if, for example, the child has died before the hearing). A similar provision has not been enacted for adults with an intellectual disability (who were formerly included in s 23G(2)(c)) because there is no research to indicate that they react to sexual abuse any differently from other adults.
84	The Code requires an expert to offer the reasons for his or her opinion, including any evidence necessary for a fair and balanced explanation of the research and experience on which the opinion is based. In the Law Commission’s view, this is necessary to enable the jury to correctly evaluate the expert’s opinion and will add to the helpfulness of the evidence. 
Notice requirement
85	The Code’s notice provision requires any party who proposes to offer expert evidence (whether in criminal or civil proceedings) to give notice in writing to every other party (s 25). The notice must disclose the expert’s name, address, qualifications and the contents of the proposed evidence. The court may dispense with the requirement to give notice in specified circumstances (s 25(3)).
86	Commentators strongly supported the requirement to disclose expert evidence pre-trial. Submissions to the Commission noted that pre-trial disclosure would expedite proceedings and may often facilitate an early settlement. 
87	One commentator argued that pre-trial disclosure would destroy the element of surprise in cross-examination that often enables counsel to expose partisan testimony. The purpose of the new rules is to encourage co-operation with expert testimony in order to make trials more efficient. Surprise tactics are based on the premise that the search for truth is advanced by a “trial by ambush”. But, in the Commission’s view, the fate of such battles often depends on the experts’ ability to remain undaunted by cross-examination, rather than on the soundness of the expert evidence. 
Court-appointed experts
88	In its preliminary paper, the Law Commission proposed a rule for court-appointed experts in both civil and criminal proceedings (paras 90–97). The rule was in keeping with a trend throughout the common law world for greater judicial control of proceedings and was largely an extension of the current position under the High Court Rules. The most significant proposal would have enabled the court to appoint expert witnesses in criminal cases, with defence approval, rather than require the prosecution to call such a witness under s 368(2) of the Crimes Act 1961 (para 97).
89	Submissions divided along professional lines: there was strong support from non-legal professionals, while legal practitioners treated the proposal with distrust and saw it as a judicial “descent into the arena”. 
90	For the reasons which concerned members of the legal profession, the Law Commission has withdrawn the recommendation. Court-appointed experts in civil proceedings will continue under the High Court Rules and the District Courts Rules.
6. Defendants’ statements, improperly obtained evidence, silence of parties in proceedings and admissions in civil proceedings
defendants’ statements: introduction
91	There is nothing in the law that prevents a person from
	making a voluntary, informed decision to admit having committed an offence. However, there are limits on how law enforcement officers may investigate crimes and take statements from suspects. The law of confessions is aimed at ensuring the reliability of incriminating admissions, as well as controlling the methods used to obtain such admissions. When the standards imposed by the law are breached, the resulting confession may be inadmissible to support the prosecution’s case.
92	The current law and the policy behind admissibility rules concerning confessions and improperly obtained evidence were discussed in some detail in the Law Commission’s discussion paper Criminal Evidence: Police Questioning (NZLC PP21, 1992). On one view, confessions are admitted in evidence as an exception to the hearsay rule. This exception is based on the belief that admissions (ie, statements that are adverse to the interests of the maker) are likely to be true. On another view, they fall outside the rule. Confessions are admissions made to a person in authority, typically a police officer. Under current law, confessions may be excluded if there are doubts about voluntariness (with an exception provided by s 20 of the Evidence Act 1908), or if there is a possibility of oppression or unfairness, or for breaches of the New Zealand Bill of Rights Act 1990. 
93	The current rules governing the admissibility of improperly obtained evidence are mainly concerned with evidence obtained in breach of the New Zealand Bill of Rights Act 1990 or evidence “unfairly” obtained in terms of the Judges’ Rules.
the code provisions
94	The Code’s rules on the admissibility of a defendant’s statement offered by the prosecution to a large extent codify the existing law on confessions and improperly obtained evidence. The current inquiry into “voluntariness” is covered by the s 27 rule on reliability. The inquiry into the existence of oppressive conduct is codified in s 28. General unfairness and breaches of the Bill of Rights are covered by a broader rule governing the admissibility of improperly obtained evidence (s 29). The most significant reform in this area results from applying the rules to all statements made by the defendants, not just admissions and confessions. These rules also reform the law on the use of co-defendant’s statements in establishing the guilt (or innocence) of a defendant (see further paras 111-118 below). 
Reliability and oppression rules
95	The reliability rule (s 27) and the oppression rule (s 28) govern the admissibility of a defendant’s statements offered by the prosecution in a criminal proceeding. They have common features, namely, the standard of proof and the factors to be considered when determining admissibility. Both rules apply as exceptions to the general rule in s 26, which provides that all defendants’ statements are admissible unless they contravene s 27, 28 or 29. These sections require the defendant (or co-defendant) or the judge to make admissibility a live issue. 
Raising the issue of admissibility (reliability or oppression)
96	Some commentators considered that the defendant should meet an evidential burden in order to put admissibility in issue. This would usually require actual evidence calling into question the reliability of the statement or the propriety of the methods used in the questioning process.
97	Under current law, the prosecution must establish the admissibility of a confession once the defendant puts the matter in issue. No evidence is required from the defendant. There is no indication that this is causing any problems in practice. The Law Commission considers that the current law protects a defendant’s rights appropriately, and should therefore be codified (ss 27(1)(a) and 28(1)(a)).
The standard of proof
98	Once the admissibility issue is raised, the Code provides that a defendant’s statement is inadmissible unless the prosecution satisfies the judge beyond reasonable doubt that the statement is reliable (s 27(2)) or there was no oppressive conduct (s 28(2)).
99	Some commentators questioned the appropriateness of this standard. They argued that as the jury may eventually have to decide, beyond reasonable doubt, whether the statement was true, the judge need not be satisfied to the same standard on the closely related issue of reliability when determining admissibility. Commentators also pointed out that under the Code the standard of proof when the prosecution seeks to satisfy the court that evidence has not been improperly obtained, is only on the balance of probabilities (s 29(2)). 
100	The Law Commission considers that the difference in the standard of proof is justified. Reliability is at the heart of the search for truth. It is crucial that before admitting potentially damning evidence, the evidence should be subjected to rigorous testing to exclude the possibility that its reliability might have been adversely affected by the circumstances in which a statement was made or the evidence was obtained.
101	Unlike the reliability rule, the aim of the oppression rule and the improperly obtained evidence rule is to discourage law enforcers from using unacceptable ways of obtaining evidence: they are tools of discipline. An appropriate admissibility inquiry involves balancing competing public interests in the integrity of the criminal justice system: the public interest in bringing offenders to justice against the public interest in the honesty of law enforcers. The Law Commission considers that its proposals strike the appropriate balance: an allegation of opprobrious conduct going to reliability or oppression requires a high standard of disproof. While the possibility of such conduct should be excluded beyond reasonable doubt, a lower standard (on the balance of probabilities) is acceptable for conduct which, while objectionable, is not outrageous to the same degree.
Factors relating to reliability and oppression – “internal factors”
102	When considering whether to exclude evidence under the reliability or oppression rules, the Code requires the judge to take into account any pertinent physical, mental and psychological condition or characteristics of the defendant, as well as the nature and circumstances of the questioning and the nature of any threats or promises made to the defendant (ss 27(3) and 28(3)). Some commentators were concerned that including such “internal factors” would operate as an open invitation to defence counsel to launch challenges even if the Police have acted with all due propriety. 
103	Under current law, courts have a discretion to exclude a confession on the ground of unfairness, even though no person in authority was involved in obtaining the confession, and even though the relevant factor was “internal” to the defendant (R v Cooney [1994] 1 NZLR 38 (CA)). In the Law Commission’s view, codifying this approach is unlikely to result in a host of unjustified admissibility challenges. It also considers that an inquiry into a defendant’s particular characteristics gives proper meaning to the rights the rules seek to protect. 
Exceptions to the operation of the reliability rule
104	Section 27(4) provides that if evidence of a defendant’s statement is offered only as evidence of the defendant’s condition (ie, state of mind) at the time the statement was made, the prosecution need not prove that the contents of the statement are reliable (s 27(2)). Evidence admitted for this purpose may still, however, be excluded under the general exclusion (s 8), or a limited use direction may need to be given. 
Improperly obtained evidence rule
105	The improperly obtained evidence rule, as it appears in s 29 of the Code, formed part of the Law Commission’s final recommendations in its report on Police Questioning (NZLC R31, 1994, paras 33–34 and 98–103). The improperly obtained evidence rule replaces the rules governing the exclusion of evidence on grounds of unfairness as well as the prima facie exclusionary rule developed by the courts for evidence obtained in breach of the New Zealand Bill of Rights Act 1990. It includes provisions similar to those in the reliability and oppression rules for raising the issue (in s 29(1)) and onus of proof (in s 29(2)), but differs in three important respects. 
106	First, the improperly obtained evidence rule applies not just to defendants’ statements, but also to evidence (including real evidence) obtained as a result of the statements. Second, the standard of proof on the prosecution to establish that evidence has not been improperly obtained is on the balance of probabilities (s 29(2)). Third, even if the prosecution fails to prove that the evidence has not been improperly obtained, the judge can still admit it if exclusion is contrary to the interests of justice (s 29(3)). 
107	Other notable features of the section are the definition of when evidence is improperly obtained in s 29(4), and the list of factors a judge must consider when determining admissibility – s 29(5). Finally, the rule provides that evidence that is inadmissible under the reliability rule or the oppression rule cannot be admitted under the improperly obtained evidence rule – s 29(6). 
Irrelevance of truth to admissibility of defendants’ statements
108	Some commentators considered that evidence about the truth of a defendant’s statement ought to be considered in determining whether the statement should be admitted as evidence. Most, however, agreed with the Law Commission’s view that evidence about the truth or falsity of a statement is irrelevant. 
109	The rules are concerned with admissibility. So far as reliability is concerned, therefore, the focus should be on whether the circumstances surrounding the making of the statement “were likely to have adversely affected its reliability”. To require truth to be established at this preliminary stage would usurp the function of the jury. The position is essentially the same under s 20 of the Evidence Act 1908, which requires the prosecution to prove that the means by which a confession was obtained “were not in fact likely to cause an untrue admission of guilt to be made”. The actual truth of the admission is not part of this enquiry (R v Fatu [1989] 3 NZLR 419, 429-430).
110	The aim of the oppression and improperly obtained rules is to control the conduct of law enforcers in obtaining evidence. The truth of the evidence can never – and should never – justify unacceptable conduct. This approach is codified in s 31 of the Code.
The impact of the Code rules on the position of co-defendants
111	At common law, one defendant’s statement cannot be used to implicate another defendant. In such cases, juries are directed that the defendant’s statement can be used for one purpose (ie, to implicate the defendant who made the statement) but it cannot be used for another purpose (ie, to implicate the co-defendant).
112	The recommendations on the admissibility of defendant’s statements, as well as other provisions of the Code, reform the law in a number of ways. 
Admissibility of defendants’ statements 
113	Under the Code, the rules governing admissibility of defendants’ statements differ according to who is seeking to offer the statements in evidence. If the prosecution offers the statement in evidence, its admissibility is subject to the reliability, oppression and improperly obtained evidence rules (s 26). If a co-defendant offers the defendant’s statement in evidence, admissibility will be governed by other Code provisions – for example, the hearsay rule (if the defendant does not give evidence) or the previous statement rule (if the defendant is a witness). Under the hearsay rule, a defendant is an “unavailable” witness because a defendant is not compellable (s 16(2)); the primary inquiry will therefore concern reliability. 
Use of defendants’ statements once admitted
114	If a defendant’s statement offered by the prosecution is admissible, then under the Code the defendant’s statement is admissible against that defendant and any co-defendant. If a statement is excluded by s 27, 28 or 29, the statement is inadmissible against the defendant who made the statement as well as any co-defendant. If a co-defendant offers a defendant’s statement, however, the prosecution cannot use it to implicate the defendant (s 30). A jury direction on limited use will be required or, in some cases, severance will be an option.
Co-defendants’ standing to challenge the admissibility of defendants’ statements
115	Under the common law, a co-defendant has no standing to challenge the admissibility of evidence obtained from a defendant in breach of the defendant’s rights. This rule applies only to real evidence because at common law a defendant’s statements cannot be used to implicate the co-defendant. The Code does not differentiate between statements or real evidence for this purpose. Evidence obtained from a defendant, whether in the form of a statement or in some other form, is admissible for the prosecution against all defendants in a joint trial or against none. Therefore, both the co-defendant against whom the evidence is sought to be used and the defendant from whom the evidence was obtained will have a right to challenge admissibility.
Arguments in support of reform
116	Commentators were concerned about the danger of allowing a defendant’s statement, which may be untested by cross-examination, to be used to implicate a co-defendant. 
117	The Law Commission continues to support the proposed reform for the following reasons:
•	Under both the current law and the Code, the jury will hear evidence of a defendant’s statement that implicates a co-defendant. Under the current law, the jury is directed that they may consider the statement to the extent it implicates the defendant, but must ignore the statement to the extent it implicates a co-defendant. Because of this direction, juries are given no assistance with information which they are told they must, but probably cannot, put out of their minds. Under the Code, however, juries will not need to engage in mental gymnastics but will instead receive guidance on how they should approach such evidence – for example, with an appropriate warning under s 108(1) or (2)(c). 
•	It offends common sense to exclude from the jury’s consideration the evidence of accomplices, who are often the only witnesses to the crime.
•	There is no compelling reason not to rely on evidence that the prosecution has obtained fairly, in establishing the case against all of the defendants. 
118	The Commission acknowledges that the Code’s approach will require a shift in emphasis: from one that almost invariably calls for the exclusion of evidence harmful to the defence to one that, consistent with the purpose of the Code, allows the fact-finder to have access to as much relevant and reliable evidence as possible. In doing this, the Code enables juries to fulfil what every judge tells them is their function: to bring to bear their collective common sense and knowledge of human nature to analyse the evidence. 
Silence of parties in proceedings: introduction
119	Sections 32 to 34 of the Code are concerned with a defendant’s “right of silence” pre-trial and at trial: whether evidence of pre-trial silence should be admitted; the use that can be made of it if admitted; and the use that can be made of the fact that the defendant elects not to testify at trial.
120	The Law Commission’s discussion paper, Criminal Evidence: Police Questioning (NZLC PP21, 1992) contained an extensive discussion of the policies relevant to reforming this area of law. They include the presumption of innocence in an accusatorial system; the deterrence of improper police practices; the integrity of the criminal justice system; and unfairness to the defendant. These considerations must be balanced against the public interest in convicting people who are guilty of criminal conduct. 
121	The Law Commission’s view expressed in the discussion paper was that this area of law is in need of clarification “because there are uncertainties which reflect a less than coherent foundation for the existing rules” (para 5). It made its initial recommendations in the context of a developing debate about the appropriate effect of a defendant’s right of silence. The Commission considered there was a need for clear recommendations based on principle.
122	After considering a number of options, including developments in overseas jurisdictions, the Law Commission proposed to strengthen the defendant’s right of silence before trial by including a provision in the Evidence Code that prevented all comment – other than by the defendant or his or her counsel – on the defendant’s exercise of the right of silence before trial. 
123	The majority of those who commented on the Criminal Evidence: Police Questioning discussion paper favoured either strengthening the right of silence or preserving the status quo. No one suggested that the sort of reforms recently enacted in England26  should be adopted in New Zealand. The Law Commission therefore confirms its earlier view – that it does not favour the policy behind the provisions of the Criminal Justice and Public Order Act 1994 (UK) and Schedule 1 of the Criminal Procedure and Investigations Act 1996 (UK). In particular, the Commission considers such reform would be contrary to the New Zealand Bill of Rights Act 1990 – indeed, the English provisions may well be contrary to the European Convention on Human Rights.27  The provisions are also causing difficulties in application that the Commission is anxious to avoid.28  
the code provisions
Silence before trial
124	The Code rules are aimed at controlling the uses that may be made of evidence of a defendant’s pre-trial silence, rather than at regulating the admission of such evidence. The Commission is of the view that the admission of evidence of a defendant’s silence before trial should be treated like any other evidence: that is, subject to any applicable Code provisions. 
Inferences from a defendant’s pre-trial silence
125	The Code prohibits the fact-finder from drawing unfavourable inferences from a defendant’s silence in the face of official questioning before trial (s 32) and from non‑disclosure of a defence before trial. If the trial is before a jury, the judge must direct the jury accordingly. “Official questioning” is defined (s 4) widely to include not just police officers, but also anyone whose functions include investigating offences – for example, insurance investigators and store security staff. “Unfavourable inference” includes inferences about truthfulness as well as guilt – s 32(2). Both definitions widen protection of the defendant’s rights.29  
126	To preclude a back-door attack, the Code also prohibits the prosecution from cross-examining a defendant on the fact that he or she remained silent to official questioning before trial or failed to disclose a defence before trial – s 32(3). Further, s 33 prohibits any comments inviting the fact-finder to draw the sorts of inferences forbidden by s 32(1).
127	One effect of these provisions is to reform the doctrine of recent possession, which allows guilt to be inferred from the fact that a defendant remained silent when found in possession of recently stolen goods. The Law Commission is of the view that the current law is inconsistent with a defendant’s right not to respond to official questioning. Nothing in the Code precludes drawing an inference of guilt from the fact that a defendant was found in possession of recently stolen goods, but no adverse inference should be drawn from the defendant’s silence when questioned about that possession.
Lack of early disclosure of defences
128	Current New Zealand law does not prevent adverse comment on the defendant’s pre‑trial failure to disclose a defence, even though the defendant may have been cautioned that he or she need not say anything. The justification given is that the pre‑trial silence is not being relied upon as evidence of guilt, but is “an answer to the defence [later offered] – a test applied in order to determine its truth or falsity” (R v Foster [1955] NZLR 1194, 1200). As the Commission noted in para 59 of its discussion paper, the distinction is not free from difficulty. The Commission identified two reform options: either to change the words of the caution given to the defendant or to limit the ability of a judge or a prosecutor to comment on the lateness of the explanation.
129	The Law Commission recommends the latter course – that no adverse comment should be made of a defendant’s failure to give notice of defence relied on at trial (s 32(1) and s 33(1)).
Silence at trial
130	The dynamics of a trial necessarily mean that as the prosecution’s case mounts, so will the tactical pressure on the defendant to offer evidence, including his or her own testimony, in an attempt to remove the growing likelihood of a conviction. This is an inevitable result of the defendant’s silence at trial, but the decision whether or not to offer evidence must remain with the defendant. However, two related issues need to be addressed. First, to what extent can the defendant’s lack of testimony assist the prosecution’s case? In particular, should it be allowed to add weight to establish a case beyond reasonable doubt, which, without it, would not reach that standard? Second, in what circumstances is it appropriate for the parties and the judge to comment on the fact that the defendant has not testified, and what are the appropriate terms of such a comment?
Inferences from a defendant’s failure to testify
131	In the Criminal Evidence: Police Questioning discussion paper, the Law Commission commented that it was probably fair to say that both New Zealand and overseas case law show reluctance to clarify finally the evidential effect of a defendant’s decision not to testify (para 109). The Commission, however, also originally proposed no change to the existing law which “permits the trial judge, in particular circumstances, to tell the jury that in assessing the weight or credibility of other evidence, they may have regard to the fact that the defendant has not testified. This direction allows the jury in appropriate circumstances to draw an adverse inference from the defendant’s silence at trial” (para 114).
132	The Commission is of the view that the current case law is unclear because it fails to specify the use that can be made of silence. Consequently, juries are not told whether they may draw an adverse inference about a defendant’s guilt or whether silence is only a factor relevant to credibility. The Commission’s initial proposal did not resolve this issue.
133	The Commission now recommends a clear approach that is consistent with the Bill of Rights. Section 34 states categorically that a defendant’s silence at trial cannot be used to help establish the defendant’s guilt. The section is intended to overrule the decision in Trompert v Police [1985] 1 NZLR 357 (CA) and subsequent cases. Silence at trial may not be used to add weight to the prosecution’s case or, more particularly, to convert a prima facie case into one proved beyond reasonable doubt.
Failure of a party in a civil case to give evidence
134	Section 35 is proposed to avoid doubt: to make it clear that ss 32 to 34 do not apply in civil proceedings.
admissions in civil proceedings
Admission against interest in civil proceedings
135	At common law, an admission is admissible against the party who made it. Under the Code, such admissions in civil proceedings will continue to be admissible when they are relevant. Evidence of an admission necessarily repeats what the witness heard a party say. The evidence will therefore either be hearsay or evidence of a previous statement (if the party is a witness). If the evidence is given by the witness who heard the admission being made, or is contained in a document, that expressly excludes the operation of the hearsay, opinion and previous statements rules – s 36(1). The Commission considers, however, that the situation is different if one party’s hearsay admission is being used to implicate a third party. In such a situation, to protect a third party from liability based on untested hearsay evidence, s 36(2) requires an assurance of reliability (which is a similar inquiry to that imposed by the hearsay rule) or the third party’s consent.
7. Previous statements
made by a witness
introduction
136	With certain exceptions, the current law does not allow
	a witness’s previous statement to be offered in evidence if it is consistent with the witness’s testimony. Even if such a statement is admissible, it can only be used to bolster the witness’s credibility (truthfulness) and may not be used to prove the truth of its contents. A witness’s previous statement that is inconsistent with his or her testimony may be used in cross-examining the witness to challenge truthfulness, but it cannot also be used to prove the truth of its contents unless the witness adopts the statement as true.
137	A witness’s previous consistent statements are sometimes used in a trial to refresh the witness’s memory. This practice has given rise to its own body of law. 
138	These and other aspects of the current law will be changed in significant respects by the Law Commission’s recommendations.
the code provisions
Hearsay reforms and previous consistent statements
139	The definition of hearsay (s 4) excludes the previous statement of a witness (that is, a person who may be cross-examined – s 4). Therefore, under the Law Commission’s original proposals, if a witness gave evidence of a previous statement that was consistent with the witness’s present testimony, that statement would not have been subject to the hearsay rules; it could have been used both to bolster the witness’s truthfulness and accuracy, and to prove the truth of the matters contained in the statement. 
140	Many commentators were concerned that as a result of the Code’s definition of hearsay, nothing would limit the introduction of previous consistent statements. Their arguments against such a reform centred on the likelihood of witnesses fabricating statements and lengthening the trial process:
The idea of making self-serving statements admissible will lead inevitably to the accused and civil litigants “manufacturing” evidence for later use at the trial. A re-trial in a criminal case will become hopelessly clogged up with the record of the first trial if all prior statements are to come in automatically. In the High Court re-trials are about 10-15% of the total number.
Our concern is a practical one. The likely outcome of the reform is that the witness will produce what are essentially dossiers of their earlier statements. Counsel who is cross-examining will have to cross-examine not only on what is said in court but on what has been said on earlier occasions and the process is inevitably going to be drawn out.
141	The Law Commission agrees that such results are undesirable. It now recommends a specific previous statements rule (s 37(a)), which provides that previous consistent statements (that is, statements that repeat the witness’s evidence) are not admissible except to the extent necessary to meet a challenge to that witness’s truthfulness or accuracy. The number of previous statements that would be admissible to meet such a challenge can be limited under s 8 by balancing probative value against the consequence of needlessly prolonging the proceeding. To avoid doubt, s 37(b) expressly admits previous statements if they will provide the fact-finder with relevant evidence that the witness is unable to recall. 
142	Section 37 does not preclude previous statements that are inconsistent with the witness’s testimony. Other Code provisions will regulate the admissibility of such statements. Previous inconsistent statements may also form the basis of cross-examination under s 96.
Recent complaint evidence
143	Under existing law, the recent complaint of a complainant in a sexual case is admissible to bolster the complainant’s credibility. The complaint must be “recent” and cannot be used as proof of the truth of its contents. The Code treats recent complaints in the same way as the previous consistent statements of any witness. They will be admissible only if the credibility of the witness is challenged, and to the extent necessary to meet that challenge.30  But once admitted, the statement can be used to support the truthfulness and accuracy of the witness and to prove the truth of the contents of the statement.
144	Under the Code there need be no enquiry whether a sexual complainant made the pre-trial statement at “the first reasonable opportunity” after the alleged offence.  Such a requirement has been applied with increasing flexibility of late, particularly in cases involving child victims of sexual assaults.31  The Law Commission considers that the timing of a complainant’s (or any witness’s) pre‑trial statement should be relevant only to the weight the fact-finder gives to it and should not affect admissibility.
Previous description
145	If a witness identifies a defendant, s 22A of the Evidence Act 1908 admits the witness’s previous description of the defendant to show consistency. A previous consistent description will be admissible under the Code if the witness’s truthfulness or accuracy is challenged (s 37(a)), so no special rule is required.
Refreshing memory
146	Long delays can occur between the events giving rise to a trial and the trial itself. As a result, memories fade and detail is lost. To deal with this problem, complex rules have been developed to allow witnesses to refresh their memory from documents both before testifying and while in the witness box. In most cases the document referred to will be the witness’s own record of the events, made at an earlier time.
Refreshing memory before court
147	The Law Commission considers that there should be no change in the current law, which places no restriction on the material a witness may use to “refresh” his or her memory before testifying. There is no justification for restricting the process of a witness preparing him- or herself to testify, if for no other reason than that the process would be too difficult to control. If a witness refers to his or her previous statement outside the courtroom, the court will in most cases remain unaware of the fact.
Refreshing memory while testifying
148	In the existing law, there is some doubt whether witnesses must first exhaust their recollection before being permitted to refresh their memory.32  There is also uncertainty whether a witness may read from the document used to refresh memory, as opposed to reviewing the document and then giving evidence in the ordinary way.
149	These issues are bound up with the traditional view that if oral testimony from a witness is available, it is preferable to relying on a previously prepared document.
150	The Law Commission accepts that the current practice of refreshing memory can facilitate confidence and accuracy on the part of a witness (although the Code assiduously avoids using the expression “refreshing memory” because of its accompanying baggage). Under the Code, therefore, if a witness cannot recall details recorded in a previous consistent statement, s 37(b) will allow the statement to be admitted in evidence or to be read as part of the evidence (for example, a police officer reading from a notebook). A previous statement must be admissible before it can be consulted. Once consulted, the statement must be shown to every other party in the proceeding – s 90(2). This is intended to discourage the current practice in which counsel hands the witness a document and, without disclosing the contents to anyone else, asks the witness to read it silently before continuing with the questioning.
8. Evidence of truthfulness (credibility) and
propensity (character)
Introduction
Over the last 150 years the common law rules governing character evidence have grown incrementally, sometimes contradictorily, rarely with fully-articulated rhyme or reason. Suppose that we were, at last, to subject this convoluted construction to thoroughgoing reform, to discard old anomalies and to insist on a serious application of the basic relevance standard of admissibility.33  
151	This challenge from commentator Paul Roberts has largely
	been ignored in most common law jurisdictions, although many within the profession would agree with the sentiments expressed in Cross on Evidence – that the law on the admissibility of character evidence is beset by “confusion of terminology, by the disparity of contexts to which the terminology is applied, by the vicissitudes of history, and by the impact of piecemeal statutory change”.34 
152	Evidence of character and evidence of credibility can both be of great assistance to the fact-finder, to the extent of being decisive. Character evidence is traditionally admitted for two reasons: to attack or support the credibility of a witness or to prove the witness acted in the way alleged. But such evidence can also be of little or no relevance with the result that its introduction may distract the fact-finder from the real issues in dispute. Moreover, for the defendant in criminal cases, evidence of character and credibility can be unfairly prejudicial. The challenge is to strike a balance between making evidence of character and credibility available to the fact-finder if it is useful, and excluding such evidence if it is unfairly prejudicial or of only marginal relevance.
153	In its discussion paper on the topic, published in 1997, the Law Commission was concerned primarily with the task of consolidating the existing approach to evidence of character and credibility. The Commission’s original conclusion was that courts should continue to approach evidence of character with considerable caution, admitting only such evidence that is likely to be substantially probative or helpful.
154	Commentators were concerned that the codification of the existing law did not clarify or improve the current position. The Law Commission’s final recommendations for reform are clearer and simpler and rely more specifically on other admissibility rules in the Code.
the code provisions
Evidence of truthfulness and propensity
155	The Code deals with the concept of “character” in two distinct but related parts: truthfulness and propensity. Rather than refer to “credibility”, which for some people covers both honesty and reliability (or accuracy), the Code uses the term “truthfulness” to make it clear that the rules are not concerned with assessing reliability or accuracy (see s 4(2)). Instead of referring to good or bad “character”, which currently encompasses credibility as well as propensity, the Code only uses the term “propensity” (s 4). The Law Commission considers that truthfulness and propensity are the only aspects of character that are relevant in civil or criminal proceedings. A direct question to our commentators asking whether they could identify any others has brought no affirmative reply.
156	It is important to establish a clear boundary between the two concepts because different admissibility rules apply. The truthfulness rules only apply when the evidence a party is seeking to admit is “solely or mainly” about truthfulness (s 4(2)(b)). This means that even evidence of a person’s propensity to tell the truth (or to tell lies) – since it is evidence that is solely or mainly about that person’s truthfulness – is governed by the truthfulness rules and not the propensity rules.
The truthfulness rules
157	The general rule proposed by the Law Commission is that evidence challenging or supporting a person’s truthfulness is admissible only if it is “substantially helpful” in assessing that person’s truthfulness (s 39(1)). The Commission’s desire is to propose a test of significant or heightened relevance so as to prohibit truthfulness evidence that is of limited value.35  The substantial helpfulness test is aimed at admitting only evidence that will offer real assistance to the fact‑finder. Paragraph C179 of the commentary to s 39 contains a suggested list of the factors that may appropriately be considered in determining substantial helpfulness. (The list is not intended to be comprehensive and the factors will vary with the circumstances of each case.)
158	Some commentators did not support introducing the substantial helpfulness test, arguing that such a test would cause unnecessary uncertainty. The Commission considered other tests (such as “necessity” or “direct relevance” but concluded, with the support of other commentators, that those alternatives would not provide any greater certainty.
159	The hearsay and opinion rules are expressly stated not to apply to evidence of reputation relating to truthfulness (s 39(4)), so that evidence of a person’s reputation for truthfulness or lack of truthfulness may continue to be given, provided only that it satisfies the substantial helpfulness test. 
160	The Code in effect abolishes the collateral issues rule by not enacting it. The collateral issues rule applies when cross-examination is directed to a matter that is not a fact in issue, typically questions about a witness’s truthfulness. It treats a witness’s answers to truthfulness (credibility) challenges as final and does not permit evidence intended to contradict those answers. The policy behind the rule is essentially one of efficiency – the court’s attention should not be needlessly diverted from the main issues.
161	Although the reason behind it is sound, the collateral issues rule can result in excluding helpful evidence if it is applied too rigidly. The Commission considers that other rules (such as the relevance requirement and the general exclusion rule) will operate as a restraint on offering truthfulness evidence of little value. The truthfulness rule will itself provide a significant check. Under the Code, therefore, there is no rule that prevents a party from offering evidence contradicting or challenging a witness’s answers given in response to cross-examination directed solely to truthfulness, as long as that evidence is substantially helpful. If this test is enacted, the Commission considers that there is no need to preserve the collateral issues rule. This proposal received virtually unanimous support from commentators, in part because there is an existing trend to liberalise the rule.36 
162	The truthfulness rules do not apply in cases where truthfulness is an ingredient of a claim or an offence (s 38(1)). So the truthfulness rules will not apply to limit the admissibility of evidence in a perjury trial in which a major issue will be the defendant’s truthfulness. 
Evidence relevant to assessing the truthfulness of a defendant in criminal proceedings
163	The Commission considers that different rules should apply when dealing with evidence that is solely or mainly relevant to the truthfulness of a defendant in a criminal proceeding (whether or not the defendant is a witness). Admissibility rules governing evidence of truthfulness (or propensity) should not admit unfairly prejudicial evidence that may undermine the protection the law traditionally gives defendants under the criminal justice system. Commentators fully supported the Code’s special treatment of evidence of a defendant’s truthfulness (s 40).
164	Both the prosecution and the defence may offer evidence about a defendant’s truthfulness provided the evidence is substantially helpful in assessing the defendant’s truthfulness. Under the Code’s definition of “offering evidence” (s 4), this may be done by a party’s own witness in examination in chief (or re-examination), or through cross-examination of a witness called by the opposing side. However, the prosecution cannot offer evidence of a defendant’s convictions relevant to truthfulness unless the defendant has first put his or her own truthfulness in issue, either by offering evidence about it or by challenging the truthfulness of a prosecution witness. Requiring the prosecution to obtain the judge’s permission before offering such evidence, enables the judge to prevent unfairness in cases where, for example, prosecuting counsel leads a defence witness under cross-examination to impugn the truthfulness of a prosecution witness.
The position of co-defendants
165	The Code provides that defendants may offer evidence to challenge the truthfulness of co-defendants only if the evidence is relevant to the defendant’s defence. In this rule (s 41) the Commission has attempted to preserve the defendant’s right to present a full defence while giving a measure of protection to the co-defendant. If a defendant proposes to offer such evidence, then in the interest of fairness the Code requires prior notice to be given to all the affected co-defendants (s 41(2)). Such a notice must be timely because the proposed evidence may provide legitimate grounds for a severance application. The Code allows the judge to waive the notice requirement in some cases – for example, when counsel was unaware of the evidence challenging the truthfulness of a co-defendant and the witness unexpectedly gave the evidence in the course of testimony at trial.
Propensity evidence
166	Propensity evidence is defined in s 4 of the Code as evidence of a person’s tendency to act in a particular way, as shown by his or her reputation, disposition, acts and omissions.
167	The Commission considers that propensity evidence should be admitted when relevant, since it indicates that a person is likely to behave in a particular way. There are, however, special rules governing propensity evidence about defendants in criminal proceedings and complainants in sexual cases, because of the special circumstances in each of those situations.
168	The general rule governs the position for what would traditionally be viewed as “good character” and “bad character” evidence, but does not purport to deal with any evidence that is solely or mainly about truthfulness because this is the concern of the truthfulness rule (s 39(5)). The operation of the hearsay rules and opinion rules is expressly suspended to allow evidence of reputation relating to propensity (s 42(2)).
Evidence about a defendant’s propensity
169	Courts have always been – and in the Commission’s view rightly – cautious about admitting propensity evidence about the defendant. The concern is that the jury might make unwarranted and dangerous assumptions along the lines of “once a thief, always a thief.” The Law Commission has, for the most part, codified the common law on propensity evidence (both “bad character” and “similar fact” evidence). The proposed rules also clarify certain aspects of the common law (ss 43, 44, 45).
170	As with evidence about truthfulness, defendants in criminal proceedings may offer propensity evidence about themselves, whether in evidence in chief, cross-examination of prosecution witnesses, or rebuttal (s 43). Such evidence will usually be to the effect that the defendant has a propensity to act in an upright fashion, or at least in a manner other than that exemplified by the charge he or she faces. The proposed rule also governs the consequences of offering such evidence: the prosecution may, with leave of the judge, offer propensity evidence about that defendant (s 43(2)).
171	The leave requirement (referred to in the Code as “granting permission”) is critical to the rule. The definition of “offering evidence” means that propensity evidence about the defendant that a prosecution witness gives under cross-examination conducted by the defence amounts to the defendant having offered this propensity evidence about him- or herself. Theoretically, this would then allow the prosecution to offer evidence about the propensity of the defendant. In some cases the result might be unfair. The rule is intended to cover the deliberate introduction of propensity evidence by the defendant and the consequences envisaged in s 43(2) are therefore not automatic. But in cases where the judge allows the prosecution to offer propensity evidence under this section, the more restrictive admissibility rules in s 45 do not apply. If a defendant puts his or her own propensity in issue, the prosecution should be allowed to respond by offering propensity evidence about the defendant.
172	The leave requirement is also critical because it allows the judge to make the distinction between propensity evidence about defendants offered to establish lack of propensity to commit the alleged offence and propensity evidence showing some other regular behaviour of the defendant. The Code rules, and the definition of propensity (s 4), do not make this distinction yet in particular cases it may be critical. For example, a defendant may wish to offer evidence of attending a particular sporting fixture every Saturday afternoon, and so show that he or she could not have been present at the time and place of the alleged offence. Offering this kind of evidence should not open the defendant to cross-examination about his or her previous criminal record, as propensity to commit the offence has not been put in issue by the defence. In such a case the judge should withhold permission in order to prevent unfairness.
173	The Commission considers that a defendant should be able to assert, as part of the defence, that a prosecution witness is more likely to have committed the offence, without exposing the defendant to prejudicial propensity evidence in response. Section 43 therefore does not allow the prosecution to retaliate in that situation.
Propensity evidence about co-defendants
174	The admissibility rule (s 44) on evidence about co-defendants’ propensity repeats the approach to evidence about truthfulness.
Propensity evidence offered by the prosecution about a defendant: “similar fact” evidence
175	Section 45 largely reflects the current treatment of propensity evidence the prosecution offers about the defendant: that is, it codifies the law on similar fact evidence that requires a balancing of probative value against unfairly prejudicial effect. The Commission is still of the view that the current law is operating well and provides the desired consistency and flexibility (Evidence Law: Character and Credibility (NZLC PP27, 1997) paras 268–271). This approach has received strong support from commentators, who also approved of including the factors the judge should consider when applying the test (s 45(3) and (4)).
176	While commentators agreed there was no need to retain s 23 of the Evidence Act 1908, the New Zealand Law Society Evidence Committee argued for the retention of s 258 of the Crimes Act 1961 (allowing evidence of previous possession of stolen goods or of previous convictions for receiving to prove guilty knowledge in receiving cases), on the grounds that s 258 operates successfully and repeal would result in having to make admissibility decisions on a case-by-case basis. The way in which s 258 regulates a particular category of propensity evidence is viewed as being of real value to judges and juries. The Law Commission accepts this position; no change to s 258 of the Crimes Act 1961 is warranted.
Evidence of the sexual experience of complainants
177	The Code contains two substantive amendments to the current s 23A of the Evidence Act 1908. That section provides that evidence about the sexual experience of a complainant with any person other than the defendant is inadmissible unless it is of such direct relevance that to exclude it would be contrary to the interests of justice. In its discussion paper Character and Credibility (NZLC PP27), the Commission tentatively proposed extending the operation of the section to also limit evidence of a complainant’s sexual history with the defendant. This proposal gave rise to a clear split of opinion among the commentators, generally along gender lines. Many community groups and all the women lawyers’ groups supported the extension, while a number of male practitioners were strongly against the proposal. 
178	The most compelling argument in favour of the extension was that an express rule would require both judge and counsel to focus on the reasons for offering the evidence. Male practitioners, however, were mostly of the view that introducing such a rule would only create unnecessary complexity since the complainant’s sexual history with the defendant will always be relevant.
179	The Code provision acknowledges the relevance of a prior relationship with the defendant in some cases but also to reinforce the desirability of making a conscious inquiry into that relevance. Section 46(2) requires that evidence of the complainant’s sexual experience with the particular defendant must be of direct relevance in order to be admitted, but permission from the judge need not be sought.
180	Some commentators nevertheless expressed concern that a direct relevance test may have the effect of misleading the jury if the full story of a relationship is kept from them. The aim of the section is to encourage counsel to be clear about the purpose and relevance of sexual history evidence rather than to exclude such evidence altogether. Some evidence of a sexual history between the defendant and the complainant will not be of direct relevance – for example, the fact that they had consensual sex once a number of years ago. But evidence of a long-term relationship, including a particular pattern of sexual activity, or sexual activity of a particular nature, will probably meet the test in s 46(2) of the Code, especially if the issue is reasonable belief in consent. 
181	The other amendment to the existing law that the Law Commission recommends is a change both in form and in substance. A redrafting of s 23A of the Evidence Act 1908 in the Code relocates the proviso to s 23A(3) into a separate subsection in order to emphasis the effect of the proviso: it makes clear that evidence of reputation in sexual matters should never be considered of direct relevance to truthfulness. The substantive change is that s 46(3)(b) of the Code also prevents such evidence being offered for the purpose of establishing consent. In the Law Commission’s view, reputation in sexual matters can never be relevant to the issue of consent.
182	These two changes also received strong support from community groups. Women lawyers’ groups stated:
We believe that the reputation of the complainant has limited relevance to the issue of consent. The rules of evidence should support the right of individuals to have control over their sexuality. Disallowing reputation evidence which is aimed at establishing consent operates to prevent any illegitimate connection between past and present sexual behaviours. 
183	Other practitioners, however, argued that the proposed amendments would affect the rights of defendants, and they did not support them.
184	The Law Commission remains of the view that the Code’s redraft of the proviso in s 23A(3) is consistent with existing legislation and clarifies the policy behind the proviso. Research indicates that introducing sexual history evidence may divert the attention of the fact-finder from the behaviour of the defendant at the time of the alleged offence, to the behaviour of the complainant on earlier, unrelated occasions. As a result, complainants in sexual cases often feel that they are on trial, not the defendant. The Law Commission considers that it is the evidence offered about the particular incident that should inform the outcome of the proceedings, not evidence related to earlier events in the complainant’s life. As with unhelpful truthfulness evidence generally, such evidence is of low probative value and should not be admissible. The re-drafting of the proviso makes this clear.
185	As discussed in the preliminary paper, the Law Commission also does not consider that the proposed provision impinges on the right of defendants because sexual history evidence that is of direct relevance will still be admissible.
9. Identification evidence
introduction
186	The identity of the person who committed an offence is
	often disputed in a criminal trial. When this happens, the admissibility of eyewitness evidence becomes crucial. The problem is that although such evidence may be compelling, it is not necessarily reliable. 
187	The public interest in bringing wrongdoers to justice and the public interest in protecting the innocent from wrongful conviction both require that only reliable identification evidence be admitted and that unreliable identification evidence be excluded. 
188	The Code rules are based on a growing body of scientific research in this area. The Law Commission has also been concerned to ensure that the recommendations are realistic in terms of practice, in particular Police practice.
189	There has been considerable consultation with the Police, the profession and the wider community; and a number of significant changes have been made to address their concerns.
relevant scientific research
190	Recent psychological research indicates that identification evidence is not as reliable as is commonly believed. In part this is because of the processes that occur whenever human beings acquire, retain, and attempt to retrieve information.
191	The Law Commission is publishing, at the same time as the Evidence Report, a miscellaneous paper on human memory. This paper will collect and summarise psychological and scientific research about children’s evidence, memory of traumatic childhood events, and identification evidence. It is intended to serve as an educational resource. This Report will therefore refer to the relevant research only to the extent necessary for understanding the recommendations.
Three stages of memory
192	Research indicates that, like all mental processes, the process of identification, in which a witness compares a remembered image with a person or an image of a person physically before them, is complex and its accuracy can be influenced by a number of factors. The original image is not recalled like a recording, then systematically compared with the person or image before the witness:
Neither perception nor memory is a copying process. Perception and memory are decision-making processes affected by the totality of a person’s abilities, motives and beliefs, by the environment and by the way his recollection is eventually tested. The observer is an active rather than a passive perceiver and recorder; he reaches conclusions on what he has seen by evaluating fragments of information and reconstructing them.37 
193	There are three distinct phases in the memory process:
•	acquisition (or encoding): ie, what happens when the original observation is made;
•	retention (or storage): ie, what happens between the time of the observation and when the witness is asked to make an identification; and 
•	retrieval (or recall): ie, what happens when the witness is asked to make an identification.
Acquisition
194	The process of identification begins when a witness sees another person in circumstances that suggest that an offence may have been committed. In the acquisition or encoding phase, there are many factors that will affect the accuracy of the initial perception. Some of these factors are inherent in the event itself – such as how much light there was; how far away the offender was; and how long the offender was visible for. Other factors – such as whether the witness has poor eyesight; how the stress of seeing the offence affected the witness; and whether the witness had any biases or prejudices that may have affected the reliability of the observation – are inherent in the witness. Others relate to the characteristics of the offender, such as the use of a disguise. Event, witness, and offender factors can all dramatically affect a witness’s ability to perceive accurately.38 
Retention
195	The retention stage begins when the observed event is recorded in the witness’s memory and ends when the witness attempts to remember the image. Psychological research indicates that stored information is highly malleable and subject to change and distortion during the retention stage. This may be because of subsequent events, external information, or a witness’s own thoughts.
196	Many factors can distort the witness’s original memory. Time can cause considerable memory loss during the weeks and months between first seeing or hearing the person and the identification.39  Another cause of distortion to a witness’s memory may be information about the observed event that is received subsequently: post-event information. The phenomenon of transference or displacement, in which a witness looks at a face seen at a different time in a different context and relates it incorrectly to another situation, is a further factor that may distort a witness’s original memory.40 
Retrieval
197	The conditions prevailing at the time information is retrieved from memory are also critically important in determining the accuracy of an eyewitness account. Psychologists suggest, for example, that 
[m]ost people, including eyewitnesses, are motivated by a desire to be correct, to be observant, and to avoid looking foolish. People want to give an answer, to be helpful, and many will do this at the risk of being incorrect. People want to see crimes solved and justice done, and this desire may motivate them to volunteer more than is warranted by their meagre memory. The line between valid retrieval and unconscious fabrication is easily crossed.41  
198	Some issues of retrieval relate to the procedures used by police when asking a witness to identify a suspect. Another significant issue at the retrieval stage is the relationship between a witness’s confidence and the witness’s reliability. Police investigators are often anxious to gauge an eyewitness’s confidence in making a correct identification both during the crime scene interview, and after the identification has been made. There is substantial evidence that confidence in one’s ability to make a correct identification is a poor predictor of identification accuracy.42 
Identification evidence: over-reliance and wrongful reliance
Jurors’ response to the witness
199	According to the research, there is reason to be concerned about how juries use eyewitness evidence. Studies suggest that many jurors appear to believe eyewitnesses too readily, while other jurors have difficulty differentiating accurate from inaccurate eyewitness evidence. Research also indicates that what jurors think of as indicative of reliable eyewitness evidence, such as witness confidence, memory for peripheral details, or the quality or consistency of the description given,43  are in fact not so.
Effects of reliance on “common knowledge”
200	Studies that have examined beliefs about the effects of stress, violence of the event and the presence of a weapon,44  indicate that the actual effects on the reliability of the identification evidence are often very different from what people expect 
them to be. People also make assumptions about reliability 
based on the witness’s memory of peripheral detail,45  and the quality46  and consistency47  of descriptions of the offender that are often erroneous. 
the code provisions
Admissibility of identification evidence when a formal procedure is used
201	Although the research on eyewitness evidence is still evolving, studies to date do not support the degree of faith that judges, jurors, lawyers and law enforcement officers seem to have in eyewitness evidence. Nor do studies support the courts’ preference for live parades over other procedures for identification.48  However, the scientific evidence suggests that a formalised procedure with specified standard features is more likely to produce a reliable identification. The Code therefore provides a hierarchy of identification procedures that favours formal methods over informal ones, whenever the Police have a suspect in mind. This approach received strong support from commentators.
202	The Code provides that identification evidence will be admissible if a formal procedure is used (that is, if all the elements specified in the Code are present) unless the defendant proves on the balance of probabilities that the evidence is unreliable (s 47(1)). If no formal procedure is used, the evidence will not be admissible unless there is good reason for not following a formal procedure – or if the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made were likely to have produced a reliable identification (s 47(2)). This will allow the admission of reliable identification evidence even when the formal procedure is not followed. The Police particularly favoured this aspect of the proposal.
203	A number of commentators expressed concern that requiring a formal procedure would be unworkable for the thousands of cases heard by a judge alone in the District Courts, where it is the arresting officer who identifies the defendant. The formal procedure is not intended to apply in such cases, and this is reflected in the definition of “visual identification evidence” (s 4) and the words of s 47(1): “If a formal procedure is observed by officers of an enforcement agency in obtaining [an assertion . . . to the effect that a defendant . . . was present at or near a place, etc].” These words are clearly inapplicable if the arresting officer is the person who makes the identification. The reliability of identification evidence in such cases will be a question of weight rather than admissibility.
204	Under the Code, the following elements constitute a formal procedure:
(i)	The procedure must be undertaken as soon as practicable after the alleged offence is reported. This reduces the effect of time and other influences on memory. 
(ii)	The witness must compare the person to be identified with at least eight other people of similar appearance. Research shows that the number and quality of foils in an array can influence its fairness.49  
(iii)	No indication should be given to the witness about who the person to be identified is.
(iv)	The witness must be instructed that the person to be identified may or may not be one of the persons being compared. Some studies have examined the effect of instructions to a witness to identify “which one of these is the person you saw”, compared with instructions including the option that “the person you saw may not be present in the line-up”. They have indicated that suggestive instructions substantially increased the likelihood of false identifications, particularly in line-ups where the offender was not present.50 
(v)	A written and pictorial record must be made of the procedure, which the judge can look at. The record must be sworn to be true and complete by the enforcement officer who conducted the procedure.
205	The elements that constitute a “formal procedure” for obtaining identification evidence are applicable to all types of visual identification: live parades, photo montages, sequential video images.
206	The Commission originally proposed that the investigating officer must not be involved in the identification procedure. This was because some research indicates that an investigator who knows which line-up member is the suspect can inadvertently or advertently influence the eyewitness through non-verbal cues such as leaning forward, smiling, and nodding.51  A number of commentators, including the Police, felt that such a requirement was undesirable and unenforceable because attending officers will need to know who the suspect is for security reasons. The Law Commission accepts this view.
207	Some commentators did not support requiring the witness to be told that the person to be identified may not be one of the persons in the line-up. They believed that an identification procedure would rarely take place without including the person to be identified. The Law Commission, however, remains of the view that there is an increased risk of false identification if the witness feels under pressure to select someone. Studies show such pressure is less likely to arise when the witness is told that the person to be identified may not be present.
208	The identification procedures provided in the Code (which are aimed at facilitating the assessment of identification evidence) also apply to identifying people other than alleged offenders. In some cases such identifications are as critical as identifying the offender.52  Some commentators, including the Police, were concerned about this extension of the rule. They argued that such an extension would require the Police to follow an identification procedure for each witness identified as being present at the time of the alleged offending. It is not intended that the formal procedure will be used in identifying people other than the suspect, unless identifying another person is crucial to the prosecution case. Under s 47(4)(d), a formal procedure will not be necessary in cases where identification cannot reasonably be anticipated to be at issue.
209	A clear majority of commentators supported the elements of the formal procedure that the Code now contains. 
210	The Code provides that “good reasons” for not following a formal procedure exist only in the following circumstances: 
(i)	the person to be identified does not consent to the formal procedure (and no photograph or video record of the person is available to the enforcement agency); or
(ii)	the person to be identified is singular in appearance and it is impossible to disguise this; or
(iii)	there has been a substantial change in the person’s appearance between the time of the offence and the identification procedure; or
(iv)	identification could not reasonably be expected to be an issue at trial (for example, when the person identified is well known to the person making the identification); or
(v)	the person has been identified soon after the offence occurred (for example, immediately after a crime is reported, a police officer drives around the vicinity with the victim in the police vehicle, to see if the victim can spot the alleged offender); or
(vi)	the person has been identified as the result of a chance meeting.
211	The commentators assisted in developing this list of “good reasons”, and it reflects the view of the majority. A number of commentators were concerned about the fact that this list of “good reasons” is exhaustive. The Law Commission is of the view, however, that the list reflects sound policy considerations and that, because the existence of a “good reason” assures admission, the list should be exhaustive. In the absence of a good reason, the evidence may still be admissible, as long as the evidence is reliable (s 47(2)). 
212	One commentator considered that to allow the suspect’s refusal to consent to a formal procedure to constitute “good reason” for not following the formal procedure would remove any incentive to participate in the process. If a suspect does not agree to participate in the formal procedure, the Police will have to rely on an informal procedure, with the result that the identification could be excluded as unreliable. In the commentator’s view, this would mean that most identification evidence would be admissible only under the exceptions to the general rule.
213	The Code avoids this undesirable result by providing that lack of consent will only be a good reason when no photograph or video record of the person to be identified is available to the enforcement agency. Since a formal identification procedure will usually only occur after an arrest has been made, a photograph will most likely be available.
214	The Code provides that even when it is not possible for the Police to follow all the requirements of a formal procedure, they should adhere to as many of the formal requirements as possible.
Voice identification evidence
215	Although little is known about the factors that contribute to the reliability of voice identification, research indicates that voice identification is even more unreliable than visual identification. The Commission therefore has not attempted to formulate a rule equivalent to the one governing visual identification evidence, but is concerned to ensure that voice identification evidence is scrutinised carefully. The Code provides that voice identification evidence will not be admissible unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made were likely to have produced a reliable identification (s 48). Commentators strongly supported the Commission addressing the issue of voice identification.
Jury directions
216	Section 112 of the Code substantially re‑enacts the current s 344D of the Crimes Act 1961, which deals with judicial directions in the case of identification evidence. The Commission is of the view that even with a more detailed admissibility inquiry, juries still need to be cautioned about identification evidence.
217	The Commission originally drafted a detailed judicial direction that contained references to research on memory. Commentators did not support such an approach, arguing in favour of shorter and simpler jury directions. Commentators supported retaining the current provision, but noted the desirability of judges tailoring the direction to the circumstances of the particular case. The Law Commission agrees with this approach.
10. Evidence of convictions and civil judgments
introduction
218	The rule in Hollington v F Hewthorn & Co [1943] KB 587
	excludes convictions as evidence of the defendant’s guilt in later civil proceedings, whether such evidence is tendered against third parties or against the defendant in person. The rule is generally treated as an evidential matter that stands alone, but because it is concerned with the use that may be made of prior convictions, it is related to the Law Commission’s proposals about truthfulness and propensity evidence. The rule in Hollington v Hewthorn also raises issues of hearsay, opinion evidence, and estoppel.
219	In common with many other jurisdictions, New Zealand has abolished the rule to the extent that in defamation actions convictions are “sufficient evidence”, and in all other civil actions they are “admissible as evidence”, that an offence has been committed. These changes to the law were enacted in ss 23 and 24 of the Evidence Amendment Act (No 2) 1980, as a result of the recommendations of the Torts and General Law Reform Committee in The Rule in Hollington v Hewthorn (1972).
220	This reform of the rule was, however, somewhat limited. In the context of a codification exercise,53  the Law Commission considered it timely to address other related issues. These included whether the scope of s 23 should be extended to make convictions admissible in criminal as well as in civil proceedings, and whether acquittals should be admissible in any later proceedings. The Commission also considered whether admitting a conviction should carry with it a presumption of guilt or be conclusive evidence of guilt.
extending abolition of the rule in hollington v hewthorn: the code provisions
Conviction as evidence in civil proceedings
221	The Evidence Code preserves the abolition of the rule in civil proceedings and includes an admissibility provision similar in substance to s 23 of the Evidence Amendment Act (No 2) 1980. Section 23 introduced a rebuttable presumption that a person is guilty of an offence of which he or she is proved to have been convicted.
222	The Torts and General Law Reform Committee recommended against introducing a presumption of correctness of a conviction. They viewed it as unfair to the person challenging the conviction: such a person should only have to convince the trier of fact that “there is a substantial possibility that the facts did not support the conviction” (para 25), as it is up to the plaintiff to prove their case. The Committee also thought that a presumption would be unfair to third parties (insurance companies, employers) who wish to avoid the effect of the conviction and were not party to the criminal proceedings.
223	The Commission originally proposed that prior convictions of any person should be conclusive of guilt in any civil proceedings (including defamation proceedings). In the Commission’s view, giving prior convictions only presumptive weight would enable convicted persons to either recover damages or avoid liability by proving on the balance of probabilities that they did not do what has already been proved beyond reasonable doubt. Some commentators, however, pointed out that people may plead guilty, to careless driving for example, to resolve the case speedily but may well wish to contest a large civil claim arising out of the same incident. The Law Commission considers that this example has validity. The Code provides therefore that prior convictions will create a presumption but will not be conclusive evidence of guilt (s 49).
224	Placing an onus (rebuttable by contrary proof on the balance of probabilities) on the person seeking to disprove the validity of the conviction only limits and does not preclude the possibility of re-litigating the earlier proceedings. However, such litigation would be limited by the principles of abuse of process.54  In this sense, a rebuttable presumption does not prevent third parties arguing against liability at a different time. Not to give convictions presumptive weight is also inconsistent with the serious consequences that flow from convictions.
Conviction as evidence in defamation proceedings
225	For convictions in defamation proceedings, the Code simplifies and reforms the rule in s 24 of the Evidence Amendment Act (No 2) 1980. The significant change in the Code is that under s 50 a conviction will be conclusive proof of guilt in a later defamation proceeding.
226	The Torts and General Law Reform Committee made a similar recommendation.55  The Statutes Revision Committee rejected this recommendation on the grounds that conclusiveness “might . . . oust the rights of a pardoned person”.56  This concern was, however, addressed by the statutory requirement that convictions must be subsisting at the time the allegedly defamatory statement was made (s 24(2)(b)), and therefore, in the Commission’s view, it is not a reason for not treating a conviction as conclusive.
227	The Law Commission agrees with the Committee’s view, which was also strongly supported by the commentators on the Code. The Commission considers that in a defamation proceeding the defendant should be entitled to a complete defence when the publication sued on is based on the fact of a criminal conviction established to the highest standard of proof.
Acquittals in civil proceedings
228	The admissibility of an acquittal to prove innocence cannot be equated with the admissibility of a conviction to prove guilt. All that an acquittal proves is that the prosecution has failed to establish guilt to the standard of beyond reasonable doubt.57  
229	The Evidence Act 1995 (Aust) does not allow evidence of prior acquittals to be admitted in later civil proceedings. The Australian Law Reform Commission stated that an acquittal “is of such minimal probative value that there is very little to be gained by admitting evidence of it and the disadvantages flowing from its admission are considerable”.58  
230	The Law Commission agrees that a prior acquittal is usually of low probative value. In some situations, however, evidence of an acquittal is clearly relevant and should for that reason be admissible. In a defamation proceeding, where the allegation under dispute is that the plaintiff was convicted of an offence, evidence of an acquittal should be admissible to rebut any defence of truth and possibly support a claim of malicious falsehood. An acquittal may also be relevant if an acquitted defendant wants to sue the Crown for malicious prosecution.
231	The Commission considers there is no need for a specific rule to allow the admission of relevant acquittals because of the fundamental principle in the Code that all relevant evidence is admissible. It follows from what is said above that acquittals should not be presumptive of innocence.
Conviction as evidence in criminal proceedings
232	The New Zealand Torts and General Law Reform Committee was of the view that the rule in Hollington v Hewthorn did not apply in criminal proceedings (para 36). A more recent obiter statement by Cooke J suggests that, as a result of Jorgensen v News Media (Auckland) Limited [1969] NZLR 961 (CA), “if the person’s conduct on the earlier occasion is relevant, the limits of the doctrine of estoppel should not rule out the admissibility of the conviction in later criminal proceedings either.” (R v Davis [1980] 1 NZLR 257, 262 (CA)). There is no doubt that there are policy reasons for extending abolition of the rule in Hollington v Hewthorn in this context, if it applies at all.
233	The Law Commission considers that there are at least three policy reasons why convictions should be admissible in criminal proceedings: 
•	Time and expense will often be saved, since making convictions admissible would avoid forcing a party to litigate a matter that has already been resolved.
•	It makes available evidence that is not only relevant, but also highly probative, since guilt will already have been established to the criminal standard of beyond reasonable doubt. 
•	Not to admit such evidence would run contrary to the policy of the criminal justice system that a criminal conviction is sufficient basis to impose grave penalties.
234	The Law Commission’s proposal, therefore, is that evidence of prior convictions be admissible in a criminal proceeding, but the use a party proposes to make of those convictions should govern the decision on admissibility. In particular, the Commission intends the Code provisions to control the admissibility of evidence directed at the truthfulness or propensity of a defendant in a criminal proceeding.
235	The party seeking to offer evidence of the prior conviction of any person will be required to identify the issue to which the conviction is relevant. If it is relevant to truthfulness or propensity, admissibility will be governed by those rules. The propensity rules operate to give the greatest measure of protection to defendants in criminal cases. By contrast, if a prior conviction is relevant to an issue in the case, for example the conviction of a third party for theft to support a charge of being an accessory after the fact, it is likely to be admissible.
236	Given the higher standard of proof in a criminal case, the Commission’s view is that the conviction should operate to establish a presumption of guilt that is rebuttable on the balance of probabilities. Evidence offered to challenge the validity of a previous conviction may also be limited by abuse of process principles.59  
237	The Commission’s proposals in this area were fully supported by the commentators and are contained in s 51 of the Code.
Acquittals in criminal proceedings
238	In later criminal proceedings, the rule against double jeopardy is clearly an important consideration in determining the admissibility of prior acquittals. If the defendant and the charge are the same in both proceedings, a previous acquittal is regarded as being conclusive, which means that unless it was obtained by fraud, it cannot be re-litigated.60  
239	If the defendant in the later proceeding is different from the defendant in the earlier proceeding, and seeks to adduce evidence of the latter’s acquittal, to exclude such evidence can arguably result in a serious anomaly, as the case of Hui Chi-ming v R [1992] 1 AC 34 shows. In that case the appellant had been convicted of murder as part of a joint enterprise, for which the principal offender, in an earlier trial, had been acquitted of murder and convicted of manslaughter. The appellant sought to tender evidence of the principal offender’s acquittal of murder. But the House of Lords, applying the reasoning in Hollington v Hewthorn, held that the verdict reached in an earlier trial “amounted to no more than evidence of the opinion of that jury” and dismissed the appeal. 
240	Such a rigid approach may operate to the defendant’s extreme disadvantage. In the Commission’s view, there is merit in making the acquittal admissible as evidence – though not as conclusive evidence. Admitting the acquittal may give the court the opportunity to hear argument on and take into account the facts leading to the acquittal if they are of significance.
241	As already stated, the Commission considers that there is no need for a specific rule to allow the admission of relevant acquittals because of the fundamental principle in the Code that all relevant evidence is admissible (s 7).
Civil judgments as evidence in civil or criminal proceedings
Civil judgments in criminal proceedings
242	The differing standards of proof create what the Commission sees as an insuperable barrier to admitting civil judgments in criminal proceedings. To admit a civil judgment in a criminal proceeding would allow a court, which must otherwise act only on proof beyond reasonable doubt, to accept findings arrived at on the balance of probabilities. This would have unfavourable repercussions on both the reliability and the fairness of the evidence. For this reason the Law Commission does not propose a rule making civil judgments admissible in criminal proceedings.
Civil judgments in civil proceedings
243	Two areas in which civil judgments have been commonly admissible are findings of adultery in matrimonial proceedings and findings of paternity. Since New Zealand now has a “no-fault” policy in the former (s 39(1) of the Family Proceedings Act 1980), it is of no further concern here. But evidence of previous findings of paternity is admitted under s 8(3) of the Status of Children Act 1969, for example, although not as conclusive evidence. 
244	In civil proceedings in general, if both the parties and the issue are the same, the two limbs of the doctrine of res judicata, “cause of action estoppel” and “issue estoppel” will govern, with the result that neither the action nor the issue can be re-litigated. The Law Commission proposes to preserve the common law on these matters.
245	If the parties differ, however, the matter is not absolute. The 1967 Report of the Law Reform Committee of Great Britain pointed out that because “in civil proceedings the parties have complete liberty of choice as to how to conduct their respective cases and what material to place before the court” (para 38), this can lead to one proceeding differing substantially from another even if the same issues are in dispute. For this reason, the Law Reform Committee did not favour making an earlier finding admissible in a later action. 
246	While there are arguments against such a stance, the Law Commission considers that exclusion remains the best approach. This is also the approach taken under s 93(c) of the Evidence Act 1995 (Aust) and it was well supported by the Law Commission’s commentators.
247	The Code therefore provides that civil judgments or findings of fact should be inadmissible to prove the existence of a fact, but the Code preserves the operation and development of the common law on judgments in rem as well as the law on res judicata and issue estoppel (s 52).
11. Privilege and confidentiality
INTRODUCTION
248	A primary objective of the law of evidence is that all relevant
	facts should be available to the decision-maker. This objective is enacted in s 7 of the Code, which states that, as a fundamental principle, relevant evidence is admissible. However, there is sometimes a cost in that disclosing information communicated in confidence may damage the relationship within which the communication was made, or conflict with some fundamental right. Where the law protects a class of relationships or a right by limiting disclosure of confidential information, a privilege is said to exist, entitling a person to withhold relevant evidence from a court. The courts may also exercise a discretionary power to protect confidential information that is not governed by a particular privilege. 
249	The Law Commission’s discussion paper Evidence Law: Privilege (NZLC PP23) was published in May 1994. It described at some length the existing law on privilege, the policy problems that arise and the Commission’s recommendations for resolving those problems. A further discussion paper, The Privilege Against Self-incrimination (NZLC PP25), was published in September 1996. This paper put forward a number of proposals to reform the law on the privilege against self-incrimination. Each paper contained a draft set of provisions for inclusion in the Evidence Code. The Code departs in substantial respects from the proposals contained in the preliminary papers. These changes reflect the views expressed in submissions, the advice of peer reviewers and indeed changes in the constitution of the Law Commission itself.
the code provisions
Effect and protection of privilege
250	In s 54, the Law Commission has defined the scope of a privilege conferred by this part of the Code in broad terms. In any proceeding, the privilege holder has the right to refuse to disclose or, in certain circumstances, to permit the disclosure of privileged communications, information or documents, and any opinion based on them.
251	The submissions in general supported the draft provision.
Legal professional privilege
252	The Law Commission’s original proposal involved a radical revision of legal professional privilege. The Commission proposed extending legal professional privilege to communications with all persons conducting a case or giving legal advice about a case, regardless of whether they were legally qualified. The status of legal advisor was to be determined by function rather than by qualification. This would have extended the privilege to communications with McKenzie friends and accountants giving tax advice of a legal character. The broader application of the privilege was to be moderated by limiting absolute privilege to communications made in contemplation of litigation. Only a qualified privilege was proposed for general legal advice and preparatory material for a proceeding. In determining whether materials were prepared in contemplation of litigation, a substantial purpose test was considered appropriate.
253	These proposals proved controversial and the Law Commission reconsidered them. A particular concern was that the proposals ran counter to recent judgments of the House of Lords (R v Derby Magistrates’ Court, ex parte B [1996] 1 AC 487), and the High Court of Australia (Carter v Managing Partner, Northmore Hale & Leake (1995) 129 ALR 593), which strongly supported the absolute nature of legal professional privilege.61  The Law Commission was also persuaded by the argument that giving the courts power to override the privilege would be likely to result in interlocutory applications as a matter almost of routine in litigation of any size, with resulting delay and added expense. 
Privilege for communications with legal advisers and employed legal advisers
254	Consequently, the Code preserves an absolute privilege for communications with legal advisers and confining this privilege to dealings with professional lawyers who are subject to strong ethical and disciplinary codes. Section 55 essentially re-enacts the current law on privilege for communications with legal advisers, including the special provisions for professional advice from patent attorneys in s 34(4) of the Evidence Amendment Act (No 2) 1980.
255	Preserving the absolute nature of the privilege for communications with legal advisers required a resolution of conflicting judicial views on the position of corporate or in-house lawyers. There is concern about whether the duty of obedience and fidelity, which is a necessary element of the employer-employee relationship, is consistent with the independence said to be necessary for fulfilling the purpose of the privilege. The organisations of employed solicitors that the Law Commission consulted made clear that they resented the suggestion that employed solicitors were less independent than lawyers in private practice. It was put to us that a practitioner dependent on a single client for a substantial part of his or her income is no more independent than an employed lawyer. 
256	The Law Commission prefers not to found its recommendation on issues of relative independence. Of more practical concern is the fact that an in-house lawyer is likely to be called upon to perform duties going beyond the usual functions of a lawyer. A company executive should not be able to shield activities from scrutiny that are not lawyer’s activities, simply because the executive has qualified as a lawyer. This is so even though the advice of a competent lawyer in private practice is unlikely to be totally silent on the commercial and public relations consequences of that advice. Consequently, s 53, which deals with matters of interpretation, defines employed legal advisers as a subcategory of legal advisers, and subs 55(3) restricts the privilege in relation to the former to services provided solely in the capacity of legal adviser. 
Privilege and solicitors’ trust accounts
257	Section 56 re-enacts the substance of s 35A of the Evidence Amendment Act (No 2) 1980, which limits legal professional privilege in connection with searching solicitors’ trust accounts.
Privilege for preparatory materials for proceedings
258	The objections to a qualified privilege for communications with legal advisers, referred to in para 253, apply equally to a qualified privilege for preparatory materials for proceedings. Commentators also suggested that advice given by “expert witnesses” should be protected by an absolute privilege because experts needed to be entirely frank about all aspect of a client’s case, including unfavourable aspects. Consequently, s 57 retains an absolute privilege for preparatory materials for a proceeding. The privilege only applies if preparing for a proceeding was the dominant purpose for creating the material. The substantial purpose test proposed in the preliminary paper was not considered sufficiently robust for the absolute privilege now recommended. The privilege will not apply to non-criminal proceedings under the Guardianship Act 1968, because the Commission believes that the interests of the child under the Act outweigh the interest of the parties in retaining control of the privileged material. 
Legal professional privilege and tax
259	The Commission of Inquiry, popularly known as the Davison Commission or Winebox Inquiry,62  expressed the view that legal professional privilege in all tax matters should be abolished. On 31 March 1998 the Government announced the appointment of a Committee chaired by Sir Ian McKay to consider various issues of tax compliance. That Committee’s report was published in late February 1999.63  It recommends that a final determination of general issues relating to legal professional privilege for tax advice should await the Law Commission’s report. The Commission has not endeavoured to deal with this aspect of legal professional privilege in the Evidence Report but will, as soon as possible, be issuing a supplementary report on the topic. It is expected that any statutory provision it recommends would be included in the Tax Administration Act 1994. 
Privilege for settlement negotiations
260	People who have a dispute about their rights and liabilities will often wish to negotiate with each other to see if the dispute can be settled or compromised. Statements made in the course of such negotiations are said to be made “without prejudice” to the speaker’s legal position and are inadmissible in later court proceedings under the “without prejudice” rule. 
261	The Law Commission considered the evidential “without prejudice” rule to be a useful legal doctrine. It proposed a privilege, in civil proceedings, for communications between parties to a dispute, if the communication was intended to be confidential and was made in attempting to settle the dispute. The Commission originally proposed that the privilege be a qualified one that could be overridden in the interests of justice. However, the Commission now recommends an absolute privilege in keeping with its approach to legal professional privilege.
262	Some jurisdictions recognise a version of the “without prejudice” rule in criminal proceedings; for example, in the United States, parties may negotiate over a mutually acceptable plea in a practice known as “plea bargaining”. The practice is not formally recognised in New Zealand criminal procedure and, therefore, the Commission does not consider it appropriate to introduce such a provision in a New Zealand evidence code. 
263	One commentator suggested that the provision expressly cover mediation. The Law Commission considers that the provision as it stands provides adequate protection for communications between parties involved in mediation. The presence of a third party as mediator is not a bar to invoking the privilege. Such communication would also be protected under the general discretion to protect confidential communications in s 67. 
Privilege for communications with ministers of religion
264	The courts have always been reluctant to compel disclosures of confessions made to ministers of religion. Although no common law privilege has ever existed in New Zealand, legislative protection has existed since 1885. The Evidence Amendment Act (No 2) 1980 s 31 currently prohibits a minister from disclosing any confession in any proceeding, except with the consent of the confessor. Communications made for any criminal purpose are excepted. The privilege is justified by considerations of privacy and the right to freedom of religion. 
265	The Code retains an absolute, defined privilege rather than relying on the general discretion to protect confidential communications. Section 59 will apply more broadly than the current law, extending to any communication made in confidence to or by the minister in his or her capacity as a minister of religion, for the purpose of obtaining religious or spiritual advice, benefit or comfort. This will include religious and spiritual communications in a general sense, but not communications for purely temporal purposes, such as advice on the control of a wayward child.
266	The definition of “minister of religion” is also broader than the current definition in s 2 of the Evidence Act 1908. Subsection 59(2) defines “minister of religion” as a person who “has a status within a church or other religious or spiritual community which requires or calls for that person to receive confidential communications . . . and to respond with religious or spiritual advice, benefit or comfort”. Thus, the privilege would not be confined to practices within traditional religions and churches. However, it would not extend to rationalist systems of ethical conduct that do not have a religious or spiritual basis.
267	The submissions clearly supported a privilege for ministers of religion. There was almost unanimous support for an absolute privilege. Some commentators were concerned that the definition of “minister of religion” might include many fringe groups for whom the privilege may not be appropriate. Nevertheless, the Commission considers that, given the difficulties of defining the term, it has struck the right balance. The provisional draft rule has been retained unchanged.
Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists
268	Communications made to medical practitioners have been granted a limited privilege against disclosure in New Zealand court proceedings since 1885. The privilege is justified by society’s interest in encouraging its citizens to seek medical attention and by considerations of privacy. However, the range of matters a consultation with a medical practitioner may cover is very wide. Not all will deal with deeply private matters and in very few instances will citizens not seek medical attention for fear of court proceedings.
269	Under s 32 of the Evidence Amendment Act (No 2) 1980, a registered medical practitioner or a clinical psychologist may not, in civil proceedings, disclose communications made by a patient, which the patient believes are necessary for examination, treatment or other action. The privilege is subject to a number of exceptions. The Law Commission did not consider that a specific privilege was necessary in civil proceedings. Both the need for protection and the need for the information will vary greatly from case to case. These are best dealt with through applying the general discretion to protect confidential communications.
270	However, the Commission accepted that a very limited specific protection was useful in criminal proceedings. Section 33 of the Evidence Amendment Act (No 2) 1980 currently provides absolute protection for communications a patient makes to the practitioner if the patient believes they are necessary to enable the practitioner to examine, treat or act for the patient for drug dependency or any other condition or behaviour that manifests itself in criminal conduct. A proviso excludes from protection consultations that are ordered by a court or other lawful authority.
271	Section 60 of the Code retains the privilege contained in s 33. However, it has a wider scope, including all information acquired in confidence as a result of the examination or treatment of the condition. It also prevents the information from being disclosed in any criminal trial, not just the trial of the person being treated, as is the case with s 33.
272	In general, the submissions favoured the draft provision. However, several expressed concern that consultations outside the relatively narrow limits of s 60 would only be protected by the general discretion to protect confidential communications. It was feared that the lack of an express privilege would discourage patients from attending their doctor or at least discourage frank communication between doctor and patient. The Law Commission takes the view (supported in several submissions) that the main concern of patients is not the possibility of disclosure in court but disclosure in other social circumstances. That concern is sufficiently met by a duty of confidentiality rather than a privilege.
273	Two submissions, containing opposing views, were received specifically on s 60(2). One suggested an objective test that required the patient to believe on reasonable grounds that the communication was necessary for the treatment. The other suggested no test at all. The Commission considers that s 60(2) strikes the right balance.
274	The original draft only protected communications and information obtained by way of examination during a consultation. One commentator pointed out that the treatment prescribed may indicate the nature of the condition being treated and should also be protected from disclosure. The Law Commission agrees that this is a legitimate concern and has extended the privilege to treatment in s 60(4). 
Privilege against self-incrimination
275	The privilege against self-incrimination permits a person to remain silent when asked to provide information, on the ground that the information would incriminate the person claiming the privilege. The main justification for the privilege is that it is an essential feature of our accusatorial system of criminal justice. The privilege applies in its traditional context of a witness testifying in court. The privilege is also available as a justification to resist pre-trial discovery of documents and interrogatories in civil proceedings (Taranaki Co-op Dairy Co Ltd v Rowe [1970] NZLR 895 (CA)).
Extent of the privilege to be limited to offences punishable by imprisonment
276	The privilege against self-incrimination is currently given a broad application by New Zealand courts. Generally, anyone may refuse to comply with a demand for information if the reply is reasonably likely to lead to or assist the criminal prosecution of the person from whom the information is demanded. Even the possibility of prosecution for a regulatory offence, not punishable by imprisonment, is sufficient to invoke the privilege (Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA)). The privilege is also available if the reply may lead to liability for a civil penalty (other than punitive damages).
277	Section  61 limits the privilege to situations where the incrimination involved is for an offence carrying a potential punishment of imprisonment. The privilege against self-incrimination arose in a time when the consequences of incrimination were harsh. Many current applications of the privilege have moved far from the historical roots of the privilege. In the Commission’s view, there is a strained artificiality in modern applications of the privilege in which the potential detrimental effect of the incrimination involved is minimal. 
278	The Commission originally proposed retaining the privilege for liability to a civil penalty. However, a number of commentators questioned this. One commentator pointed out the difficulties of determining whether some of the existing legislative sanctions amounted to a penalty in law. The existence of the privilege is also difficult to justify when no protection exists for serious forms of civil liability, such as loss of custody of a child, injunctive orders or substantial damages. The Commission was persuaded by these arguments. The definitions of “incriminate” and “self-incriminate” in s 4 refer solely to criminal prosecutions.
Documentary and real evidence
279	The privilege against self-incrimination, which protects against compelled testimonial disclosure, arises from the historical development of the privilege as a reaction to the inquisitorial oath. This oath required the witness to answer all questions put to him or her, even if there was no specific accusation. In New Zealand, the privilege has expanded to the point where it may justify a refusal to produce an object or a document that existed before the demand for information was made, if the act of production would itself amount to an incriminating “testimonial” disclosure.
280	In The Privilege Against Self-Incrimination preliminary paper (chapter 8), the Law Commission proposed that the privilege should not protect documents already in existence before the demand for information is made. Such documents should be treated on the same basis as real evidence, which is not normally within the scope of the privilege. The Commission suggested that the privilege should continue to be available to protect any testimonial disclosure that can be implied from the act of producing a previously existing document or an object (ie, a non-verbal assertion), and we requested submissions in this difficult area.
281	The bulk of submissions agreed with the Law Commission’s proposal to remove the privilege for pre-existing documents. There was also support for removing testimonial disclosures implied from producing an object from the scope of the privilege. One commentator pointed out that it was illogical to remove the privilege from pre-existing documents and then to allow them to be protected on the grounds that the act of producing the document was a testimonial disclosure coming within the scope of the privilege. The Commission accepts the force of this argument. Accordingly, the definition of “information” in s 4 is limited to statements made orally or in a document created after and in response to a request for the information (but not for the principal purpose of avoiding criminal prosecution under New Zealand law). This restores the privilege to its original form as a privilege against compelled testimony.
Corporate claims to privilege
282	Under current law, the privilege against self-incrimination can be claimed by a corporation (New Zealand Apple and Pear Marketing Board v Master and Sons Ltd [1986] 1 NZLR 191 (CA)) acting through its directors and senior officers, who may decline to supply information tending to incriminate the corporation that they represent. However, for the reasons discussed in the preliminary paper, the Law Commission considers the privilege should not extend to corporations. Therefore s 61(4)(a) expressly provides that the privilege may not be claimed on behalf of a body corporate. 
283	The Law Commission received some careful submissions opposing the proposal to remove the ability of corporations to claim the privilege. The bulk of submissions, however, agreed with the Commission’s view that New Zealand should join the growing number of jurisdictions refusing to grant the protection of the privilege to corporations.
Incrimination of spouses
284	There is some authority to the effect that a person may claim the privilege on behalf of his or her spouse (Hawkins v Sturt [1992] 3 NZLR 602). There is also one legislative provision that allows the privilege to be claimed on the ground that disclosure would tend to incriminate the claimant’s spouse (s 18 of the Petroleum Demand Restraint Act 1981). Section 61(4)(b) expressly limits the protection of the privilege against self-incrimination to the person claiming it. The majority of submissions supported this approach.
Statutory derogations of the privilege
285	Section 61(3) provides that the privilege will be available unless a statutory provision expressly abrogates it, and to the extent that a statutory provision does not explicitly remove the privilege. Some commentators were concerned about the implications of this for statutory information-gathering powers. One commentator, for example, felt that the policy expressed in s 61(3) “would upset the present statutory balance” and suggested that such a section should not be enacted until a complete review of the relevant statutory provisions is undertaken.
286	The Commission considers that this provision appropriately puts the onus on government departments with statutory information-gathering powers to review their governing legislation to see whether removing or restricting the privilege can be justified. 
Warnings
287	The Privilege Against Self-Incrimination discussion paper proposed that when a government official acting under a statutory authority is seeking information from a person who may have a claim to the privilege, the official should be required to warn that person of his or her right to claim the privilege. 
288	Commentators were concerned that this requirement would effectively stultify the information-gathering powers. Commentators also pointed to the difficulties facing officials who must assess the validity of claims for the privilege, and to the lack of any practical way of obtaining quick judicial rulings. The Law Commission is convinced by these arguments and does not now recommend imposing a duty on investigating officers to warn of the right to claim the privilege.
Discretion as to incrimination under foreign law
289	The Law Commission was originally opposed to extending the privilege against self-incrimination to self-incrimination under foreign law. However, it has been persuaded by the reasoning of the Privy Council in Brannigan v Davison [1997] 1 NZLR 140, that a judicial discretion should be available to excuse a witness from testifying if it would be unreasonable to force the person to give evidence that may incriminate him or her under foreign law. Section 62 creates such a discretion, which applies when there is the possibility of imprisonment, or corporal or capital punishment under foreign law. As with s 61, spouses and corporations are excluded from the privilege. The discretion will be available in pre-trial situations, where the person concerned has not yet become a witness.
Privilege against self-incrimination in court proceedings
290	Section 63 is a procedural reform intended to promote a witness’s awareness of the availability of the privilege, and to provide an incentive for a witness to disclose relevant information rather than refuse to answer a potentially incriminating question. It follows the approach in s 128 of the Evidence Act 1995 (Aust), which requires the judge to give a witness who agrees to make self-incriminating disclosures in a proceeding a certificate of immunity. Such a certificate prevents any information obtained directly or indirectly as a result of the disclosure from being used against the witness in any other proceeding.
291	The section applies at a stage in a proceeding when it appears to the judge that a party or witness may have grounds to claim a privilege against self-incrimination. First, the section casts a duty on the judge to ensure that the witness or party is aware of the availability of this protection. Second, the judge must advise the witness or party that they need not provide the incriminating information, but if they do, the witness will be given a certificate in the terms already mentioned. The section does not protect against prosecutions for perjury. Thus if the witness provides false information, it can form the basis of a perjury prosecution. Submissions supported the immunity certificate procedure.
Replacement of privilege with respect to Anton Piller orders
292	It is recognised that the privilege against self-incrimination allows a defendant in civil proceedings to successfully resist disclosure on the basis that the defendant’s civil wrong may also have been criminal. For the reasons set out in The Privilege Against Self-Incrimination discussion paper, the Law Commission is of the general view that the policies supporting the privilege outweigh the interests of the private litigant.
293	However, the Commission believes that an Anton Piller order warrants special consideration. An Anton Piller order is made by a judge in a civil proceeding and directs the defendant to permit the plaintiff to enter its premises in order to establish the presence of certain items and, if warranted, to remove them for safekeeping. Such an order can only be granted if there is a legitimate fear that crucial evidence will be destroyed. 
294	Anton Piller orders originally raised no self-incrimination issues because the party on whom the order was served was not required to actively disclose anything. Difficulties arise from widening the order to include a further direction that the party disclose information and documents that would not necessarily be found by the search alone. Under the Code, the privilege may not be claimed for pre-existing documents; however, it could be claimed if the party is required to answer potentially self-incriminating questions. The Commission believes that a claim of privilege should not defeat the need to obtain and preserve relevant evidence in these circumstances. 
295	Section 64 provides that if a judge grants an Anton Piller order, the privilege will be replaced by protections for the defendant who makes the mandatory disclosures. Under current law, material disclosed in response to the Anton Piller order may not be used in any later criminal prosecution for an offence relating to the subject matter of the civil action in which the Anton Piller order was made. Section 64 extends that immunity to any other evidence obtained through the original disclosure. The current law also imposes an undertaking on the plaintiff not to make available to the police information acquired under an Anton Piller order. The Law Commission does not believe this is desirable because the powers of the police in investigating crime should not be unnecessarily constrained. Although the information should not be used to incriminate the defendant, it may legitimately be used in the prosecution of others.
Informers
296	The identities of police informers have customarily been protected from disclosure. The protection covers both identity and any information from which identity can readily be ascertained (Tipene v Apperly [1978] 1 NZLR 761, 767 (CA)). The Crown may withhold an informer’s identity at trial and in any preliminary proceedings. 
297	It is important to encourage people with information about the commission of crimes to offer that information to the authorities. Consequently, the Law Commission recommends an absolute privilege for the informer in s 65, subject only to the exceptions in s 71 (powers of judge to disallow privilege).
298	The Law Commission considered that the basic requirements for invoking the privilege should be:
•	the informer must have provided information to an enforcement agency, defined as either the New Zealand Police or a body with statutory responsibility for enforcing an enactment;
•	the information must relate to the possible or actual commission of an offence; and
•	the circumstances must be such that the informer had a reasonable expectation that his or her identity would be kept secret.
299	The submissions were generally in favour of an absolute privilege for informers. Several government departments questioned the definition of “enforcement agency” in s 4 (the Police of New Zealand or a body or organisation with a statutory responsibility for enforcing an enactment). They suggested including specific departments in the definition or redefining the term to include bodies with powers of investigation or inquiry under any enactment. The Law Commission thought the definition sufficiently wide to include all such bodies.
300	The Evidence (Witness Anonymity) Amendment Act 1997 has since been enacted, allowing a prosecution witness to give evidence anonymously in exceptional cases. The definition of “informer” in s 65(2)(b) excludes informers who give evidence for the prosecution, thus avoiding overlap between s 65 and the Evidence (Witness Anonymity) Amendment Act 1997.
Protection of journalists’ sources
301	The protection of journalists’ confidential sources of information is justified by the need to promote the free flow of information, a vital component of any democracy. Some limited protection is currently provided by the common law. Section 35 of the Evidence Amendment Act (No 2) 1980, which protects confidential communications generally, is also available to protect journalists’ sources. 
302	In its preliminary paper Evidence Law: Privilege, the Law Commission expressed the view that a general judicial discretion to protect confidential communications would be sufficient to protect journalists’ confidential sources (para 355). Commentators agreed that an absolute privilege was not justified. However, some suggested that an express qualified privilege for the identity of a source, which puts the onus on the person seeking to have the source revealed, was preferable to relying on a general discretion. This would give greater confidence to a source that his or her identity would not be revealed. Consequently, the Law Commission has revised its original recommendation. Section 66 creates a specific, qualified privilege for journalists’ confidential sources. 
Overriding discretion as to confidential information
303	There are many relationships of confidence that do not fit into a class covered by a specific privilege, but which, nonetheless, may deserve protection in certain circumstances. Currently, confidential communications are protected by s 35 of the Evidence Amendment Act (No 2) 1980, which gives the court a general discretion to excuse a witness from answering a question or producing a document if the public interest in having the evidence disclosed to the court is outweighed by the public interest in preserving the confidence. There is a similar common law rule (M v L, 15 October 1998, CA 248/97).
304	Section 67 would create a similar judicial discretion but with a broader application. To be excused under s 35, the information a witness seeks to withhold from the court must have been imparted to the witness within the relationship of confidence that the court seeks to protect. The proposed s 67 would allow the judge to direct that confidential information must not be disclosed by any witness. Thus, the information may be protected even when, through breach of confidence or inadvertent disclosure, it has come into the hands of a person who is not in a relationship of confidence with the confider. Further, the judge may order the witness not to disclose the information even if the witness is willing to disclose it.
305	Section 67 provides a non-exclusive list of issues for the court to consider when deciding whether to exercise its discretion. These are: 
•	the extent of the harm that is likely to be caused by the disclosure; 
•	the nature of the information and its importance to the proceeding; 
•	the nature of the proceeding; 
•	whether other means of obtaining the information are available; 
•	whether it is possible to prevent or restrict public disclosure; 
•	the sensitivity of the evidence; and
•	society’s interest in protecting the privacy of victims of sexual offences.
306	The last factor has been added since the publication of the preliminary paper. The Law Commission recognises that compelling the production of personal information about victims of sexual offences – particularly if the victim sought counselling as a result of the assault – may deter the reporting of such offences to the police and, in some cases, may force victims to choose between seeking treatment and reporting the offence. By requiring the judge to take account of society’s interest in protecting the privacy of victims of sexual offences, the section seeks to limit disclosure to those cases where the information concerned is of substantial probative value, and to prevent speculative “fishing expeditions”.64 
307	This section will be available to protect confidential communications between spouses and those in similar relationships. The Commission has decided against creating a specific privilege for spouses or re-enacting those sections that currently protect spouses from being compelled to give evidence.65  This issue is discussed further at paras 342–347.
308	The court may exercise its discretion to protect confidential information whether or not the information would also be eligible for protection by a specific privilege. This is necessary because sometimes such confidential information will not meet the precise criteria required for the privilege, and yet it may still be appropriate to protect the information.
309	The submissions showed general support for this proposal. 
Discretion as to matters of state
310	Section 68 codifies and clarifies the law on public interest immunity. It provides a general judicial discretion to protect matters of state if the public interest in disclosure is outweighed by the public interest in withholding the information. Like the general discretion to protect confidential information, it may be exercised regardless of whether the information is eligible for protection under a specific privilege.
311	The development of public interest immunity has been strongly influenced by the Official Information Act 1982, and the Code has maintained this link. “Matters of state” are defined to include all information that is sought to be protected for reasons corresponding with those set out in ss 6,7 and 9 of that Act (other than those involving personal privacy). However, the definition is not exhaustive and could include other claims outside the scope of the Act. 
312	There was general support for this provision. However, several commentators thought the provision should include more explicit guidance for the court in exercising the discretion. The Law Commission expressed a preference for a wide discretion allowing the judge to take what guidance is considered relevant from the provisions of the Official Information Act 1982 or the more general public interest immunity considerations. The Commission’s view has not changed.
313	One commentator suggested that there was no need to distinguish between protection of private confidentiality and the discretion to protect matters of state. The preliminary paper dealt with this question at paras 359–363. The Law Commission took the view that the two protections were not sufficiently similar to allow amalgamation. There are interests of specific relevance to government that would require separate consideration if amalgamation were to occur. Further, public interest immunity must be seen in light of the provisions of the Official Information Act, which have no relevance to private confidences. The Commission has not been persuaded to change its view.
314	Section 27(3) of the Crown Proceedings Act 1950 protects the Crown from having to disclose the existence of a document if:
•	either the Prime Minister certifies that disclosing its existence would be likely to prejudice the security or defence of New Zealand, the international relations of its government, or any interest protected by s 7 of the Official Information Act 1982; or
•	the Attorney-General certifies that disclosing the existence of the document is likely to prejudice the prevention, investigation, or detection of offences. 
The Commission does not consider that this special exemption from the ordinary requirements of discovery is justified. The provision is not consistent with the general principle that the court, not the Crown, is ultimately responsible for determining whether a claim to public interest immunity should be upheld. 
315	The only commentator on this issue agreed that, in the discovery and challenge process, the Crown should behave as a normal litigant. The Commission continues to recommend repealing s 27(3) of the Crown Proceedings Act 1950.
Waiver
316	Under the common law, a privilege is lost if it is voluntarily waived, either expressly or impliedly. Section 69 codifies the common law rule. The original draft of the section stated that a privilege was waived if the privilege holder disclosed the privileged information in circumstances inconsistent with a claim of confidentiality or in circumstances where it would be unfair for the privilege holder to take the benefits of disclosure while also seeking to retain the benefits of the privilege. The Law Commission has since decided that the latter circumstance is included in the former, and reference to it has been deleted from the final recommendation. 
317	Section 69(4) codifies and extends to all privileges the principle that, if a third party obtains information subject to legal professional privilege without the consent of the privilege holder, the privilege is not waived and the material is inadmissible (R v Uljee [1982] 1 NZLR 561 (CA)). 
318	The proposal in s 69 was supported by the commentators. 
Joint and successive interests in privileged material
319	Section 70 codifies the common law rule that persons who have a joint interest in the subject matter of privileged information are entitled to have access to the privileged information, to assert the privilege against third parties and to prevent disclosure of the privileged information. The principle also applies if parties share interests in the same property successively. The courts are still developing this latter doctrine, and the section contains a discretion to enable the court to discriminate in deciding what information should be passed on to a successor in title. For example, it may be appropriate for the Official Assignee to acquire information that has passed between a bankrupt and the bankrupt’s solicitor about protecting the bankrupt’s property from potential law suits. However, it would not necessarily be appropriate for the Official Assignee to access advice given to the bankrupt on how to defend proceedings in bankruptcy. 
320	One commentator suggested that s 70(1)(c) incorrectly placed the onus of establishing the privilege on the person who is asserting the privilege. However, s 70(1)(c) is concerned with procedure not onus. Another commentator suggested that the original use of the term “interested party” in subss 70(1)(c) and 70(3) was unclear. Consequently, we have substituted the term “another holder of the privilege”. Otherwise, the submissions supported this proposal.
Power of judge to disallow privilege
321	Section 71 sets out the circumstances in which the court must or may disallow a claim to privilege. Section 71(1) adopts the existing law, which excludes a claim of legal professional privilege for a communication intended to further the commission of a crime or fraud, and extends it to all privileges. Section 71 covers any communication made or any information prepared for a dishonest purpose or to enable anyone to commit what the person claiming the privilege knew, or reasonably ought to have known, is an offence. The requirement that the privilege holder must know of the offence departs from the position taken in Reg v Central Criminal Court ex parte Francis & Francis [1989] AC 346. The Law Commission agrees with those commentators who have pointed out that the effect of Francis is that no person would know if the privilege was safe or not.
322	The original draft provision gave the judge a discretion to disallow a claim of privilege in the circumstances described in s 71(1). The Law Commission now considers mandatory disallowance more appropriate where dishonesty or the commission of an offence are concerned. The judge must be satisfied that a strong prima facie case has been made out. 
323	Section 71(2) follows a line of common law cases66  that acknowledge a judicial discretion to disallow a claim of privilege if the information is necessary to enable the defendant in criminal proceedings to present an effective defence. Both the High Court of Australia (in a 3-2 split judgment) and the House of Lords have recently either overruled or declined to follow these cases (see para 253). The reasoning of each court was similar. Legal professional privilege is absolute and does not allow any exceptions. Because the law’s recognition of the privilege already encompasses a proper balancing of opposing public interests, there is no need for a further balancing exercise. 
324	The Law Commission, however, agrees with the reasoning in the dissenting judgment of Toohey J in the High Court of Australia case: that legal professional privilege is not an end in itself but exists to promote the public interest by assisting the administration of justice. Toohey J considered it paradoxical that 
“the perfect administration of justice” should accord priority to confidentiality of disclosures over the interests of a fair trial, particularly where the accused is in jeopardy in a criminal trial for a serious offence. (154) 
Section 123 of the Evidence Act 1995 (Aust) codifies the minority judgment. The Canadian Supreme Court has also held that legal professional privilege may be breached in these circumstances (Smith v Jones, 25.3.99, File No 26500).
325	A further subs (3) has been added to protect the privilege holder. If privileged information is disclosed under subs (2), such information and any information derived from it may not be used against the privilege holder in any proceeding in New Zealand.
326	The submissions supported the Law Commission’s proposals.
Orders for protection of privileged material
327	Section 72 provides the machinery for invoking a privilege or discretionary protection. 
328	No submissions were received on this section. 

12. Eligibility and compellability
competence
329	Under current law, all witnesses must be competent to give
	evidence. For children under 12, the court is obliged to test competence. The competence of any other witness may be challenged if it is at issue; for example, in the case of intellectual disability. The test for competence contains two limbs: a witness must have a sufficient level of understanding or intelligence to give a rational account of past events; and the witness must understand the nature and consequences of the oath or promise (for children, the duty to speak the truth).
330	Recent research indicates that even young children are able to give reliable evidence and that age alone cannot predict the quality of the evidence presented. Further, the current test of competence, in particular the requirement to understand the nature of a promise, does nothing to make the witness’s evidence more accurate or truthful, and often has the effect of excluding reliable evidence. In line with the policy of the Code to increase the amount of relevant evidence available to the fact-finder, the Law Commission recommends abolishing the current competence requirement. Testimony that is unhelpful because of incoherence or because of communication difficulties that cannot be overcome, may be ruled inadmissible on one of the general exclusionary grounds (s 8). A decision to exclude evidence on these grounds may be made at any time, although a pre-trial inquiry will generally be preferable. This proposal has implications for administering oaths, affirmations or declarations.
331	The proposals to abolish both the competence requirement and the duty to test children under 12 were discussed in The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26, 1996) and were strongly supported by a clear majority of commentators.
332	Some reviewers, however, suggested that the judge should retain some discretion to test for competence in appropriate cases and make such a decision pre-trial. This was the view of one group of practitioners:
[We] agree that the evidence of children should not be ruled inadmissible solely on the grounds of a failure to make and understand a promise as is required under the current competence text. [We] suggest that it be assumed that all witnesses, regardless of age or disability, are competent subject to the discretion of the Judge to test competence or for counsel to seek to have competence tested. If competence is potentially an issue, it should ideally be dealt with by way of pre-trial application under s 344A of the Crimes Act 1961. To make this possible, of course, defence counsel requires full discovery as early in the proceedings as possible.
333	The Law Commission considers that retaining a discretion to test for “competence” (in the sense of testing for understanding the meaning and implications of promising to tell the truth) will not result in any significant change from the current position. The Commission’s concern, as the above submission notes, is that a witness’s mere failure to articulate the nature of a promise may result in crucial evidence being unavailable to the court. Whether or not a test of this nature is performed as part of duty or in an exercise of discretion, the Law Commission remains of the view that the test is not appropriate or necessary. In situations where the witness gives incoherent evidence, that evidence may be excluded under s 8.
334	In order to avoid any future admissibility arguments based on “competence”, the Law Commission has avoided using the term in the Code. The Code uses the phrase “eligibility” and the general rule in s 73 deems all people eligible (including defendants in criminal cases) and all eligible people compellable (subject to some specific exceptions).
Eligibility of judges, juries and counsel
335	There is limited case law dealing with the eligibility of judges or jurors to give evidence in a proceeding in which they are acting as either judge or juror. However, the Law Commission is of the view that existing practice and the principles of natural justice make it axiomatic that judges and jurors should not also give evidence in that proceeding.
336	The proposed rule in the Code (s 74) also provides that any person acting as counsel in a proceeding is ineligible to give evidence in that proceeding without leave. This addition to the rule was suggested during the consultative seminar programme and the Law Commission supports it.
compellability
337	The Law Commission recommends only two provisions that deal with specific exceptions to the general rule that all witnesses are compellable. Section 75 provides that a defendant in criminal proceedings is not a compellable witness for either the prosecution or the defence, and is not compellable to give evidence for or against a co‑associated defendant, unless the defendant has already been tried or is being tried separately. Section 76 lists a number of individuals (including the Sovereign, Heads of State and judges in their judicial capacity) who are not compellable.
Defendants in criminal proceedings
338	The Law Commission does not propose to change the basic rule that a defendant is not a compellable witness.67  This is in keeping with the conclusions reached in the Commission’s discussion paper, The Privilege Against Self-Incrimination, and s 25(d) of the New Zealand Bill of Rights Act 1990, which confirms the right of everyone charged with an offence “not to be compelled to be a witness or to confess guilt”.
339	Between co-defendants, the principle of non-compellability conflicts with both the principle of admissibility of relevant evidence as well as the principle that defendants not be unnecessarily hindered in presenting their defence.
340	The Code rule dealing with the compellability of co-defendants uses the term “associated defendant”, a term also used in the Evidence Act 1995 (Aust). An “associated defendant” is a person who has been charged with an offence that is the same as or related to the offence for which a defendant in a criminal proceeding is being prosecuted. Associated defendants may be tried jointly or separately. The term “associated defendant” is therefore wider than the term “co-defendant”.
341	The Code provides that an “associated defendant” who is tried separately is compellable for either an associated defendant or the prosecution, extending the approach under s 5(7) of the Evidence Act 1908. An associated defendant is also a compellable witness if the proceeding against that associated defendant has been determined (s 75(2)). The Code defines when a proceeding is determined (s 75(3)) and includes the situation where the associated defendant has been found guilty (currently not covered under s 5(7)) and sentenced.
Removal of the spousal non-compellability rule
342	The effect of the general compellability rule is to abolish the existing law of spousal non-compellability. The Law Commission recommends abolition because it considers that the spousal non-compellability rule creates an anomalous exception. The Commission is of the view that any rule that offers greater protection to a particular group of people should also be extended to people in relationships of a similar kind. The Commission therefore initially proposed extending the existing rule to other de facto or family relationships. The boundaries of such an extension were, however, difficult to logically establish, and in the words of one submission this “[left] the [undesirable] impression that the giving of evidence is discretionary”. The other logical alternative was the complete abolition of the spousal non‑compellability rule.
343	The recommendation to abolish the rule has met strong opposition from some practitioners but the majority of commentators supported the move and agreed with the Law Commission’s view that spousal non-compellability cannot be supported as a matter of logic or policy.68 
Cases of domestic violence
344	Some submissions expressed concern about the effect of abolishing the spousal non-compellability rule on victims of domestic violence. They argued that a woman should not have to testify against her violent partner if doing so would put her at risk of retaliatory violence. The Commission accepted the validity of this concern and sought to meet it by giving judges a discretion to excuse a witness if the judge was not satisfied that the witness could be protected from retaliation. Other commentators argued that an abused victim should not be required to argue in front of the alleged abuser that giving evidence meant exposure to further violence.
345	The Law Commission’s initial proposal of a judicial discretion to excuse women victims of domestic violence was criticised during the consultative seminar series. Many practitioners were of the view that the proper development of the law should allow admission of such witness’s out-of-court statements. Other commentators were of the view that such a discretionary rule should in fairness be extended to all frightened witnesses, not just to female victims of domestic violence. This would, however, potentially allow a large number of crucial prosecution witnesses to be excused, which is clearly undesirable.
346	The issue of the compellability of victims of domestic violence, whether married to the defendant or not, has caused the Law Commission considerable difficulty. It involves a conflict between the public interest in prosecuting perpetrators of domestic violence and the desire to protect victims (who testify) from retaliatory violence stemming from a prosecution.
347	What seems clear is that the competing public interests inherent in prosecuting domestic violence require all those involved – the prosecution, the judiciary, community groups and government agencies – to understand the difficult policy considerations that arise, and to develop an agreed practice capable of meeting the exigencies of each case. The Law Commission is therefore of the view that it would be premature for the Code to include special rules dealing with the compellability of victims of domestic violence.
Admissibility of jury deliberations
348	There are clearly sound reasons for limiting the admissibility of evidence of jury deliberations. Finality of verdicts, protecting jurors from pressure and encouraging full and frank discussion in the jury room all require that what goes on in the course of jury deliberation should be protected from disclosure. However, an overly strict application of such a rule may itself result in injustice.
349	Under the current law, the admissibility of evidence about juror impropriety hinges on whether the impropriety occurred within or outside the jury room. The Commission does not consider that such a distinction can sensibly be maintained. Some kinds of intimidation during deliberation are unacceptable and would amount to breach of a juror’s duty wherever they may occur; and evidence of this kind of misconduct should be admissible. 
350	The general rule in the Code is therefore that evidence of jury deliberations about the substance of the case is inadmissible. The exception allows evidence of juror impropriety to be given that, for example, a juror was unqualified or incapable of serving as a juror, or was in breach of his or her duty as a juror – even if giving that evidence necessarily means disclosing some of the content of the jury’s deliberations (s 77).
13. Oaths and affirmations
child witnesses
351	The Law Commission’s recommendation to abolish the
	competence requirement and the duty to test the competence of children under the age of 12 (a test that includes an assessment of their understanding of the nature of a promise) has consequential effects on the Oaths and Declarations Act 1957.
352	The Law Commission had concluded that an inquiry into a child’s understanding of the nature of a promise does not assist in assessing reliability. It was therefore persuaded by a number of commentators that it makes little sense to allow a child to promise to tell the truth when no inquiry may be made into what that promise means for them. In its discussion paper, The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26, 1996), the Commission had proposed an alternative approach of requiring all children under the age of 12 to give “unsworn” evidence (that is, without swearing an oath or making a promise to tell the truth). This alternative proposal received strong support in the submissions. 
353	In response to the concern about the fact-finder’s prejudice if no promise is made, one commentator suggested that only children under six should give unsworn evidence. The Law Commission was initially attracted to this idea, but concluded that introducing another age-related restriction in the Code unnecessarily complicated the scheme in other ways. The Commission now recommends that all children under the age of 12 will give unsworn evidence, but that evidence will be received as if given on oath (s 78(2)). This approach is also viewed as desirable for any other witness who, for whatever reason, may give unsworn evidence with the leave of the judge. This may be appropriate in the case of intellectually disabled witnesses (s 78(3)). 
354	While a judge is not required to, and should not, make an inquiry into a child’s understanding of what it means to tell the truth, the Code provides that the judge should still inform the child witness (or any witness who does not take an oath or make an affirmation) of the importance of telling the truth (s 78(2) and (3)). This proposal responds to a concern that the solemnity of the occasion be recognised. One commentator stated his concern in this way:
The administration of an oath or the making of an affirmation does not guarantee the truth or accuracy of evidence, but they do bring home to witnesses the seriousness of the occasion, calling for more than a merely “social” regard for truth in their testimony.
355	A number of submissions noted that research indicates children may more easily understand the concept of not telling lies rather than the concept of telling the truth. The Law Commission accepts the validity of this research and has included a reference to “not telling lies”. 
356	One amendment that results from introducing this provision will be the repeal of s 13 of the Oaths and Declarations Act 1957, which governs the current approach for children under 12.
357	It is intended that abolishing the duty to test the competence of children under 12 (as well as any other witness) will prevent counsel questioning the witness on whether he or she understands the nature or effect of a promise to tell the truth. To allow such questions would bring back the competence test by a side door. The Commission is of the view that a witness’s evidence may be tested in terms of truthfulness or accuracy without requiring the witness to explain the nature or effect of a promise.
Interpreters
358	The Code requires interpreters (defined in the Code as those people who offer “communication assistance”) to take an oath or make an affirmation (s 79). The form of such an oath or affirmation will be provided in regulations.
a secular promise to tell the truth?
359	In a research paper, the Law Commission considered the arguments for abolishing the religious aspects of the oath. Many people, including a number of church groups, have called for an end to the religious connotation of the oath. The overriding theme of their arguments is that a matter as important and private as a person’s relationship with God should not be part of the secular process of litigation. Arguments in favour of abolishing the religious oath have also found favour with several law reform bodies.69  Earlier this decade there was a movement for reform along these lines in New Zealand, which, however, did not progress to the stage of amending legislation.70 
360	The Law Commission’s Mäori Committee were, however, of the view that the alienation that Mäori feel in the criminal justice system would be exacerbated by the failure to acknowledge the importance of spirituality in Mäori life. The Mäori Committee considered that this is of such significance to Mäori that the religious oath should be retained as a general practice. Because the issue is contentious and resolving it is not necessary for the adoption of the Code as a whole, the Commission has preferred, for the time being, to recommend retaining the status quo.
14. Support, communication assistance and views
support for witnesses
361	The Law Commission considers that complainants in criminal
	proceedings should be entitled to have a person near them to provide support while they give evidence (s 80(1)). In many cases, especially when young children are involved, the closeness of a person they trust (whether the children give evidence in the ordinary way (s 83) or in an alternative way (s 105)), will help the complainant to give complete and therefore more helpful evidence. The Commission also recommends that any witness (including a defendant in a criminal proceeding who testifies) may apply to have a support person near them while giving evidence (s 80(2)). This proposal received strong approval from commentators.
362	A complainant should not, however, have an absolute right to a specific support person, and the judge should have a discretion to prevent a particular person giving support to a witness – for example, the very presence of a well-known person as a support person may influence the jury’s assessment of the witness’s truthfulness (s 80(1)).
363	Section 80(4) puts the conduct of a support person and that of the person receiving support under the judge’s control. It is expected that the support person will not speak to the witness while the witness is giving evidence. Any departures from normal conduct (such as a child wishing to sit on the knee of a support person) would require the leave of the judge.
364	In response to submissions, s 80(3) requires the name of the support person to be disclosed to all other parties to the proceedings. This should happen as soon as practicable after the witness chooses a support person; but in any particular case (for example, if there is a possibility of intimidation when the person is supporting an anonymous witness), the judge may rule against the need for such disclosure.
365	One submission stressed that in choosing a support person for children, the child’s wishes and the best interests of the child should be taken into account. The Law Commission agrees but considers that legislative expression is unnecessary.
366	The Law Commission also recommends (in s 80(2)) that any witness may apply to the judge to have more than one support person near them while giving evidence (whether in the ordinary way or in an alternative way).
367	The possibility of a witness having more than one support person provoked a mixed response. A number of commentators did not favour the possibility. Many of those working with children, however, were strongly in favour of such a possibility, as were the Law Commission’s Mäori Committee and the te ao Mäori consultation group. The Law Commission recommends that both complainants in criminal cases and any other witness may apply to have more than one support person. 
Communication assistance
368	Communication assistance in the form of interpretation to and from English is already available in New Zealand courts. Under s 25(g) of the New Zealand Bill of Rights Act 1990, such assistance is a right for defendants in criminal cases. The Law Commission considers that any criminal defendant who is unable to sufficiently understand the proceedings should be entitled to interpretation of the proceedings, including any relevant preliminary matters or documents, without charge (s 81(1)). In the case of other witnesses, an interpreter should be available to assist communication with the court, but the party calling the witness would normally meet the cost of this service. This will not affect the provisions of the Mäori Language Act 1987, which entitle any witness to give evidence in Mäori (s 81(8)).
369	Section 81, which incorporates a wide definition of “communication assistance” (s 4), received unanimous support from commentators. Many community groups, including the IHC, acknowledged the appropriateness of an approach that validates the use of changing technology while recognising individual needs:
Difficulties will be avoided if those involved are prepared to be flexible and accommodate the varying needs of the people concerned. This could mean accepting the use of a communication board, which has a variety of symbols allowing someone who is not able to speak or write to communicate, others will use computers, and others will use aids in combination with a support person. IHC would encourage officials to view this as a necessary means of communication, rather than a risk to court procedure.
The use of intermediaries
370	In The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26, 1996), the Law Commission proposed that intermediaries could be appointed to help some witnesses to give evidence. The proposal provided that the court could, if necessary, appoint an intermediary to explain questions put to a witness. The proposal was in part a development of the existing provision in s 23E(4) of the Evidence Act 1908 and also drew on the legislation and reform proposals in other common law jurisdictions (paras 167–169).
371	There was overwhelming support for this proposal from community groups and relevant government agencies, with a number describing the proposal as “the best in the paper”. Some practitioners also supported the use of intermediaries in appropriate cases:
This is a concept new to me. Every judge has encountered situations where a witness has difficulty in understanding questions or in giving understandable answers. Usually, with patient handling, the matter can be resolved, but I accept there may well be more serious problems with some witnesses of limited intelligence, or with comprehension or communication difficulties, and I would support a discretion to appoint an intermediary for them and for young children if necessary. 
372	Most of the practitioners who strongly disagreed with the proposal considered that proper training would enable lawyers and judges to communicate with any witness. Community groups, however, emphasised that in their opinion many lawyers do not have the necessary communication skills.
373	One commentator also referred us to the experience of “facilitated” communicators in the United States and Australia, arguing that:
[the] process has been found to be problematic, primarily because it relies so heavily on the “facilitating” intermediary and because it has not stood up to scientific scrutiny in terms of demonstrating that the source of the “facilitated” communication is the disabled person. . . . [I]ts use has been attempted in some courts in the United States but, as it has been found not to have the support of the mainstream scientific and professional community, some jurisdictions there have now outlawed it.71 
374	Given the divided views within the profession and the critical studies from the United States, the Law Commission considered that it is not currently appropriate to recommend the use of intermediaries.
views
375	The Law Commission drafted a research paper dealing with the issue of demonstrations, inspections and visual aids, in which it concluded that the Code needed only to provide for the law relating to inspections (views). The manner of giving evidence, such as the use of visual aids, can be appropriately dealt with under the court’s inherent powers. Demonstrations and reconstructions will be subject to the relevance rule and the general exclusion (s 8), allowing a principled yet flexible approach. However, the Commission considers that the current law on inspections (views) should be clarified and improved.
376	At present, s 28 of the Juries Act 1981, at least in part, governs the ordering of views. It provides:
	Court may order a view
At any time during a trial, whether or not the evidence for any or all of the parties has been closed, the Court may, on the application of any party or of its own motion, order a view if the Court considers that that course is proper or necessary in the interests of justice.
377	There is conflicting case law on whether the fact-finder (judge or jury) needs to be accompanied by the parties when undertaking a view, and whether the judge needs to be present when the jury undertakes a view.72 
378	Since views are part of the process of receiving evidence at trial, the Law Commission considers that all participants should be entitled to be present, including the judge, the jury, the parties and their counsel. All current exceptions to this principle should apply – for instance, it should be possible to exclude the defendant under s 376 of the Crimes Act 1961. The proposed section (s 82) clarifies when a view may be held, who is entitled to be present and the use to which information obtained from a view may be put.
379	The Law Commission recommends repealing s 28 of the Juries Act 1981 and replacing it with s 82 of the Code.
15. Questioning of witnesses
INTRODUCTION
380	The central focus of evidence law is a trial at which
	witnesses are questioned by the parties to the proceeding. Most issues about the admissibility of evidence arise in the context of questioning witnesses. The Law Commission considers that the Code should contain provisions that govern the most important aspects of the way in which witnesses are questioned at a proceeding.
381	A number of commentators have expressed the view that some of the provisions contained in this Subpart do not belong in an evidence code. They argued that many of the topics dealt with are not really matters of evidence law, and in any case could safely be left to the court in exercising its inherent power to regulate its procedure (s 11 of the Code). To codify practices that are currently unproblematic may invite unnecessary argument.
382	To an extent, the Law Commission accepts these arguments, and some of the original proposals no longer appear in the Code. Deciding the proper scope of an evidence code has been a constant concern for the Commission from the beginning of its reference.
383	In the Law Commission’s view, the final recommendations in this Subpart are properly a part of the Code. From a general perspective, the rules governing the questioning of witnesses provide the framework in which the admissibility rules in the Code operate. But there are two more reasons, with both of which the majority of submissions agreed. First, the Subpart will be available as a guide to less experienced practitioners and persons who are not legally trained. While some of the subjects codified may seem obvious to experienced counsel, they may not be so to a more junior lawyer. Second, the Subpart contains provisions that clarify existing controversies in the law. The submissions received by the Commission, even from the commentators of the greatest experience, revealed some very real differences in their understanding of what the law is and what the law should be in this area. 
384	While the provisions in this Subpart go beyond admissibility issues, they are directly concerned with the process of proof. The Law Commission’s recommendations are also supported by the majority of commentators who agreed that the topics in this Subpart should be codified.
the code provisions
Ordinary way of giving evidence
385	Most New Zealanders think of a trial in terms of witnesses testifying in the courtroom. This reflects the principle of “orality”, which is codified in s 83. 
386	Section 83 provides that, in the ordinary case, witnesses will give evidence in the presence of the judge, the jury, parties to the proceedings (including the defendant in a criminal proceeding) and members of the public. As with all Code provisions, s 5(1) of the Code means that s 83 is subject to the express provisions of any other Act (eg, s 376 Crimes Act 1961, which provides for the absence of the defendant in some circumstances).
387	The ordinary way of giving evidence set out in s 83 contrasts with the “alternative ways” of giving evidence that are governed by ss 102–106.
Examination of witnesses
388	Section 84 confirms the parties’ rights to examine, cross-examine, and re-examine the witnesses at a trial, and also sets out the usual order in which a witness gives evidence: evidence in chief, cross-examination and re-examination. The provision is expressly subject to a contrary direction by the judge to cater for unusual situations. 
Unacceptable questions
389	One justification for the adversary system is that a fair result will be achieved if the parties are given substantial freedom to choose the method of presenting their respective cases to the fact-finder. However, occasions will inevitably arise when the judge must exercise control over the way the parties present their evidence or question witnesses. Section 85 recognises this necessity. The section replaces and extends s 14 of the Evidence Act 1908. 
390	There was general support for a provision such as s 85, although issue was taken with particular terms employed in the section as originally proposed.73  For instance, the concept of an “unfair” question was criticised as being too uncertain. In the Law Commission’s view, however, it is desirable to retain the flexibility inherent in the concept of unfairness. Indeed it is arguable that the other terms in the list appearing in s 85(1) are specific facets of the overall concept of unfairness. The Commission remains of the view that the proposed s 85(1) will offer guidance to trial participants without restricting the judge’s power to protect witnesses and screen out unacceptable questions.
391	Much of s 85(2) is new, although s 85(2)(e) reflects a practice note ([1985] 1 NZLR 386).74  The considerations set out in s 85(2) acknowledge that what is an acceptable question for one witness may not be for another.
Restriction of publication
392	Section 86 is essentially a re‑enactment of s 15 of the Evidence Act 1908. The Law Commission considers that an express provision is preferable to leaving such matters to the court to deal with in exercising its inherent powers.
Privacy as to witness’s precise address
393	Section 23AA of the Evidence Act 1908 (enacted in 1986) made disclosing the address and occupation of a complainant during the trial of a sexual offence case the exception rather than the rule. Section 23AA was a response to the concern expressed by some complainants that having to disclose their address in evidence was, in most instances, an unnecessary invasion of their privacy and compromised their safety.
394	The Law Commission considers that the same reasoning applies to all witnesses, and that in most cases a witness’s address will be irrelevant to the facts in issue. Under s 87, no question or statement about the particulars of a witness’s address will be permissible unless the judge grants leave on the ground that the information is of such direct relevance that to exclude it would be contrary to the interests of justice. 
395	Disclosure in the courtroom is, of course, a different matter from pre-trial disclosure to other parties to the proceeding. The effect of the definition of “witness” (s 4) is that s 87 only operates to prevent disclosure in the course of a hearing.
Restrictions on disclosure of complainants’ occupations in sexual cases
396	With minor drafting changes, s 88 re-enacts s 23AA of the Evidence Act 1908, as it relates to non-disclosure of a complainant’s occupation in a sexual case. The issue of the complainant’s address, also dealt with by s 23AA, is subsumed in s 87.
Leading questions in examination in chief and re-examination
397	It is generally considered that evidence is more reliable if witnesses testify in their own words, rather than agree with what counsel’s questions suggest. Restrictions on the use of leading questions in examination in chief are therefore a common feature of evidence codes, such as the Evidence Act 1995 (Aust) (s 37) and the United States Federal Rules of Evidence (Rule 611(c)). Section 89(a) and (b) codify the current law that prohibits leading questions in examination in chief except about undisputed matters or with consent. Paragraph (c), which gives the judge a discretion to allow a leading question, met with criticism owing to its vagueness. While accepting that the desire for certainty and predictability is an important justification for codification, the Commission considers that it is undesirable to attempt to list every possible occasion when the general prohibition should not apply. As the commentary to s 89 states, it is expected that the discretion will be used sparingly.
Use of inadmissible statements prohibited
398	A few authorities have permitted inadmissible documents to be used in examining a witness, usually to refresh the witness’s memory.75  Examining counsel hands a document to the witness, who is asked to read it silently before the question is repeated. The witness’s testimony is then permitted on the basis that the actual evidence is the witness’s oral testimony, and the fact-finder never sees the inadmissible document. This practice is difficult to support. Most commentators therefore agreed with the Commission’s proposal in s 90 that an inadmissible statement should never be used for the purpose of examining a witness.
399	Section 90(2) is intended to discourage the current practice of counsel handing a witness a document and asking the witness to read it silently without disclosing the contents to any other party. Under the Code, if a witness consults a document in the course of testifying, the document must be shown to all other parties.
Editing of inadmissible statements
400	Section 91 permits the inadmissible portions of a statement to be edited out, a practice already recognised in particular contexts (eg, s 23E(2) Evidence Act 1908). The discretion contained in s 91 would retain the inherent power of a trial judge in a criminal case to edit out portions of a defendant’s statement that unduly prejudice a co-defendant.76 
Cross-examination duties
401	A substantial body of law has grown up around the requirement of counsel to “put the case” to a witness under cross-examination. It has received acknowledgement in Rule 441(K) of the High Court Rules. The requirement is designed to give a witness fair opportunity to reply to contradictory evidence that the questioner intends to call later, and to do this in a way that avoids the unnecessary disruption or inconvenience of having to recall a witness after the witness has departed. The requirement also ensures that the court receives all the available evidence on a disputed issue.
402	In keeping with the general approach advocated by some commentators, s 92(1) imposes a wider duty than is expressed in the High Court Rule 441(K). That Rule imposes the duty only if the court is asked to disbelieve the witness. Section 92(1) imposes the duty whenever a matter of contradiction arises. This, of course, may occur even when a witness is doing his or her best to tell the truth.
403	There was concern that codifying the requirement in s 92 would unnecessarily lengthen cross-examinations, as counsel sought to comply with the duty to “put the case”. Limiting the duty to situations where “the witness or the party who called the witness may be unaware of the cross-examining party’s case” should allay such concerns. The modern expansion of pre-trial discovery in both civil and criminal cases and the practice of exchanging briefs in civil proceedings means that often the party who called the witness will be well aware of the contradictory evidence that the cross-examining party will later call as part of its case. The party who calls the witness should ensure that the witness deals with such evidence in examination in chief.
404	The Law Commission expects that s 92 will result in fewer instances of the sort of unnecessary, overcautious cross-examinations that occur at present to ensure compliance with a common law rule that is of uncertain scope and varying application.
405	Among the uncertainties existing at present is the extent of potential remedies for breach of the duty. Not all practitioners seem to be aware of the variety of powers some judges have invoked to deal with a failure by counsel to put the case. The list of available remedies in s 92(2) should meet the problem one group of commentators identified, namely that these remedies are at present rarely exercised against the defence. Once these remedies are codified, all parties will be aware of the potential consequences of failing to put one’s case when cross-examining witnesses called by the opposing side. 
406	Subsection 92(2)(d) is purposefully broad, giving the judge power to make any order considered just. The Law Commission considers that this residual power is necessary – for instance, in the rare case where an order declaring a mistrial is justified. As with other discretions in the Code, this residual power should be exercised in a manner consistent with the purpose and principles of the Code (s 10).
Cross-examination in civil proceedings
407	The ability to ask leading questions is a central feature of cross-examination. Unlike examination in chief, cross-examination usually involves questioning a witness who is not predisposed to assist the case of the cross-examining party. There is, therefore, less likelihood that the witness will give the answer suggested by the leading question.
408	However, there may be occasions when a witness is eager to assist the cross-examining party. In such a case it may be argued that the court should have power to limit the ability to obtain compliant answers by asking leading questions in cross-examination.
409	There are other examples supporting the proposition that a judge should possess a general power to limit the extent to which parties may ask leading questions of witnesses called by another party. In multiple-party proceedings, for example, little purpose is served by repetitive cross-examination on behalf of parties who share a common interest.
410	These considerations led the Law Commission to follow the example of some jurisdictions in proposing that judges in both civil and criminal proceedings should have the power to limit the extent to which leading questions may be asked of compliant witnesses in cross-examination.77  The proposal met with criticism from commentators who argued that the right of co-defendants in a criminal proceeding to elicit favourable responses from one another should not be taken away. The final recommendation responds to that criticism by allowing the judge to limit leading questions in civil cases only – s 93.
Cross-examination by party of own witness
411	Just as there will be occasions when a witness is predisposed to assist the party who is cross-examining that witness, a party may sometimes call as a witness someone who does not support that party’s case. As long as the witness’s testimony is not influenced by animosity, the law has traditionally required the examination in chief to be conducted without resorting to leading questions. When, however, the witness displays a reluctance or refuses to tell the truth, the law permits a party to cross-examine its own witness if the court determines that the witness is “hostile” to the case of the examining party. Section 94 codifies the law in this respect. 
412	The definition of “hostile” in the Code (s 4) follows the common law in requiring hostility to be manifest in both the content of the evidence and the attitude of the person who gives it. The Code’s definition also extends the common law approach in some respects. A number of commentators were of the view that inconsistencies in applying the rule have arisen. For example, some judges may not consider a witness to be hostile if he or she gives evidence that is inconsistent with a previous statement, whereas others will. In defining “hostile”, the Commission has concluded that the latter approach better meets with the objective of making more evidence available to the fact-finder. 
413	Current case law indicates that the prosecution should not call a witness known to be hostile for the sole purpose of introducing a previous inconsistent statement that is inadmissible as evidence of the truth of the facts stated, or for the purpose of introducing otherwise inadmissible hearsay.78  Under the Code, previous statements of a testifying witness will be admissible to prove the truth of their contents and reliable hearsay evidence will usually be admissible. Thus one of the justifications for restricting the cross-examination of prosecution witnesses who are known to be hostile will no longer be valid. Section 94 does, however, preserve judicial control over the questioning of hostile witnesses – for example, to limit other forms of inappropriate questioning of witnesses who have shown hostility pre-trial.
Restrictions on cross-examination by unrepresented party
414	At present, an unrepresented defendant in sexual cases may not personally cross-examine a child or mentally handicapped complainant (s 23F of the Evidence Act 1908). In such cases, the court appoints another person to put the defendant’s questions to the complainant. The Law Commission considered that in other cases also it would help reduce stress for the witness, and therefore improve the quality of the evidence, if the defendant or opposing party did not personally cross-examine the witness.
415	All of the submissions received supported the operation of the current section and favoured extending it to all sexual complainants regardless of age. Beyond that, views differed on how far the existing rule should be extended. In particular, some commentators were concerned with the practical difficulties of appointing another person to take on the role of cross‑examiner. One commentator, for example, recommended appointing an amicus when there is an unrepresented defendant and a child complainant. Other practitioners favoured a discretionary rather than an absolute bar in the case of complainants.
416	Some practitioners argued, for example, that:
The right to confrontation is fundamental to our system of justice. However, [we are] of the view that that right can be legitimately fettered where a defendant wishes to personally cross-examine a complainant. If a defendant is unrepresented and wishes to cross-examine a complainant, the presiding Judge should have the discretion to refuse to allow this and appoint counsel as amicus curiae to assist. There will be occasions when witnesses other than complainants may be reluctant to give evidence knowing the defendant may cross-examine them. Prosecutors will need to be alert to such matters in order to make the necessary application to the presiding Judge.
417	Most community groups supported extending the current bar in a number of other circumstances:
We would advocate that there should be a bar on personal cross-examination by an unrepresented party in more circumstances . . .  . We do not understand the wisdom in distinguishing between physical abuse and sexual abuse cases of children. The issue is one of power over the complainant – this is equally problematic for children who have been physically abused by someone they know. We believe that children should not be cross-examined by the defendant in cases when they have been physically abused. The [current] cut-off of 17 years in sexual cases is inappropriate. Women who have been raped should not be cross-examined by their attacker.
418	The Law Commission recommends an absolute bar on personal cross-examination by unrepresented defendants in the case of:
•	all complainants in sexual cases;
•	all complainants in cases of domestic violence (as defined in the Domestic Violence Act 1995); or harassment (as defined in the Harassment Act 1997); and
•	all child witnesses in sexual and domestic violence cases.
All other witnesses should be able to apply not to be personally cross-examined, or the court should be able to make an order of its own initiative. These proposals, contained in s 95, are consistent with developments overseas.79  
419	While the Law Commission agrees that appointing an amicus to ask questions in the place of an unrepresented defendant is the most appropriate solution, it considers it essential that the rule remain flexible to deal with differing circumstances. Section 95(5) therefore allows the judge to ask the questions on behalf of the unrepresented party, or to appoint an appropriate person for the purpose. It also empowers the judge to rephrase a question (for example, one that is unacceptable (under s 85)) or to refuse to ask (or to allow the person appointed to ask) a question (such as a question prohibited by s 46 of the Code).
Cross-examination on previous statements by witnesses
420	Codifying the law governing cross-examination of a witness on his or her previous statement has been a difficult process. A major problem has been the variation in practice in different courts and different regions throughout New Zealand. In the consultative meetings held with practitioners in the five main centres, a host of widely differing views were expressed; proponents were usually adamant that their particular view reflected well-established law and correct practice.
421	Sections 10 and 11 of the Evidence Act 1908 currently govern this area. While their interpretation has given rise to some controversies, the Law Commission considers that the basic thrust of these provisions is sound. Section 10 of the 1908 Act enshrined a major exception to the common law “collateral issues rule”. That rule prohibited evidence that had the sole purpose of contradicting an answer given by a witness in response to a challenge to the witness’s credibility during cross-examination (see paras 160–161). If a witness has made a previous statement inconsistent with the witness’s testimony, but does not admit making it, s 10 of the 1908 Act permits the cross-examiner to prove that the witness had actually made the previous inconsistent statement. 
422	Section 11 of the 1908 Act deals solely with written statements. It abrogates a common law rule (Queen’s Case (1820) 2 BROD & B 284; 129 ER 976) and permits cross-examination about any previous statement by the witness, whether or not it is inconsistent with the witness’s testimony. The statement need not be shown to the witness, unless it is used to contradict the witness.
423	Section 96 redrafts ss 10 and 11 of the 1908 Act in such a way as to incorporate the majority view of the legal profession and commentators on the best directions for reform. 
424	Section 96(1) preserves the rule stated in the first part of s 11 of the 1908 Act, which allows a party to cross-examine a witness on a previous statement without showing it to the witness, but requires that sufficient information about the statement be given to allow the witness to identify it. There was general support for this provision as being fair to the witness and in keeping with current practice.
425	Section 96(2) is the central restatement of the requirement imposed on a cross-examiner who seeks to use a witness’s previous inconsistent statements to contradict the witness’s testimony. It provides that if a party wishes to prove that the witness made a statement that the witness does not admit making, the party must disclose the statement to the witness; the party must also give the witness a chance to deny making it or to explain any inconsistencies with the witness’s testimony.
426	Section 96(3) preserves a defendant’s position with regard to a non-suit, a no‑case application and the order of addressing the jury if the defendant uses a document in cross-examining a witness without offering it in evidence.
Re-examination
427	Arguments can be given both for and against codifying the scope of re-examination. During the consultation process, it became apparent that New Zealand judges vary substantially in the scope of re-examination they permitted. Codification should promote a more uniform practice.
428	Section 97 aims to put a workable limit on the scope of re-examination. A party should normally see examination in chief as the principal means of placing before the court the relevant information that a witness can give. Matters arising out of cross-examination, including qualifications the witness has been led to make on his or her evidence in chief, are a valid focus for re-examination. But a party should be discouraged from intentionally leaving until re-examination evidence that should have been led in examination in chief. Section 97 requires a party to obtain leave to raise new matters in re-examination. Leave is likely to be granted if, for example, a question has not been asked in examination in chief because of counsel’s oversight, provided that it does not prejudice another party.
429	The Law Commission was alerted during the consultation process to the fact that judges also vary in the extent to which they permit further cross-examination following re-examination, if they permit it at all. Section 97(2) gives a right to further cross-examination limited to any new matters raised in re-examination. Just as re-examination should not be treated as an opportunity to ask questions which counsel may wish to have asked in examination in chief, so cross-examination following re-examination should not be seen as an opportunity to remedy inadequate cross-examination.
Further evidence after closure of case
430	Normally, the plaintiff or prosecution is not permitted to call further evidence (“rebuttal evidence”) after closing their case. Although the same general rule applies to defendants, it is rarely a source of dispute in that context, because usually the close of the defendant’s case will mark the end of all the evidence in the proceeding.
431	The policies behind the general rule prohibiting rebuttal evidence are:
(a)	The rule avoids giving undue emphasis, because it is heard last, to evidence in rebuttal.
(b)	Allowing rebuttal evidence prolongs trials and encourages “surprise” evidence.
(c)	In criminal cases, the defendant is entitled to conduct the defence in reliance on the “case to meet” established by prosecution evidence. It would be unfair to allow the prosecution to alter the nature and scope of the case against a defendant mid‑trial.
432	The Law Commission agrees with the general prohibition on a party offering further evidence after closing its case. Section 98(1) reflects this view. The section goes on, however, to permit rebuttal evidence with leave of the judge. This is an acknowledgement of the fact that there could be no absolute rule against rebuttal evidence.
433	It is clear that in civil cases a judge will usually exercise his or her discretion to permit a plaintiff to offer rebuttal evidence unless this would be in some way unfair to the defendant. Such unfairness might exist if the defendant could no longer call a previously available witness to meet the new evidence offered by the plaintiff. This thinking is embodied in s 98(2), which governs civil proceedings.
434	Although the circumstances in which the prosecution in a criminal proceeding may seek to adduce rebuttal evidence vary widely, s 98(3) codifies the most common situations where it would be appropriate to allow the prosecution to call further evidence to meet matters raised by the defence, subject to the overriding requirement of the interests of justice. Section 98(3)(d) has been added to avoid injustice in exceptional circumstances that do not fit within paras (a)–(c).
435	The only requirement on the defence in s 98(4) is to show that it would be in the interests of justice to allow the defence to call further evidence after closing its case. It was thought further limitation would be undesirable. When defence evidence has been omitted because of counsel’s oversight, it will normally be in the interests of justice to allow the evidence, but much may depend on the stage in the trial when the application is made.
436	Section 98(5) ends a previous controversy by imposing a time beyond which a party can no longer apply to call further evidence: until the jury retires to consider the verdict, or, if there is no jury, until judgment is delivered. No submissions were received that questioned the appropriateness of this limit. Usually, the later the application, the more compelling the reason would have to be, but the court should have the power to allow rebuttal evidence; for example, to meet a novel suggestion raised in a final address to the jury.
Witness recalled by the judge
437	In an adversarial system, any power of the judge to call a witness is controversial. It is open to criticism on various grounds:80  
•	the judge should avoid “descending into the arena”;
•	the jury may be inclined to place more weight on the testimony of a witness called by the judge;
•	there may be good reason, unknown to the judge, why neither side has called a witness. 
438	Thus there was a certain amount of unease with the Commission’s original proposal to follow United States Federal Rule 614 in giving judges the power to call witnesses. In response, s 99 has been revised to allow a judge to recall a witness in the interests of justice. This is a lesser intrusion into party freedom.
Questioning of witnesses by the judge
439	While the primary responsibility for examining witnesses falls to the parties, judges must be able to seek necessary clarification from witnesses to help them or the jury understand the evidence. Thus, it is not uncommon for judges to question witnesses, usually at the end of the examination conducted by the parties. This is in keeping with the purpose of promoting the rational ascertainment of facts, as set out in s 6(a) of the Code.
440	However, the role of an activist, interrogating judge is foreign to the adversary system. The Court of Appeal has been at pains to emphasise that questioning by the judge must not be so extensive as to give the appearance of bias or unfairness to one of the parties. Section 100(1) therefore limits the judge to asking questions that justice requires. 
441	While a number of commentators agreed that a judge’s power to question witnesses should be circumscribed, others queried whether it should be codified at all, fearing that codification may itself increase the frequency with which judges question witnesses.
442	On balance, the Law Commission considers that the benefit of stating an appropriate limit of the power outweighs the possible detriment of doing so, especially as the opportunity is taken to deal with an area of uncertainty. The uncertainty concerns the right of the parties to follow the judge’s questions with questions of their own. Apparently, while some judges invariably ask the parties if they have any questions arising out of judicial questions, other judges do not permit follow-up questioning even if the parties seek it. The Commission believes that s 100(2) sets out the fairer practice of allowing follow-up questions. This has the support of a majority of commentators.
Jury questions
443	One commentator suggested that the Code should deal with questions from the jury. Again it would seem that there is a considerable variation in judicial view and practice. As with questioning by the judge, there was concern that a Code rule allowing juries to ask questions could interfere with counsel’s role and encourage jury takeover of the trial. Some commentators felt that the matter was best left to the court’s inherent power to regulate its procedure (s 11).
444	In a judge-alone trial, the judge routinely puts questions to witnesses to clear up uncertainties in the judge’s mind. The Law Commission sees no reason why this should be different when the fact-finder is the jury. Properly controlled, jury questions will promote the rational ascertainment of facts, one of the primary purposes of the Code (s 6(a)). Section 101 therefore requires the judge to decide whether and how a jury question is to be put to a witness and, if it is put, whether the parties may put questions about matters arising from a jury question. 
16. Alternative ways of giving evidence
It would seem contrary to the judgments of our court to disallow evidence available through technological advances, such as videotaping, that may benefit the truth finding process (L’Heureux-Dube J in R v L [1993] 4 SCR 419).
Introduction
445	The majority of the Law Commission’s proposals in this area
	were published in The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26, 1996). The subject matter of the discussion paper generated a large number of submissions from many community groups as well as members of the profession. The Commission’s work has also benefited from the work undertaken by the Courts Consultative Committee on the treatment of child witnesses in court proceedings. 
446	The Law Commission has adopted the phrase “alternative ways” of giving evidence throughout the Code, in preference to the current term “other modes”. The various “alternative ways” of giving evidence include closed-circuit television, videolink, the use of a one‑way screen or pre-recorded video record. The definition of alternative ways (see s 105) is, however, wide enough to encompass future technological developments.
the code provisions
Mandatory applications about child complainants
447	The Code provides that in all cases where the complainant is a child (under the age of 17 at the commencement of the proceedings) the party calling the child must apply for directions on how the child should give evidence. This is an extension of the current statutory provision (s 23D of the Evidence Act 1908), which only applies to child complainants in sexual cases. This extension received virtually unanimous support from commentators. The court may order that the child give evidence in any of the ways set out in s 105 or in the ordinary way (s 83). The court must consider the various matters set out in s 103(3), including the wishes of the complainant. Any direction on the use of alternative ways of giving evidence should not prevent a witness giving evidence in the ordinary way if he or she wishes. This is viewed as an important option for child witnesses.
448	One of the contentious aspects of this proposal was the removal of the current mandatory requirement to seek directions on intellectually disabled complainants. Although not all commentators were in favour, the Law Commission has been guided by the views of the IHC:
the withdrawal of the mandatory requirement . . . is in accordance with the principle of normalisation, and because decisions on how evidence should be given should be based on the needs of the witness, rather than the fact that the witness has an intellectual disability.
449	It was also suggested that the Law Commission follow the approach of the Courts Consultative Committee81  and recommend mandatory applications for all child witnesses. In this matter the Commission was assisted by the views of the practitioners, particularly prosecutors, during the consultation seminars, the majority of whom argued that a mandatory requirement for all child witnesses would be too onerous and often unnecessary. Commentators referred, for example, to cases of 16-year-old witnesses to non‑violent offending, who give evidence on peripheral issues. A party calling a child witness can still apply for directions under s 103.
Extended eligibility to give evidence in an alternative way
450	The Code allows any witness (including a defendant in a criminal proceeding) to apply to give evidence in an alternative way on the grounds set out in s 103(3). The original proposals focused on the needs of “vulnerable” witnesses (for example, adult complainants in sexual cases) but the grounds have now been extended to include consideration of the requirements of efficiency or necessity (in the case, for example, of witnesses who are hospitalised or outside New Zealand). The court may also make an order of its own initiative.
451	A clear majority of submissions favoured extending eligibility. Those in favour of the extension noted that the Court of Appeal has upheld successful applications relying on the court’s inherent jurisdiction.82  The strongest support for reform came from groups working with children or victims of sexual abuse and domestic violence.
452	The major criticism of the Law Commission’s proposal was that increasing the availability of alternative ways of giving evidence could lead to these alternatives becoming the norm and would undermine the adversarial system. Some commentators were concerned that using alternative ways prevents assessments of credibility based on demeanour. Other commentators considered that alternative ways of giving evidence should only be available in circumstances acceptable to the whole community. 
453	The Law Commission’s research in this area indicates that such concerns are largely unfounded (NZLC PP26, 1996, paras 101–112). Recent investigations into the extent to which these methods assist witnesses and increase the amount of reliable evidence available to fact-finders, have all resulted in recommendations for greater use of alternative ways of giving evidence, in particular closed-circuit television and videolinks. This move is consistent with recent jurisprudence and other law reform initiatives. Interested community groups are clearly in favour of increasing the availability of other means of testifying. Academic comment on the Law Commission’s proposals has also been extremely favourable.83 
Availability to defendants of alternative ways of giving evidence in criminal proceedings
454	There was concern that allowing defendants in criminal proceedings to give evidence in alternative ways may invite abuse (especially in the case of evidential video records prepared by the defence). It was also pointed out that a defendant is in a different position from witnesses and will usually be present in court throughout the entire proceedings. One group was of the view that “there should be some truly exceptional feature present before a court should direct that a defendant give evidence otherwise than in the ordinary way”. Others concluded that as the “rational ascertainment of facts” must include the defendant’s evidence, they could not see any objection in principle to a vulnerable defendant being eligible to give evidence in an alternative way on the same basis as other witnesses.
455	The Law Commission agrees that defendants in a criminal cases should be permitted to give evidence in an alternative way in exceptional circumstances only; for example, if the safety of a defendant or other trial participants requires it. In this situation a videolink may be (and has been) used.
456	There may well be special considerations when dealing with child defendants. The difficulties facing child defendants will normally be adequately addressed by the current practice in the Youth Court and by the availability of a support person. But greater protection should be available if the need arises. Section 405DA of the Crimes Amendment (Children’s Evidence) Act 1996 (NSW) has made similar provision.
Relevant factors for the court to consider when giving a direction on the use of alternative ways
457	There was general support for the grounds (s 103(3)) on which alternative ways of giving evidence may be permitted, as well as the matters the judge should take into account in giving directions. In particular, submissions emphasised the importance of taking account of the wishes of child complainants. Such an approach is viewed as consistent with New Zealand’s obligation under the United Nations Convention on the Rights of the Child. 
458	The requirement to consider cultural background was queried. The Law Commission remains of the view that in some cases cultural factors can significantly affect the amount and content of evidence. For example, a young Samoan woman (whether complainant or witness) may find it extremely difficult to give evidence against a Matai in his presence. The use of closed-circuit television or a screen may reduce this discomfort and increase the amount of relevant evidence available to the court.
Pre-trial cross-examination
459	The Law Commission’s original proposals included allowing pre-trial cross-examination in the case of child complainants or elderly witnesses. This received strong support from a wide range of community groups and some practitioners, but met with almost unanimous opposition from the defence bar. One submission stated:
[O]ne of the real problems with bringing in a regime requiring cross-examination prior to trial at an early stage is that full details of the contamination and influences are not available (if at all) until detailed enquiries have been carried out by Counsel and often only at trial. This problem is exacerbated by the tendency of the police and prosecutors only to tender the evidence of the complainant (often in videotaped form) and one or two other witnesses (sufficient to establish a prima facie case) at a depositions hearing. Often very detailed enquiry is necessary to establish the prior discussions and events which have shaped and influenced a child or young person’s or other complainant’s evidence. It is my experience that disclosure in this area is a continuing process and it is not until close before trial (usually some months after the initial videotaped interview) that effective cross-examination is possible.
460	Until more is known about the experiences of other jurisdictions with pre-trial cross-examination, the Law Commission does not recommend it.
Video record evidence
461	Section 106 of the Code covers a number of procedural rules and reforms of the law on the use of video records.
462	Section 23E(1)(a) of the Evidence Act 1908 currently allows videotaped evidence to be admitted at trial only if it has been shown at the preliminary hearing. The section effectively precludes the use of videotaped evidence in chief if the need for it arises or becomes apparent after the preliminary hearing. Other jurisdictions do not impose this limit, and the Law Commission sees no advantage in retaining it. Section 106(1) is in line with the recommendations of the Courts Consultative Committee.84 
17. Corroboration, judicial warnings and judicial directions
introduction
463	Corroboration requirements and judicial warnings are
	common law tools that deal with the problem of potentially unreliable evidence. The Commission has prepared research papers that discussed reform of these two areas. 
corroboration
464	In making its final recommendations, the Law Commission supports those of the 1984 Report on Corroboration (Evidence Law Reform Committee, 1984). The Committee recommended that corroboration requirements should be restricted to cases of treason and perjury. The reasons put forward by the Committee in their report included:
•	a corroboration requirement in most cases added nothing to the fact-finder’s task of evaluating the weight to be attached to evidence;
•	aspects of corroboration rules (particularly on discretionary warnings) were uncertain and made the law unnecessarily complex;
•	the required warning for complainants in sexual cases (apart from encouraging juries to view all complainants with suspicion, regardless of the strength of the other evidence) was contradictory and added little to the existing rules on the burden and standard of proof;
•	the technical distinction between evidence that did and evidence that did not amount to corroboration was difficult for judges to apply and even more difficult for a jury to understand.
465	The legislative reforms based on the Committee’s report of the late 1980s closely followed the reforms of other Commonwealth jurisdictions.
466	Despite more recent calls to reinstate the corroboration requirement for sexual offences alleged to have occurred in the distant past,85  the Law Commission is of the view that a case has not been made out to reverse the past reforms or go against the almost uniform trend of abolition in other jurisdictions.86  
467	The Code therefore includes a general repeal provision, retaining the need for corroboration only for perjury and treason (and related offences) (s 107).
468	The justification for the corroboration requirement in the case of perjury is to protect witnesses from vexatious accusations of lying on oath. It is thought that making it too easy to prosecute someone for perjury might discourage people from giving evidence, which is undesirable. In the case of treason, the 1984 Report adopted Wigmore’s reasoning that corroboration is necessary because of the risk that dominant political parties could too easily obtain false testimony of treason in order to get rid of troublesome opponents (paras 48–52).
469	Most commentators have strongly supported the Law Commission’s proposals in this area.
Judicial warnings and judicial directions
470	The general provision in s 108(1) requires the judge to warn the jury of the need for caution about accepting and giving weight to evidence the judge thinks may be unreliable. A judge sitting alone as the trier of fact should also be aware of the need for caution when considering a particular piece of evidence – s 108(6). 
471	The Commission considers that certain kinds of evidence are potentially unreliable. Section 108(2) therefore imposes on the judge a duty to consider whether to give a warning in every case where there is hearsay evidence, evidence of a confession that is the only evidence of an offence, or evidence offered by a witness who may have a motive to give false evidence prejudicial to the defendant. 
Hearsay evidence
472	In Evidence Law: Hearsay (NZLC PP15, 1991) the Law Commission stated, with regard to the weight to be given to hearsay evidence, that “directions from the judge on the issue will often be essential in a jury trial” (para 57). In R v Bain [1996] 1 NZLR 129, 133, the Court of Appeal repeated the need for the trial judge to alert the jury to the dangers inherent in accepting hearsay. This approach is in keeping with s 165(1)(a) of the Evidence Act 1995 (Aust). The recent liberalisation of the hearsay rule in Canada has also been associated with an emphasis on the importance of proper directions to the jury.87 
473	In general, a warning should point out that hearsay evidence may be unreliable because the maker of the statement had not given a solemn promise to tell the truth, and the jury has not seen how the evidence stood up to cross-examination. Such matters will not necessarily be obvious to the jury. A suggested warning issued by the Judicial Studies Board of Great Britain is included in para C386 of the Commentary as a guide.
Confessions as the only evidence of an offence
474	The possibility that defendants may confess to crimes they did not commit is now accepted and there would be obvious risks in convicting on the basis of such evidence alone. The Law Commission therefore considers that the Code should specifically address this possibility (s 108(2)(b)).
Witnesses who may have a motive to give false evidence prejudicial to a defendant
475	The requirement in s 108(2)(c) to consider giving a warning about evidence from a witness who may have a motive to give false evidence prejudicial to a defendant re-enacts the substance of s 12C of the Evidence Act 1908. 
Other classes of unreliable evidence
Historical offences
476	In response to a question from the Law Commission, a number of commentators supported a specific reference in the Code’s warning provision to testimony given many years after an alleged offence. These commentators were particularly concerned about convictions based on events that took place in the distant past. While the Commission agrees that lengthy delays may raise issues of fairness, it considers that the mere fact of delay does not make particular pieces of evidence unsafe or unreliable. Evidence offered by the prosecution or defence based on historical events may well be reliable and supported by other evidence. The Commission is therefore of the view that no specific mention should be made of evidence in “historical” cases, and that any particular concerns may be dealt with by the general warnings provision, which is sufficiently broad to respond to the circumstances of each case (s 108(1) and (5)).
Evidence based on recovered memory
477	The Law Commission undertook extensive research and consultation on the topic of recovered memory. A miscellaneous paper outlining the current research on memory processes has been published with the Report and Evidence Code and provides the background to the Commission’s recommendations (Total Recall? The Reliability of Witness Testimony (NZLC MP13, 1999)).
478	The Commission’s survey of the current psychological literature suggests that people may recover or recall memories of traumatic childhood events, such as sexual abuse, after a long period of time during which they have partially or completely lost access to those memories. Such memories can be just as reliable, or just as fallible, as continuous memories of a past event. The same factors can influence the reliability of both continuous memories and recovered memories. In addition, there is a wide range of possible circumstances in which a person may recover or recall a memory of a traumatic childhood event such as sexual abuse. The current state of knowledge does not allow the Law Commission to recommend with confidence that as a general rule evidence based on recovered memories should be excluded.
479	The Law Commission also does not recommend that recovered memory evidence be included in the specified warnings list. The subject of recovered memories of traumatic childhood events is currently a very active area of research, the results of which are as yet inconclusive. The Commission therefore recommends that in cases where there is evidence based on recovered or recalled memories of traumatic childhood events, any warning should be tailored to suit the facts of the particular case and any expert evidence that may have been called to assist the jury.
Evidence offered in certain ways
480	The recommendation embodied in s 109 is a more general version of the existing s 23H(a) of the Evidence Act 1908. Section 109 requires the judge to direct the jury not to draw adverse inferences against a defendant in a criminal proceeding if any witness offers evidence in an alternative way or pursuant to a witness anonymity order, or if unrepresented defendants are prohibited by s 95 from personally cross-examining a witness. 
Judicial warnings about lies
481	The Law Commission considers that the law governing how judges should direct juries about lies told by a defendant in a criminal proceeding has become needlessly complex and, to a certain extent, illogical. The state of the law is such that a judge will almost certainly be successfully challenged on appeal if he or she directs the jury that lies may be used to determine guilt. By default, the common law has been reformed so that in effect lies can only be relevant to credibility and never indicative of guilt. The fact that people who lie are not necessarily guilty does not mean that guilty people never lie. In the Law Commission’s view, a proved lie is simply an item of circumstantial evidence, akin to evidence that the defendant was seen fleeing the scene of the crime, and should be treated as such. Like any item of circumstantial evidence, the inference to be drawn from it is a matter for the jury, and the Commission considers there is no reason to treat evidence of lies in a special way. The recommendations contained in s 110 reflect this approach.
482	The Law Commission proposes that whenever the prosecution alleges that a defendant has lied, if the defendant so requests, or the judge considers a jury may place undue weight on the lie, the judge should continue to warn the jury:
•	that the jury must be satisfied, before using the evidence, that the defendant did lie; and
•	that people lie for a variety of reasons; and
•	that the jury should not conclude that just because the defendant lied he or she is guilty (s 110(3)). 
483	It should then be left to the jury how they use the evidence of the lie – in assessing truthfulness or as part of the circumstantial evidence to prove the defendant’s guilt. Thus, s 110(2) states specifically that a judge is not obliged to direct the jury on what inferences the jury may draw from evidence of a defendant’s lie.
484	There was strong support for this proposal, particularly from some judges.
485	A number of senior practitioners also supported the proposal. One commentator noted:
I agree that the present law, that the court or jury must believe the defendant guilty before a lie can be used to strengthen the prosecution case, is unsatisfactory. It is based on the untenable proposition that persons who lie when faced with an accusation should be regarded as doing so for innocent reasons, until the contrary is established. In effect, the lying defendant is afforded the same protection against self-incrimination as the one who exercises a right to silence. . . . However, it should still be open to judges to warn juries that people can lie for reasons other than concealment of guilt and that they should not jump to the conclusion that the defendant is guilty just because he lied. With these reservations I would accept that a proved lie by a defendant about some matter material to the offence may be taken into account as a circumstance indicative of guilt. Accordingly, I am in general agreement with the Commission’s approach to this topic and with its view that the assessment of the effect of lying can properly be left to juries.
Judicial directions about children’s evidence
486	The provisions contained in ss 23H(b) and (c) of the Evidence Act 1908 will no longer be strictly necessary with the virtual abolition of the need for corroboration proposed in s 107. However, the majority of commentators wanted the existing provisions on child witnesses re-enacted to prevent any argument from their omission that abolition was intended. 
487	Section 111 re-enacts much of the substance of the existing provisions. No warning about the lack of corroboration of a child complainant’s evidence should be given (s 111(1)). A judge should also not in general instruct the jury to scrutinise the evidence of children with special care, nor suggest to the jury that children tend to invent or distort. The Code does, however, add a qualification to the existing provision: judicial comment will be permissible if expert evidence to the contrary has been offered (s 111(2)). 
488	There is currently no evidence to support the proposition that children spontaneously and without prompting fabricate claims of sexual abuse. Researchers agree that young children can often recall events flawlessly.88  A number of studies indicate that children’s recall is at times highly accurate and quite detailed about a large range of events. Juries should not therefore be routinely instructed to scrutinise the evidence of young children with special care; rather they should be instructed to scrutinise the way young children have been questioned. Research emphasises the need for unbiased neutral interviewers, the minimal use of leading questions and an absence of threats, bribes and peer pressure. The studies that demonstrate children’s ability to recall accurately used interviews conducted in this way, that is, “non-suggestive” interviews.
489	As a result of the Law Commission’s research, and in consultation with child psychologists and academics with relevant clinical experience, the Code contains a judicial direction that incorporates the most recent research on the reliability of very young children’s evidence. Commentators strongly supported this standardised direction which gives positive assistance to judges in directing juries about the way to approach the evidence of very young children and allows juries to focus on how young children are questioned (s 111(3)): research indicates this is a better predictor of reliability than age alone. The opening words of s 111(3) make it clear that this provision complements the general prohibition in s 111(2).
490	The proposal was criticised by some members of the judiciary who consider that in giving such a direction judges would in effect be giving expert evidence. However, judges would no more be giving expert evidence than formerly, when they were required to warn juries to treat children’s evidence with caution because of their tendency to fantasise and fabricate. Judges are also authorised by legislation to direct juries to evaluate evidence in particular ways. Such authorisations, for example s 344D of the Crimes Act 1961, are based on well accepted research and consensus among experts. Section 111(3) of the Code follows this model.
491	Section 111(4) provides that the enactment of particular kinds of instructions does not prevent the judge from informing or warning the jury about matters of relevance to the specific case.
Judicial warnings about identification evidence
492	The Law Commission recommends that s 344D of the Crimes Act 1961 be re-enacted in the Evidence Code. Section 112 achieves this purpose and extends the provisions to voice identifications as well as visual identifications, and to other persons whose identification is material in the case against the defendant (see discussion at para 208).
Timeliness of complaints in sexual cases 
493	The Code contains a provision similar in application to s 23AC of the Evidence Act 1908 (s 113).
18. Judicial notice and reference to reliable public documents
Judicial notice
494	The doctrine of judicial notice is one of some theoretical
	complexity. In its discussion paper on Documentary Evidence and Judicial Notice, the Law Commission considered various aspects of the doctrine, including judicial notice of adjudicative and legislative facts and judicial notice of the law. The Commission concluded that the doctrine of judicial notice has a wider range than the law of evidence. It accordingly proposes to include in the Code a single provision on judicial notice to allow fact-finders to take judicial notice of adjudicative facts that cannot reasonably be disputed. The remainder of the law on judicial notice is not considered properly part of an evidence code. The Code therefore does not contain provisions on judicial notice of the law or legislative facts. The Commission also does not propose to re-enact the provisions of the Evidence Act 1908 that provide for judicial notice of statutes and regulations: they are considered unnecessary because of the Code’s treatment of hearsay and documentary evidence.
495	The Law Commission’s original proposals, now contained in s 114, were well supported, provoking no major objections. Some District Court Judges were of the view that parties should give notice if they require the judge to take judicial notice. The Commission considers this approach is not desirable because such matters often arise spontaneously in the course of argument and a notice requirement would be unduly cumbersome.
496	One commentator suggested that judicial notice by the jury ought to be eliminated:
To allow the jurors to make up their own minds as to what “everybody knows” is to invite them to use their own knowledge of the facts, rather than evidence properly admitted by the court, as the basis for the verdict.
497	The Law Commission accepts that, in general, jury consideration should confine itself to the evidence, and it would not be prudent for judges to instruct juries that they may themselves take “judicial notice” of facts. However, legislating against judicial notice by the jury is unlikely to be effective. If during their deliberations juries decide to assume the existence of facts that have not been proved in evidence, little if anything can be done. If a jury asks a question about facts, then the judge may instruct them to take notice of a fact (or not). The Law Commission is therefore of the view that there is no need for the Code to specifically address the issue of judicial notice by the jury.
Admission of reliable published documents
498	The Code contains a section that is similar in many respects to s 42 of the Evidence Act 1908. The aim of s 115 is to facilitate the admission of some types of hearsay and opinion evidence without the need to satisfy those rules. Section 115(1) allows published documents dealing with public history, literature, science or art to be admitted as evidence. The section focuses specifically on reliability, which the Commission views as the appropriate admissibility test. It is envisaged that s 115 will operate in a way similar to s 42 of the Evidence Act 1908 to enable, for example, certain findings and reports of the Waitangi Tribunal to be admitted (Te Runanga O Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 (CA)).
19. Evidence of foreign law
the code provisions
Proof of foreign law
499	At common law, foreign law is a question of fact. It must be
	proved by expert evidence. A qualified legal practitioner from a foreign country will be a competent expert, and in some cases a non-lawyer may also be able to give expert evidence about certain matters of foreign law. Section 19C of the Judicature Act 1908 provides that questions of foreign law that arise in a jury trial are to be decided by the judge, not the jury.
500	Questions about foreign law arise with some regularity in New Zealand proceedings. A substantive matter before the court may be governed by foreign law, in accordance with normal choice of law principles.89  More frequently, issues of foreign law arise under New Zealand statutes, or in the course of enforcing a foreign judgment in New Zealand. For example, the Reciprocal Enforcement of Judgments Act 1934 provides for registering and enforcing judgments of certain foreign courts, if the judgment is final and conclusive as between the parties. Whether or not it is final and conclusive depends on the law of the foreign country. (The same issues arise when enforcing a foreign judgment at common law.)
501	So from time to time it is necessary to prove some aspect of foreign law in a New Zealand court. This law may be written law set out in a statute, regulation or by-law, or it may be unwritten or common law, or a combination of the two (for example, a decision of a court in a civil law jurisdiction explaining the effect of a provision of that country’s code).
Methods of proving foreign law – the possibilities
502	There are currently a number of permissible methods of proving foreign law in a New Zealand court:
•	Evidence can be called from an appropriately qualified expert witness. The expert may in giving evidence refer to materials which the court is entitled to examine and about which the court may in some circumstances form its own conclusions. This is the best way to prove foreign law, but it can be very expensive, especially if the question is of minor importance in the proceeding.
•	The court may be referred to official copies of written laws of that country – for example, statutes printed by the government printer in that jurisdiction.
•	The court may be referred to unofficial editions of the written laws of the country – for example, the court may be asked to look at the CCH version of the Australian Corporations Law, or of the Canada Business Corporations Act.
•	The court may be referred to reports of judicial decisions on the relevant issue from that country. These reports may be official reports produced under some form of legislative authority, or unofficial reports prepared by a commercial publisher.
•	The court may be referred to a textbook on the law of the foreign country.
Section 116 codifies all these methods of proving foreign law. 
503	Although the Code rules on documentary evidence and hearsay evidence will, in most situations, allow official versions of legislation and official reports of judicial decisions to be admitted in evidence, the Law Commission is of the view that in the interests of clarity and efficiency a specific section dealing with proof of foreign law is desirable. Evidence of foreign law that is hearsay will not be subject to the hearsay rules as the section is intended to facilitate the admission of this type of evidence (s 116(6)).
Evidence taken overseas, or taken in New Zealand on behalf of an overseas court
504	Scattered through a number of statutes are various provisions setting out the circumstances in which evidence may be obtained overseas for use in New Zealand, and in New Zealand for use overseas. They include sections 48 to 48J of the Evidence Act 1908, Part IV of the Evidence Amendment Act (No 2) 1980, and the Evidence Amendment Act 1990. The Evidence Amendment Act 1994 deals with evidence taken in Australia for the purpose of New Zealand proceedings and in New Zealand for the purpose of Australian proceedings.
505	The Law Commission recommends that these provisions should be gathered in a single statute. Accession to The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970, to which a number of New Zealand’s major trading partners (including the USA and the UK) are parties, may be another means of dealing with some of these matters.
506	The Law Commission considers that a review of these provisions, which are quite distinct from the issues addressed in the Code, should be a separate exercise. Until this occurs, the Commission recommends that when the Evidence Code is enacted, the relevant sections from the Evidence Act 1908 and its amendments that have not been repealed (see Schedule 2) should be gathered together in a separate statute.
20. Documentary evidence and evidence produced by machine, device or technical process
introduction
507	Documentary evidence lies at the heart of much litigation
	and its importance cannot be overestimated. In both civil and criminal cases, parties often resort to documents to prove many issues. Sound rules on the admissibility and use of documentary evidence are needed so as to avoid inefficiency and injustice.
508	Much of the law in this area is found in ancient English cases or relatively obscure sections of the Evidence Act 1908 and other statutes, enacted to deal with specific problems as they arose rather than approaching the issues from a principled perspective. In the Law Commission’s view, the rules are overly complex and technical. They are also out of date. The law has not always kept up with changes in technology, especially the increasing use of computer systems for producing and storing information. The consequence of these failings is that the rules are not well understood and can operate as a trap for the unwary. In civil cases the rules are also often bypassed by producing documents in an agreed bundle. 
509	The Law Commission considers that reform should:
•	facilitate the admission of relevant and reliable evidence;
•	prevent unsatisfactory evidence coming before the court;
•	be as simple as possible and easy to use in practice;
•	facilitate the determination of disputes about admissibility; and
•	accord with the general principles of evidence law.
510	The Law Commission has reviewed the original proposals in the preliminary paper on documentary evidence in light of its final recommendations on other admissibility issues, in particular those relating to hearsay evidence. As a result, many of the rules that were first proposed are considered to be no longer necessary. The significant reduction in number has met with the approval of commentators, who agree that no important matters have been overlooked.
511	The Law Commission’s final recommendations on documentary evidence simplify and clarify the rules, reduce them in number, and place them within the framework of the principles of evidence law as a whole.
Definition of document
512	The provisions in this Part rely on the definition of document in s 4 of the Code. This definition is deliberately wide and is intended to encompass the various ways of generating, recording and retrieving information that may be possible now and in the future.
513	In Electronic Commerce Part One: A Guide for the Legal and Business Community (NZLC R50, 1998), the Commission considered that the recommendations proposed for documentary evidence in the final Evidence Report would “meet the needs of electronic commerce by facilitating the production of electronically generated evidence” (para 193). In response to the Electronic Commerce Report, two submissions questioned the proposed definition of “document” in the Code because the definition appeared to include not only the information stored in a computer, but the computer itself.
514	The Code defines “document” as a “record of information”. Thus a computer would be a document only if, for example, its surface contains writing that is relevant evidence in a proceeding. Ordinarily the “document” would be that part of the computer that contains the relevant electronic data; ie, a particular portion of the hard disk. The problems identified by the commentators on the Electronic Commerce Report relate not so much to the definition of “document”, as to the process of discovery. The concern is that the existence of relevant information stored on a computer would make the computer itself discoverable. That, however, is not an evidential issue, but one of procedure that has to be left to the exercise of common sense by counsel and the judiciary.90  
the code provisions
Offering documents in evidence without calling a witness
515	The usual way of putting a document in evidence is to call a witness who identifies the document, the signatory (usually the witness) and the addressee, confirms the date and contents, and produces the document. The procedure proposed in s 117 will enable documents to be produced without a witness. 
516	A party wishing to make use of the procedure must give notice in writing to every other party of their intention to put a document in evidence without calling a witness to produce it. A copy of the document must be attached to the notice (s 117(1)). Any party who wishes to object to the document being produced in this way or to dispute its authenticity, must also give notice in writing (s 117(2)). 
517	If there is no objection, or if the objection is dismissed, the document may be admitted without calling a witness, and it will be presumed that the nature, origin, and contents of the document are as shown on its face (s 117(3)). Otherwise, a witness will have to be called to produce it in the usual way, or, if the objection is about authenticity, then evidence will need to be led on the point. Unwarranted objections may have cost implications for the party that raised them. 
518	A number of commentators preferred a specific time limit for giving notice. The Law Commission remains of the view that the Code should not specify periods of time for notice. Reference to “sufficient time” to enable other parties to respond will enable a judge to set a timetable in any particular case. It will also avoid conflict with time limits in other legislation such as the High Court Rules and District Courts Rules.
519	The notice requirement would entail pre-trial disclosure on the part of the defence if it wishes to take advantage of the procedure. The hearsay rules will apply to documents produced under s 117, including the requirement to give notice of intention to offer hearsay evidence in a criminal proceeding; but it is envisaged that the one notice can be made to serve both purposes.
520	This section is different from the Commission’s original proposals in that the final recommendation includes both a presumption of authenticity as well as matters of procedure. Commentators have strongly supported these recommendations. 
Summary of voluminous documents
521	Section 118 will encourage the continuation of an efficient practice that already occurs by consent, and was strongly supported by commentators.
Translations and transcripts
522	In its preliminary paper, the Law Commission recommended that transcripts of writing in code (such as shorthand) and of sound or video records should be admissible in evidence. In the case of sound recordings, the court may require the recording to be played. This proposal was supported but a number of commentators considered that the Code should also deal with the admissibility of translated documents. Given that the issues raised are identical to those relating to transcripts of coded language, s 119 now covers both transcripts and translations. It also contains a presumption of accuracy of translations (s 119(2)) and a notice requirement (s 119(1)). 
Proof of signatures on attested documents
523	At common law, when a document was attested, it was necessary to call a subscribing witness to testify that a proper person executed the document. This rule applied regardless of whether it was legally necessary for the document to be attested. Section 18 of the Evidence Act 1908 abolished this requirement, but only for those documents that do not need attestation.
524	Section 18 of the Evidence Act 1908 was made redundant by s 5 of the Evidence Amendment Act 1945. Section 5 removed the requirement to call attesting witnesses for all documents – except wills or other testamentary documents – and in all proceedings. Section 120 of the Code completes the abolition by re-enacting s 5 of the Evidence Amendment Act 1945 without making any exception for testamentary documents. This means that under the Code it will not be necessary to call an attesting witness to prove the attestation of any document: attestation can be proved by any satisfactory means.
525	In Succession Law: Wills Reforms (NZLC MP 2, 1996) para 79, the Law Commission supported in principle the introduction of a general power to dispense with the formal rules for executing wills. Section 120 avoids a potential anomaly with wills that are held (under the power to dispense with the formal rules of execution) to be valid despite the absence of witnesses attesting to their execution. If courts may dispense with attestation completely, there is every reason to relax the rules when the formalities are complied with.
526	Commentators strongly supported the recommendations contained in s 120. The only change made in the final recommendation is to add a specific reference to digital signatures.
Evidence produced by machine, device or technical process
527	In Documentary Evidence and Judicial Notice (NZLC PP22, 1994), the Law Commission proposed to allow information stored in such a way as to require a machine, device or technical process to display or retrieve it, to be adduced by way of a document produced by the appropriate machine (draft rule 4(2)). This rule (now s 121(2)) covered sound and video recordings, as well as information stored on a computer disk that can only be accessed by being printed out or displayed on a screen. The proposal was intended in part to clarify the legal position of various forms of computer-stored documents (for instance, documents stored on optical disks) and to ensure that the form of the document is not a barrier to its reception by the court.
528	The original proposals also contained a separate rule addressing the issue of the performance of computers or technical processes, in order to clarify authenticity and therefore admissibility inquiries (draft rule 18). The Law Commission received a number of submissions on these proposals and those outlined in the Electronic Commerce Report. The commentators’ response has led to some minor revisions of the original rules. 
529	The majority of commentators supported the policy behind both original proposals. They also agreed with the presumption in draft rule 18 that the machine or technical process did what the party asserts it ordinarily does. 
Authenticity of public documents
530	Section 122 is aimed at facilitating the admission of public documents (defined in s 4 of the Code) or copies of public documents, without the need to resort to the hearsay rules (s 122(2)). It also provides for a presumption of authenticity of public documents.
Evidence of convictions, acquittals and other judicial proceedings
531	Section 123 allows the results of legal proceedings, or the existence and particulars of legal proceedings, to be proved by way of a certificate signed by specified persons. But the evidence must first be admissible under the Code: that is, s 123 is not itself an admissibility rule except insofar as s 123(5) excludes the operation of the hearsay rules. Evidence of a conviction, for example, must first be admissible by reference to the rules in Part 3 Subpart 7, or by reference to any other applicable rules such as the truthfulness and propensity rules. 
Proof of conviction by fingerprints
532	Section 124 re-enacts the substance of the existing s 12A of the Evidence Act 1908. It provides an alternative way of proving a previous conviction if such evidence is admissible. 
New Zealand and foreign official documents; notification of acts in official documents; presumptions on New Zealand and foreign official seals and signatures
533	These three sections (ss 125, 126 and 127) are modified versions of ss 29–37 of the Evidence Act 1908. They create a presumption of the authenticity of official documents and presumptions of the performance of official acts. Sections 125 and 126 also facilitate the admission of this type of hearsay evidence without recourse to the hearsay rules.
Verification of private documents executed outside New Zealand
534	Section 9 of the Evidence Amendment Act 1945 and s 6 of the Evidence Amendment Act 1952 are concerned with verifying documents executed outside New Zealand.
535	These provisions address the question of proof that a particular person has executed a document. They identify certain forms of verification raising a presumption that the person who appears to have executed the document actually executed it, without the need to call evidence on that point. 
536	The Law Commission’s general approach to documentary evidence addresses the concern motivating those provisions, namely that calling the maker to give evidence would be unduly costly if that person is overseas, since documents that are self-authenticating will be admissible without the need for further evidence. If the documents are treated as self-authenticating – in the sense that they are presumed to be signed by the person by whom they purport to be signed, unless that is challenged (ss 117 and 120) – there is no need for special provisions.
537	The Law Commission therefore recommends that neither section be re-enacted in the Code, as the provisions for admitting documents are considered sufficient to deal with the issues.
Appendix A:
The law reform process
A1	The Law Commission’s recommendations for reform are
	developed through a process of thorough research and extensive consultation. Submissions received from commentators are considered and result in final recommendations, which are often subject to further peer review. The Commission followed this process throughout the evidence project. 
A2	The Law Commission sought comments from the legal profession and interested community groups by publishing and disseminating a number of preliminary papers and reports. The Commission also approached selected members of the legal profession with particular expertise to assist with research or to comment on a wide range of unpublished research papers. A large component of their work was pro bono. Abbreviated consultation papers summarising the Law Commission’s policy and proposals in a number of areas were also distributed to all members of the judiciary. With the assistance of the Law Foundation and the New Zealand Law Society, the Commissioner in charge of the project, Judge Margaret Lee, along with members of the project team, presented a seminar on a draft Evidence Code in the five main centres in March of 1997. On matters relating to te ao Mäori, the Law Commission was assisted by the Mäori Committee and by a number of Mäori practitioners. 
A3	A list of the relevant Commission documents, prepared as part of the evidence project or the criminal procedure reference, appears below. A number of recommendations from the Commission’s work in the criminal procedure area are also included in the Evidence Code and Report (for example, the privilege against self-incrimination, and rules about defendants’ statements, improperly obtained evidence and the right of silence).
A4	The Law Commission’s work would not have been possible without the assistance of members of the profession (including those who attended the New Zealand Law Society seminar series) and a number of government agencies and community groups. A full list of those individuals and groups who assisted us, usually on a voluntary basis, follows. Without detracting from the value of the contributions of all who provided us with peer review, the Commission particularly wishes to thank the following individuals: The Hon Sir John Wallace QC (former Commissioner in Charge of the Evidence Project); the Rt Hon Sir Maurice Casey and the Rt Hon Sir Ian McKay, formerly of the Court of Appeal; Justices McGechan and Gallen; Judges Kerr, Moran and Rae; Dr Donald Mathieson QC; Members of the New Zealand Law Society Evidence Project Sub-Committee; Mr Grant Burston, Crown Prosecutor, Wellington; Professor Gerry Orchard of the University of Canterbury; Mr Scott Optican, Senior Lecturer in Law, University of Auckland; Mr Bernard Robertson, Editor, New Zealand Law Journal; Mr David Goddard, Barrister, Wellington; and Mr Chris Finlayson, Barrister and Solicitor and Honorary Lecturer, Victoria University, Wellington. The Law Commission also acknowledges the work of past and present Commissioners and members of the research staff whose contributions provided the essential foundation for the final version of the Evidence Code, Commentary and Report.
A5	The quality of the final publications is in large measure due to the invaluable and continuing assistance of Associate-Professor Richard Mahoney of the University of Otago, who brought to the project team the depth of knowledge and critical analysis of an academic as well as the pragmatism of a practitioner at the criminal bar. The Code provisions were drafted by Garth Thornton QC, Legislative Counsel, who provided the project team with a product of conciseness and clarity of expression. He never tired of testing and probing the Commission’s instructions in order to ensure they achieved the desired result. For this the Commission is grateful.
A6	The Commentary and Final Report were prepared by Judge Margaret Lee, Commissioner in Charge of the Evidence Project; Elisabeth McDonald, Senior Lecturer in Law, Victoria University; and Karen Belt, Researcher.
LIST OF RELEVANT COMMISSION PAPERS
Reports
NZLC R14 	Criminal Procedure: Part One: Disclosure and Committal (1990)	
NZLC R31	Police Questioning (1994)	
NZLC R42	Evidence Law: Witness Anonymity (1997)	
Preliminary Papers
NZLC PP10	Hearsay Evidence (options paper) (1989)	
NZLC PP13	Evidence Law: Principles for Reform (discussion paper) (1991)	
NZLC PP14	Evidence Law: Codification (discussion paper) (1991)	
NZLC PP15	Evidence Law: Hearsay (discussion paper) (1991)	
NZLC PP18	Evidence Law: Expert Evidence and Opinion Evidence (discussion paper) (1991)	
NZLC PP21	Criminal Evidence: Police Questioning (discussion paper) (1992)	
NZLC PP22	Evidence Law: Documentary Evidence and Judicial Notice (discussion paper) (1994)	
NZLC PP23	Evidence Law: Privilege (discussion paper) (1994)	
NZLC PP25	The Privilege Against Self-Incrimination (discussion paper) (1996)	
NZLC PP26	The Evidence of Children and Other Vulnerable Witnesses (discussion paper) (1996)	
NZLC PP27	Evidence Law: Character and Credibility (discussion paper) (1997)	
NZLC PP29	Witness Anonymity (discussion paper) (1997)	
Miscellaneous Papers
NZLC MP5	The Law of Parliamentary Privilege in New Zealand (reference paper) (1996) 	
NZLC MP13	Total Recall? The Reliability of Witness Testimony (1999)	
Unpublished Research Papers
The Admissibility in Criminal Proceedings of Evidence of a Third Person’s Earlier Criminal Convictions (1995)
Admissions in Civil Cases (1992)
Alternative Means of Giving Evidence (1993)
Burden and Standard of Proof (1997)
Compellability (1997)
Confessions (1997)
The Course of Evidence (1994)
The Court’s Power to Call Witnesses (1996)
Cross-examination (1995)
Cross-examination on Documents (1995)
Demonstrations, Inspections and Visual Aids (1997)
The Duty to Put the Case (1995)
Ethnic Perspectives in Relation to Rules of Evidence: Character and Credibility (1995)
Evidence of Acquittals (1995)
Evidence of Foreign Law (1997)
Evidence of Judge and Jury (1996)
Examining Witnesses (1997)
Expert Opinion Evidence and Daubert v Merrell Dow Pharmaceuticals (1995)
Hearsay Evidence: Notice provisions (a comparison) (1997)
The Hearsay Rule in Scotland (1997)
The Rule in Hollington v Hewthorn (1997)
Idaho v Wright (hearsay) (1992)
Identification Evidence (1995)
Impounding Documents and Stamp Duty (1997)
Improperly Obtained Evidence (1997)
Inherent Jurisdiction (1996)
Judicial Warnings, Corroboration and Lies (1997)
Leading Questions (1995)
Lies (1997)
Non-publication Orders (1997)
Oaths (1997)
The Prior Statements of a Witness (1997)
Proof of Previous Convictions, Acquittals and Civil Proceedings (1997)
Psychological Syndrome Evidence (1997)
Questioning by the Judge (1996)
Rebuttal Evidence (1995)
Recovered Memories (1997)
Re-examination (1995)
Refreshing Memory (1995)
Res Judicata (1995)
The Right of Silence draft report (1997)
Section 23B of the Evidence Act 1908 (1997)
Should the Evidence Code Apply to Tribunals? (1995)
Similar Fact: Poisoning and Receiving (1995)
The Trial Process (1996)
Voir Dire (1997)
Witnesses Identifying Themselves When Giving Evidence (1996)
Consultation Papers
Evidence Law Reform: Te ao Mäori Consultation (1997)
Draft Evidence Code (prepared for the consultative workshop) (1997)
LIST OF COMMENTATORS
(Commentators are referred to by the title they held when making their submission.)
Individuals
David Abbott
Judge Adams 
J G Adlam
William Akel 
Mark Alderdice
Claire Allan
Professor Ronald J Allen
James Armour
Brian Ashwell
Wendy Ball
Peter Barker
Hon Sir Ian Barker
Joan Barnes
Maureen Barnes
David L Bates
Judge Bathgate 
Judge Becroft
G I Bellamy
Rt Rev Bishop Manuhuia Bennett
Tom Bennion
Senior Sergeant P Berry
Warren Berryman
Louis Bidois
John Billington QC
Rt Hon Sir Gordon Bisson
J Black
Judge Bollard
Judge Bouchier 
Geoffrey Bowes
Janice Brabyn
David Brown 
Judge Brown 
Stephen Bryers
Robert Buchanan
Donna Buckingham
Judge Buckton
K I Bullock
Nicola Burkitt
David Burns
Judge Cadenhead
Judge Callaghan 
Professor Alistair V Campbell
Judge Carruthers 
Richard Cathie
John Chadwick
Louise Chandler
Hon Sir Muir Chilwell
Kiran Chhaganlal
Judge Christiansen
Ken Coates
Rt Hon Justice Sir Robin Cooke 
B Corkill
J C Corry
Judge Costigan
Noel Cox
Amanda Cropp
Sergeant Ned Cruickshank
Catherine Cull
Helen Cull QC
Judge von Dadelszen 
Judge Dalmer
Nick Davidson QC
Emma Davies
Mike Davies
John Dawson
Maria Deligiannis
Professor Ian Dennis
Judge Deobhakta
David Dixon
Robert Dobson
Hon Justice Doogue
Dr Glenys Dore
Chief Judge Durie
Professor Mason Durie
Richard Earwaker
Brian Easton
D Elder
Hon Justice Elias
Hon Justice Ellis
Stuart Ennor
Judge Erber
Kathy Ertel
R W Edgley QC
John Faire 
P Faulkner
Brigid Feehan
Chris Finlayson
Hon Justice Fisher
Chris Foot
K M France
Simon France 
Judge Frater
Ian Freckleton
Professor Richard Friedman
Hon Justice Gallen
Rt Hon Justice Gault
Dr Maryanne Garry
S Gaze
Dr G D Geddis
Dr Rosland Gellatly
John Gibson QC
Michael Gibson
Judge Gilbert
E P Giddens
Hon Justice Giles
Janet Girvan
Lowell Goddard QC
Chief Labour Court Judge Goddard
Gary Gotlieb
Bruce Gray
James Green
Judge Green
Bevan Greenslade
B Grierson
Stephen Guest
John C Hagen
Victoria Hair
John Haigh
Nigel Hampton QC
John Hannan
Hon Justice Hansen
Rt Hon Justice Hardie Boys 
Jeff Harley
Michael Harte
Judge Harvey
Mark Henaghan
Emily Henderson
Rt Hon Justice Henry
Hon Justice Heron
Janet Hesketh
John Hickey
Charl Hirschfeld
Hugo Hoffman
Judge Hole
Hon Justice Holland
Greg Hollister-Jones
Judge Hubble
Grant Illingworth
Gail Irwin
Judge Jackson 
Judge Jamieson
Judge Jaine
Sir John Jeffries
Peter Jenkin QC
Russell Johnson
Judge Johnson
James Johnston
Anna de Jonge
Judge Joyce
Garry Judd QC
Stefan Kaminski
Pru Kapua
Linda Kaye
Judge Keane
Judge Kendall
David Kerr
Judge Kerr
Howard C Keyte QC
M J Knowles
J Stephan Kos
Judge Laing
Geoffrey Lamb
Michael Lamont
Jim Large
Rick Lempert
Grant G Liddell
R Lithgow
Judge MacCormick
Judge MacLean
Suzanne Mahon
Judge Mather
Dr G Maxwell
Judge P McAloon 
Judge McAuslan 
Rt Hon Sir Thaddeus McCarthy
D McColl
Kirsty P McDonald
Judith McDougall
Judge McElrea
D G McGee
Gerard McGreevy
Deputy Chief Judge A G McHugh
P G McHugh
Peter McKenzie
Hon J McLay
J K McLay
R McLeod
Duncan McMullin
Chris McVeigh
David Miller
Sally Miller
Phil Mitchell
Judge Moore
S Moore
Judge Moran
Hon Justice Morris
Dr Allison Morris
Barbara Morris
Judge Moss
Brendan Mullan
James Mullineux
Hon Justice Neazor
Judge Neems 
Chris Ng
Chris Nicoll
Judge Nicholson 
M A Norder
Judge O’Donovan
Michael Okkerse
Greg Olsen
David O’Neil
Judge Ongley
Philip O’Reilly
Jeff Owens
Judge Palmer
Carli Pamplin
Graham Pankhurst
Dr Barry S Parsonson
Kylie Pascoe
J A Paterson 
C M Paul
Brian Pauling
Hon Justice Penlington
Paul Perniskie
Dennis Pezaro
Anne Phillips
Colin Pidgeon QC
Dr Mel Pipe
Dr John Podd
John Pohl
Judge Price
Hon Justice Rabone
Hon Justice Randerson 
M R Radford
Dr Gail Ratcliffe
John D Rangitauira
Judge Rea
Colin Reed
Henderson Reeves
Hugh Rennie QC
Professor Jim Richardson
Judy Riddell
Alan Ritchie
Hon Justice Robertson
Judge Robinson
Trevor Robinson
Judge Roderick
Judge Rota
John Rowan QC
Gina Rudland
Judge Rushton
Anthony Russell
D Ryan
Dr Erihana Ryan
Hon Justice Salmon
J C S Sandston
Judge Saunders
Amelia Schaaf
Hart Schwartz 
A Scott
Dr Fred Seymour
Judge Shaw
William S Shires QC
Judge Sheppard
Sarah J Simmonds
M Singh
Judge Simpson
Bruce Slane
Hon Justice Smellie
Chief Inspector Dave C Smith
Judge N F Smith
Judge Smith
Maui Solomon
Judge Somerville
Judge Spear
Megan Spense 
R J Stapleton
Anne Stevens
Lyn L Stevens
C Stevenson-Wright
B Stewart
K Stone
Annette Sykes
Te Atawhai Taiaroa
Professor Colin Tait 
Professor Colin Tapper
Dr G D S Taylor
N Taylor
Georgina Te Heu Heu
Judge Thomas
Judge Thompson
Hon Sir Thomas Thorp
Gregory J Thwaite
Yvette Tinsley
Rt Hon Justice Tipping
Edwin A Tollefson
Judge Tompkins
Judge Toomey
Jim Tucker
Garry Turkington
Stephen Turner
Judge Twaddle
Frith Tweedie
Jeff Tyler
Judge Unwin
B D Vanderkolk 
Noel Vautier
David Venables
Freda Walker
Tony Walker
Judge Walsh
Judge Watson
Hon W A N Wells
Whetumarama Wereta
Reverend Stan J West
Tom Weston
Judge Whitehead
Peter Whiteside
Leah Whiu
Helen Wild
Michele Wilkinson
Professor Glanville Williams QC
Karina Williams
P A Williams QC
Cardinal T Williams
Hon Justice Williamson
Judge Willy 
Bill Wilson
David Wilson QC
T Wilton
Judge Wolff
Victor Wu
G J Wyatt
Chief District Court Judge Young 
Hon Justice Young
Professor Warren Young
Dr Karen Zelas
Stephen Zindel
Groups
Accident Rehabilitation and Compensation Insurance Corporation
Aotearoa Network of Psychiatric Survivors
Arbitrators’ Institute of New Zealand
Association of Consulting Engineers
Auckland Counsel for Civil Liberties Inc
Auckland Healthcare, Medical Advisory Committee
Auckland Institute of Technology Journalism School
Auckland Lesbian & Gay Lawyers Group Inc
Auckland Unemployed Workers’ Rights Centre
Auckland Women Lawyers Association
Awhina Wahine Wellington Inc
Baptist Union of New Zealand
BDO Hogg Young Cathie
Bible Society in New Zealand
Births Deaths and Marriages (Department of Internal Affairs)
Brooker and Friend
Canterbury District Law Society
Canterbury University – School of Journalism
Capital Coast Health
Catholic Communications
Children Young Persons and their Families Service
Children’s Rights Campaign
Commerce Commission
Commissioner for Children
Commonwealth Press Union
Corporate Lawyers Association
Corporate Security
Criminal Bar Association of New Zealand
Crown Law Office 
Deaf Association of Aotearoa 
Deloitte Touche Tohmatsu
Department for Courts 
Department of Corrections
Department of Education
Department of Internal Affairs
Department of Justice
Department of Social Welfare
District Court Judges Committee
District Court Judges Working Party
Doctors for Sexual Abuse Care
Dunedin Community Law Centre
Forum of Chief Legal Advisers
Gay Auckland Business Association
Gaze Burt Barristers & Solicitors
General Practitioners Association
Glaistor Ennor Barristers & Solicitors
Grey Lynn Neighbourhood Law Office
Hamilton Abuse Intervention Pilot Project
Hamilton Community Group
Health & Disability Commissioner
Healthcare Otago
High Court Judges Committee (Hearsay)
High Court Judges Working Party
Human Rights Commission
Hunter Ralfe
IHC New Zealand Inc
Inland Revenue Department
Institute of Chartered Accountants
Institute of Directors in New Zealand Inc
Interprofessional Committee on Liability
Legal Services Board
Mangere Law Centre 
Mäori Land Court
Marriage Guidance of New Zealand
Methodist Church of New Zealand
Ministry of Agriculture and Fisheries
Ministry of Consumer Affairs
Ministry of Health
Ministry of Justice
Ministry of Pacific Island Affairs
Ministry of Women’s Affairs
Ministry of Youth Affairs
Morley Security Group 
National Collective of Independent Women’s Refuges
National Collective of Rape Crisis and Related Groups of Aotearoa Inc
National Council of Women/ Te Kaunihera Wahine O Aotearoa 
National Spiritual Assembly of the Baha’is of New Zealand
New Zealand Broadcasting School
New Zealand College of Clinical Psychologists
New Zealand Council for Civil Liberties
New Zealand Council of Victim Support Groups
New Zealand Customs Department
New Zealand Defence Force
New Zealand Law Society
New Zealand Law Society (Civil Litigation and Tribunals Committee)
New Zealand Law Society (Commercial and Business Law Committee)
New Zealand Law Society (Criminal Law Committee)
New Zealand Law Society (Evidence Law Committee)
New Zealand Law Society (Evidence Project Committee)
New Zealand Medical Association
New Zealand Police
New Zealand Police Association 
New Zealand Private Physiotherapists’ Association
New Zealand Psychological Society
New Zealand Society of Accountants
New Zealand Society of Physiotherapists Inc
Nga Whiitiki Whãnau Ahuru Mõwai O Aotearoa/ National Collective of Rape Crisis and Related Groups of Aotearoa Inc
Office of the Ombudsman
Office of the Privacy Commission
Otago University School of Law
Otago Women Lawyers Society
Paediatric Society of New Zealand (Child Abuse and Neglect Sub-Committee)
Patients Rights Advocacy
Plunket Society
Rape Crisis
Reserve Bank of New Zealand
Royal New Zealand College of General Practitioners
Royal New Zealand Plunket Society
Scottish Law Commission
Securities Commission
Simpson Grierson Butler White
Te Puni Kokiri
Telecom Risk Security Group 
TVNZ Group
Wellington Chamber of Commerce
Wellington Community Law Centre
Wellington District Law Society
Wellington District Law Society - Women in the Law Committee
Wellington Polytechnic - School of Journalism
Wellington Women Lawyers Association
Women’s Community Law Reform Network
Women’s Electoral Lobby
Youth Law Project
Appendix B:
Consequential repeals and 
re-enactments: the rationale
Repeals
B1	Schedule 2 of the Evidence Code lists the enactments that
	will be repealed when the Evidence Code is enacted. The majority of the enactments listed are evidence law provisions that for the most part have been replaced by provisions in the Evidence Code (see the Comparative Table at the end of this Appendix). Provisions from other Acts that will be repealed and replaced by Code provisions are:
•	section 344D of the Crimes Act 1961, replaced by s 112 of the Code (see para 490 of the Report);
•	section 369 of the Crimes Act 1961, replaced by s 9 of the Code (see para 31 of the Report);
•	section 28 of the Juries Act 1981, replaced by s 82 of the Code (see paras 376–379 of the Report); and
•	section 13 of the Oaths and Declarations Act 1957 (see para 356 of the Report).
B2	A number of existing Evidence Act provisions will not be replaced by specific sections in the Code. As the Comparative Table indicates, a number of these will be addressed more generally by the scheme of the relevant Part or Subpart of the Code. For example, the documentary evidence provisions of the Evidence Act 1908 (ss 27–47), Evidence Amendment Act 1945, Evidence Amendment Act 1952 and Evidence Amendment Act 1990 have been replaced by a much simplified approach to documentary evidence and evidence of foreign law (see the discussion in chapters 19 and 20 of this Report).
B3	Leaving aside the area of documentary evidence, the Evidence Code does not specifically address the subject matter of a number of other existing provisions, although the Code rules are flexible enough to accommodate the issues addressed by these existing provisions. The sections that will be repealed without a specific replacement are:
Sections 3, 4 and 16 of the Evidence Act 1908
B4	These provisions, which address specific issues of compellability, are no longer necessary because of the Code’s general rule that all people are eligible and compellable, with very few exceptions (see the discussion in chapter 12 of the Report). The Commission’s consultation with the New Zealand Customs Service indicated that s 16 of the Evidence Act 1908 in particular is not relied on in practice and can safely be repealed.
Section 19 of the Evidence Act 1908
B5	This section deals with the method of establishing the genuineness of handwriting. The Commission sees no particular need for such a provision, which is really a matter of expert evidence, and considers it should be repealed.
Section 23B of the Evidence Act 1908 
B6	This section was enacted by s 3 of the Crimes Amendment Act 1979. Its purpose is to allow the admission of evidence obtained by the police under s 216B(3) of the Crimes Act 1961, which was enacted under s 2 of the same Act. Section 216B(3) creates an exception to the offence of intercepting private communications by means of listening devices.
B7	The scope of s 216B(3) is quite narrow. The exception relates to police use of listening devices such as directional microphones or bugs, when an emergency arises in which a person is threatening to kill or seriously injure others in his or her immediate vicinity. The paradigm situation s 216B(3) was intended to cover is a hostage crisis.91  The use of listening devices must be authorised by a commissioned police officer who believes on reasonable grounds that the listening device will help protect the hostage. Section 216B(3) does not allow the police to intercept telephone calls, and does not apply to participant surveillance, which is dealt with separately under s 216B(2)(a). Evidence gathered by means of participant surveillance is in any case admissible under s 25(4) of the Misuse of Drugs Amendment Act 1978 and s 312M(4) of the Crimes Act 1961.
B8	Section 23B of the Evidence Act 1908 was enacted because Parliament considered that evidence gathered under s 216B(3) would be inadmissible under s 25(1) of the Misuse of Drugs Amendment Act 1978. Section 25(1) of the Misuse of Drugs Amendment Act 1978 provides that private communications intercepted by listening devices are inadmissible unless the interception has been authorised under that or any other Act. The same prohibition appears under s 312M(1) of the Crimes Act 1961.
B9	There seem to have been no cases in which the police have invoked the power to use listening devices conferred by s 216B(3) of the Crimes Act 1961. The Court of Appeal discussed the provision in R v Menzies [1982] 1 NZLR 40, 45–46 and R v Stack [1986] 1 NZLR 257, 260–261, but the discussion in each case was obiter.
B10	In considering whether it is necessary to re-enact s 23B of the Evidence Act 1908, two issues arise. First, it is by no means clear that evidence the police obtain under s 216B(3) would be inadmissible but for s 23B. Both s 312M(1) of the Crimes Act 1961 and s 25(1) of the Misuse of Drugs Amendment Act 1978 provide that evidence acquired by means of listening devices is only inadmissible if the interception is not authorised under those Acts, or any other enactment. Technically, s 216B(3) of the Crimes Act 1961 is not positive authorisation for the use of listening devices; rather, it is an exception to the offence created under s 216B(1). Permitting the police to engage in conduct that would otherwise be illegal does, however, create a presumption of statutory authority for the use of listening devices, and any evidence obtained by this means would be admissible under s 25 of the Misuse of Drugs Amendment Act 1978 or s 312M(1) of the Crimes Act 1961.
B11	The second issue is the effect of s 23B(2). Section 23B(2) provides that evidence obtained in accordance with s 216B(3) of the Crimes Act 1961 cannot be admitted if it is inadmissible under any enactment apart from s 25 of the Misuse of Drugs Amendment Act 1978. This means that although the general rule on the inadmissibility of evidence obtained by listening devices under s 25(1) of the Misuse of Drugs Amendment Act 1978 has no effect, the same general rule under s 312M(1) of the Crimes Act 1961 does apply. The evidence must therefore be admissible under s 312M(1), or it cannot be admitted at all.
B12	In light of these observations, s 23B of the Evidence Act 1908 is at best unnecessary and at worst completely ineffective. If s 216B(3) of the Crimes Act 1961 confers an authority to intercept private communications in terms of s 25(1) of the Misuse of Drugs Amendment Act 1978 and s 312M(1) of the Crimes Act 1961, then s 23B is unnecessary. The evidence is admissible regardless. If, however, s 216B(3) does not confer such an authority, then the evidence is inadmissible under the same sections. In this case s 23B is ineffective because it does not prevent the evidence being excluded by operation of s 312M(1) of the Crimes Act 1961.
B13	The Commission therefore considers that in its current form s 23B of the Evidence Act 1908 is effectively redundant. It should not be re-enacted as part of the Evidence Code. Any doubts about the admissibility of evidence gathered under s 216B of the Crimes Act 1961 should be resolved by amending that Act.
Section 47 of the Evidence Act 1908 
B14	This section deals with the ability of the court to impound documents. The Law Commission’s research into the current operation of this section indicated that it is rarely relied on, and the court is able to impound documents appropriately by exercising its inherent powers. The Commission concluded that there is no need to retain the specific provision.
Sections 47A–47C of the Evidence Act 1908 
(as inserted by the Evidence Amendment Act (No 2) 1995) 
B15	These sections deal with the production of bank records and the compellability of bank officers to produce bank records. The Law Commission proposed repealing these sections in Evidence Law: Privilege (NZLC PP23, 1994), paras 389–390. The Commission confirms this view. The matters dealt with in ss 47A to 47C are covered by the Commission’s hearsay proposals and s 117, which facilitates the production of documents without the need to call a witness. The Commission also considers that the reasons for repeal given in the discussion paper remain relevant:
Section [47C] may have been desirable when proof of such matters by producing bank statements was much less common than it is now, and production of the original bank books could have inconvenienced the bank through temporary loss of its records and the demands upon its staff time. But these considerations now apply to a much lesser extent, and there is no reason why a bank should be treated differently from other commercial institutions whose business records are relevant in court proceedings.
Section 19 of the Evidence Amendment Act (No 2) 1980 
B16	This section deals with the power of a court or judge in hearing an appeal from a decision to admit hearsay evidence. The Commission is of the view that such a section, enacted as part of a particular approach to hearsay evidence, will no longer be necessary because of the Code’s treatment of hearsay, and recommends its repeal without replacement.
Section 30 of the Evidence Amendment Act (No 2) 1980
B17	This section, dealing with evidence introduced to prove the absence of sexual relations between a husband and wife during a certain period, was enacted to address a particular historical circumstance. The Commission considers that the section is of no contemporary value and recommends its repeal.
Re-enactments
Evidence taken overseas
B18	Chapter 19 of the Report outlines the Commission’s approach to matters of foreign law. The Commission recommends that the current provisions in the Evidence Act that deal with evidence obtained in overseas jurisdictions should be re-enacted into a separate statute when the Evidence Code is enacted. These provisions are:
•	Sections 48–48J of the Evidence Act 1908;
•	Sections 37–49 of the Evidence Amendment Act (No 2) 1980.
Evidence obtained in Australia
B19	A number of existing provisions deal with gathering evidence in Australia for use in New Zealand and vice versa (Evidence Amendment Acts 1994 and 1995). The Commission recommends that these provisions also be re-enacted into one Act specifically related to the legal position between Australia and New Zealand. Sections 9 and 10 of the Evidence Amendment Act 1990 should also be included in this new Act, which may appropriately be entitled the Evidence and Procedure (Australia) Act.
Comparative Table:
Current Evidence Acts and Code provisions
The following table lists provisions of the Evidence Act
	1908 and subsequent amendment Acts and the comparable rules in the Evidence Code.
Evidence Act 1908
Act 	Section heading	Code	Section heading

Select bibliography
This bibliography only includes publications referred to in this Report. A much more extensive bibliography, which reproduces the bibliographies to the evidence preliminary papers and also material consulted subsequent to the publishing of the preliminary papers, is available on the Law Commission’s web site at http://www.lawcom.govt.nz.
REPORTS
Australian Law Reform Commission, Evidence Law (Interim Report 26, Canberra, 1985)
Canadian Federal and Provincial Task Force, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (Carswell, Toronto, 1982)
Canadian Law Reform Commission, Report on Evidence (Report 1, Ottawa, 1975)
Child Witnesses in the Court Process: A Review of Practice and Recommendation for Change: Report to the Courts Consultative Committee from the Working Party on Child Witnesses (Department for Courts, Wellington, 1996)
Commission of Inquiry into Certain matters Relating to Taxation, Report of the Wine-Box Inquiry (GP Publications, Wellington, 1997)
Committee of Experts on Tax Compliance, Tax Compliance: Report to the Treasurer and Minister of Revenue (New Zealand Government, Wellington, 1998)
Criminal Law Revision Committee (England and Wales), Evidence (General) (11th Report, London, HMSO, 1972)
Evidence Law Reform Committee, Report on Corroboration (Wellington, 1984)
Home Office, Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable and Intimidated Witnesses in the Criminal Justice System (London, 1998)
Law Commission (England and Wales), Evidence in Criminal Proceedings: Hearsay and Related Topics: A Consultation Paper (CP 138, HMSO, London, 1995)
Law Commission, Criminal Evidence: Police Questioning (NZLC PP21, 1992)
Law Commission, Crown Liability and Judicial Immunity (NZLC R37, 1997)
Law Commission, Electronic Commerce Part One: A Guide for the Legal and Business Community (NZLC R50, 1998)
Law Commission, Evidence Law: Character and Credibility (NZLC PP27, 1997)
Law Commission, Evidence Law: Codification (NZLC PP14, 1991)
Law Commission, Evidence Law: Documentary Evidence and Judicial Notice (NZLC PP22, 1994)
Law Commission, Evidence Law: Expert Evidence and Opinion Evidence (NZLC PP18, 1991) 
Law Commission, Evidence Law: Hearsay (NZLC PP15, 1991)
Law Commission, Evidence Law: Principles for Reform (NZLC PP13, 1991)
Law Commission, Evidence Law: Privilege (NZLC PP23, 1994)
Law Commission, Hearsay Evidence (NZLC PP10, 1989)
Law Commission, Succession Law: Wills Reforms (NZLC MP2, 1996)
Law Commission, The Evidence of Children and other Vulnerable Witnesses (NZLC PP26, 1996)
Law Commission, The Privilege against Self-incrimination (NZLC PP25, 1996)
Law Commission, Total Recall? The Reliability of Witness Testimony (NZLC MP13, 1999)
Law Reform Commission (Ireland), Report on Oaths and Affirmations (LRC 35, Dublin, 1990)
New South Wales Law Reform Commission, The Right to Silence (Discussion Paper 41, Sydney, 1998)
Ontario Law Reform Commission, Report on the Law of Evidence (Toronto, 1976)
Scottish Law Commission, Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149, HMSO, Edinburgh, 1995)
Torts and General Law Reform Committee, Hearsay Evidence (Wellington, 1969)
Torts and General Law Reform Committee, The Rule in Hollington v Hewthorn (Wellington, 1972)
TEXTS
Byrne and Heydon (eds), Cross on Evidence (5th ed, Butterworths, Sydney, 1996)
Cutler, Berman, Penrod and Fisher, “Conceptual, practical and empirical issues associated with eyewitness identification test media” in Ross, Read and Toglia (eds), Adult Eyewitness Testimony: Current trends and developments (Cambridge University Press, New York, 1994)
Cutler and Penrod, Mistaken Identification: the Eyewitness, Psychology and the Law (Cambridge University Press, New York, 1995)
Dicey and Morris, The Conflict of Law (12th ed, Sweet & Maxwell, 1993)
Fisher and Cutler, “Relation between consistency and accuracy of eyewitness testimony” (in press), cited in Cutler and Penrod, Mistaken Identification: the Eyewitness, Psychology and the Law (Cambridge University Press, New York, 1995)
Friedman, “Confrontation Rights of Criminal Defendants” in Nijboer and Reintjes (eds), Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (Open University of the Netherlands, 1997) 533
Garrow and Casey’s Principles of the Law of Evidence (Butterworths, Wellington, 1996)
Loftus, Eyewitness Testimony (Harvard University Press, Cambridge, 1979)
Mathieson (ed), Cross on Evidence (CD-Rom Ed, Butterworths, Wellington, 1998)
Paciocco and Stuesser, The Law of Evidence (Irwin Law, Ontario, 1996)
Shepherd, Ellis and Davies, Identification Evidence: A Psychological Evaluation (Aberdeen University Press, Aberdeen, 1982)
Tapper (ed), Cross on Evidence (7th ed, Butterworths, London, 1990), 312
The Rules of Professional Conduct for Barristers and Solicitors (5th ed, New Zealand Law Society, 1998)
Wells, Seelaw, Rydell and Luus, “Recommendations for properly conducted line-up identification tasks”, in Ross, Read and Toglia (eds), Adult Eyewitness Testimony: Current Trends and Developments (Cambridge University Press, New York, 1994) 229
Wigmore, Evidence (Vol 8, McNaughton Rev, 1961) 
Wigmore, Evidence (Vol 7, Chadbourn, 1978)
ARTICLES
Bothwell, Deffenbacher and Brigham, “Correlation of Eyewitness Accuracy and Confidence: Optimality Hypothesis Revisited” (1987) 72 Journal of Applied Psychology 691
Branston, “The Drawing of an Adverse Committal from Silence” [1998] Crim LR 189
Bruck, Ceci and Hembrooke, “Reliability and Credibility of Young Children’s Reports: From Research to Policy and Practice” (1998) 53(2) American Psychologist 136
Buckhout, “Eyewitness Testimony” (1974) 231 Scientific American 23
Carter, “Hearsay: Whether and Whither?” (1993) 109 LQR 573
Colvin and Akester, “Directions for Silence” (1995) 145 New Law Journal 1621
Cutler and Penrod, “Forensically Relevant Moderators of the Relation between Eyewitness Identification Accuracy and Confidence” (1989) 74 Journal of Applied Psychology 650
Cutler, Penrod and Martens, “The Reliability of Eyewitness Identification: the Role of System and Estimator Variables” (1987) 11 Law and Human Behaviour 223
Dockray, “The Inherent Jurisdiction to Regulate Civil Proceedings” (1997) 113 LQR 120
Green and Shane, “Science, Reason, and Facilitated Communication” (1994) 19 (3) Journal of the Severely Handicapped 151
Hampton, “Recovered Memory Syndrome v False Memory Syndrome” [1995] NZLJ 154
Holdenson, “The Admission of Expert Evidence of Opinion as to the Potential Unreliability of Evidence of Visual Identification” (1988) 16 Melb UL Rev 521
Jacobson, Mulick and Schwartz, “A History of Facilitated Communication: Science, Pseudoscience, and Antiscience” (1995) 50 (9) American Psychologist 750
Justice Sheppard (Fed Ct Aust) “Court Witnesses – a Desirable or Undesirable Encroachment on the Adversary System?” (1982) 56 ALJ 234
Létourneau and Cohen, “Codification and Reform: Some Lessons from the Canadian Experience” (1989) 10 Statute Law Review 183
McEwan, (1998) 2(1) International Journal of Evidence and Proof 32
Montee, Miltenberger and Wittrock, “An Experimental Analysis of Facilitated Communication” (1995) 28 (2) J of Applied Behaviour Analysis 189
Munday, “Inferences from Silence and European Human Rights Law” [1996] Crim LR 370
Palmer, “The Reliability-Based Approach to Hearsay” (1995) 17 Sydney LR 322
Phillips, “Refreshing Memory in the Witness Box” (1984) 63 ALJ 113
Pigott, Brigham and Bothwell, “A Field Study of the Relationship between Quality of Eyewitnesses’ Descriptions and Identification Accuracy” (1990) 17 Journal of Police Science and Administration 84
Roberts, “All the Usual Suspects: A Critical Appraisal of Law Commission Consultation Paper No 141” [1997] Crim LR 75
Salken, “To Codify or Not to Codify – That is the Question: A Story of New York’s Efforts to Enact an Evidence Code” (1992) 58 Brooklyn LR 641
Stevens and Olsen, “Law Commission Preliminary Papers 13–15 – A commentary on the proposed reform of the Law of Evidence” [1992] NZLJ 30
Wells and Leippe, “How do Triers of Fact Infer the Accuracy of Eyewitness Identifications? Using memory for peripheral detail can be misleading” (1981) 66 Journal of Applied Psychology 285
Wells and Luus, “Police Line-ups as Experiments: Social methodology as a framework for properly conducted line-ups” (1990) 16 Personality and Social Psychology Bulletin 106
Woocher, “Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification” (1977) 29 Stanford L Rev 969
Zuckerman, “The Futility of Hearsay” [1996] Crim LR 1
UNPUBLISHED MATERIAL
Petition of Dame Barbara Goodman (1990/249) that the religious oath be replaced by a non-religious undertaking (Referred to in the Report of the Justice and Law Reform Select Committee for 1990)

Evidence Report 55 – Volume 2

Evidence Code and Commentary

Evidence Code & Commentary 
s 1 EVIDENCE
Part 1
Preliminary 
1 Title 
This Act is the Evidence Code 1999. 
2 Commencement 
This Act comes into force on [date to be inserted]. 
3 Act to bind the Crown 
This Act binds the Crown. 

evidence code and commentary 
Part 1
Preliminary 
Section 1 
C1 The significance of the title lies in the fact that a code is 
• comprehensive in that it deals with the entire body of law in its subject area; 
• systematic in that all of its parts form a coherent and integrated body; 
• pre-emptive in that it displaces all other law in its subject area, except what the Code itself preserves; 
• based on principles that inform the application of the rules and provide the basis for the future development of the law. 
Section 2 
C2 This Act starts to operate on [date to be inserted]. 
Section 3 
C3 The Crown must comply with the provisions of this Code. 
evidence code and commentary

s 4 EVIDENCE
4 Definitions and interpretation 
In this Act 
Act does not include rules or regulations. 
admission in relation to civil proceedings, means a statement that is 
(a) made by a person who is or becomes a party to a proceeding; and 
(b) adverse to the person's interest in the outcome of the proceeding. 
associated defendant is defined in section 75 for the purposes of that section. 
child means a person under the age of 17 years. 
child complainant means a complainant who is a child when the proceeding commences. 
circumstances relating to the statement is defined in section 16 for the purposes of Subpart 1 of Part 3. 
clinical psychologist is defined in section 60 for the purposes of that section. 
communication assistance means oral or written interpretation of a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication with a person who 
(a) does not have sufficient proficiency in the English language to understand the court proceedings or give evidence; or 
(b) has a communication disability. 
conviction means 
(a) in sections 49 to 51, a subsisting conviction of 
(i) a New Zealand court or a court-martial conducted under New Zealand law in New Zealand or elsewhere; or 
(ii) a court established by, or court-martial conducted under, the law of Australia, United Kingdom, Canada or any other foreign country in respect of which an Order in Council has been made under section 124(4); and 
(b) in sections 123 and 124, a subsisting conviction of a New Zealand or foreign court or a court-martial conducted under New Zealand or foreign law, 
and includes a conviction before the commencement of this Code. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 
C4 This section contains all the definitions used in this Code, or refers to definitions that are elsewhere in the Code. 
C5 The exclusion of rules and regulations from the definition of Act means that it is immaterial whether the Acts Interpretation Act 1924 or the proposed new Interpretation Act is in force. 
C6 The definition of admission is only relevant in civil proceedings _ see s 36 (admissions in civil proceedings). The definition means that an admission is admissible against a party only if that party has made it. 
C7 The definitions of child and of child complainant follow s 23C(b) of the Evidence Act 1908. A child complainant must be under the age of 17 at the commencement of the proceeding rather than at the beginning of the actual hearing of the trial. Under s 12 of the Summary Proceedings Act 1957, a criminal proceeding commences when an information is laid. 
C8 The definition of communication assistance is new. It is wider in meaning than the concept of interpretation or translation, and is sufficiently general to encompass current and future forms of assistance appropriate to all communication needs. "Communication disability" is not defined, but its ordinary meaning is adequate to include all those who are hearing-impaired, as well as those who can hear well but have difficulty speaking. Communication assistance does not, however, include the function of intermediaries, which some jurisdictions provide for, involving the rephrasing of questions to and answers from a witness. 
C9 No specific reference is made to the Mäori language in this definition because the relevant Code provisions are subject to the Mäori Language Act 1987 _ s 81(8). A person who wishes to speak Mäori in court is able to do so (and to receive assistance from an interpreter) without recourse to this Code, because s 4 of the Mäori Language Act 1987 states that any party or witness has a right to speak Mäori in legal proceedings whether or not they are able to understand or communicate in English. 
C10 Conviction is defined to exclude a conviction that a court has overturned or one that is the subject of a free pardon by Her Majesty or the Governor-General. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
copy in relation to a document, includes a copy of a copy and a copy that is not an exact copy of the document but is identical to the document in all relevant respects. 
counsel is defined in section 74 for the purposes of that section. 
country includes a state, territory, province or other part of a country. 
document means any record of information and includes 
(a) anything on which there is writing or any image; and 
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and 
(c) anything from which sounds, images or writing can be reproduced, with or without the aid of anything else. 
domestic violence in section 95 has the meaning given in section 3 of the Domestic Violence Act 1995. 
drug dependency is defined in section 60 for the purposes of that section. 
employed legal adviser is defined in section 53 for the purposes of Part 4. 
enforcement agency means the Police of New Zealand and a body or organisation which has a statutory responsibility for the enforcement of an enactment. 
expert means a person who has specialised knowledge or skill based on training, study, or experience. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C11 The definition of copy is relevant to s 122 (authenticity of public documents) and s 124 (proof of conviction by fingerprints). Whether something is a copy in terms of the definition depends on the purpose for which it is proffered. Thus, a black and white photocopy of a document printed in colour or a typed copy of a hand-written original would both be within this definition, if the purpose is to convey the contents of the document, because the copy would be identical in content to the original. If the purpose is to convey the colour or form of the original, however, neither would be a copy within the definition. 
C12 country is defined to include a state, territory, province and other part of a country. It includes, for example, Australian states and Canadian provinces. 
C13 document is defined in wide terms to mean any record of information. The intention is to ensure that all information (paper-based or otherwise) which might need to be put in evidence in court can in fact be produced. The definition covers a diverse range of documents, including all written documents, books, maps, plans, graphs, photographs, motion picture films, audio recordings, videotapes, compact disks, microfilm, computer disks and electronic data stored on a hard disk. 
C14 enforcement agency is defined to include not just the Police, but also organisations like the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department which have a statutory responsibility for enforcing an enactment: for example, the Customs and Excise Act 1996. 
C15 The definition of expert codifies the common law rule that an expert must be a person qualified by specialised knowledge or skill based on training, study or experience. The qualification requirement is the essential basis for admitting expert evidence. As with the common law rule, it is intended to be wide and flexible. Thus a formal qualification is not the only way of proving that a person possesses the requisite knowledge and skill. In Ministry of Agriculture and Fisheries v Hakaria and Scott [1989] DCR 289, 294, the Court recognised a kaumätua as an expert competent to give expert evidence based on Mäori tradition and custom. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
expert evidence means the evidence of an expert based on the specialised knowledge or skill of the expert and includes evidence given in the form of an opinion. 
fingerprint examiner is defined in section 124 for the purposes of that section. 
foreign country means a country other than New Zealand. 
formal procedure is defined in section 47 for the purposes of that section. 
give evidence means to give evidence 
(a) in the ordinary way, as described in section 83; or 
(b) in an alternative way, as provided for by section 105; or 
(c) in a way provided for under any other enactment. 
good reasons is defined in section 47 for the purposes of that section. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C16 expert evidence is evidence offered by a properly qualified expert that is within that expert's area of expertise. The court is required to consider both whether the witness has the requisite knowledge and skill, and whether the proposed testimony is within the witness's competence. Expert evidence may consist of fact or opinion, or a mixture of both. 
C17 give evidence is defined widely to include all the forms of giving evidence provided for in the Code and in other enactments. Paragraph (c) includes evidence taken on commission, or under an order for examination of a witness under Rule 369 of the High Court Rules or Rule 378 of the District Court Rules (see also s 55 of the District Courts Act 1947). 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
hearsay means a statement that 
(a) was made by a person other than a witness; and 
(b) is offered in evidence at the proceeding to prove the truth of its contents. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C18 hearsay The definition of "hearsay" changes the law in that evidence a testifying witness gives about his or her own previous statement will no longer be regarded as hearsay. Evidence one testifying witness gives about a previous statement made by another testifying witness is also no longer regarded as hearsay. Such statements are admissible unless excluded by s 37 (previous consistent statements rule). 
C19 The main reason for not allowing one person to give evidence about another person's statement is because of the lack of opportunity to test the reliability of the statement in cross-examination. But if the maker of the statement is able to be cross-examined (the second limb of the definition of witness), then this objection no longer applies. A witness includes a person who gives evidence in any way permitted by this Code or any other enactment, including evidence given by means of statements pre-recorded on video or in an affidavit, provided that the person is available for cross-examination in the proceeding. The admissibility of a previous statement made by a witness is governed by the previous consistent statements rule stated in s 37. If the statement was made by a person who is not able to be cross-examined, the statement is hearsay and must comply with the hearsay rules. 
C20 The definition of "hearsay" retains the common law requirement that to be hearsay, the statement must be offered to prove the truth of its contents. It is important, as it was under the common law, to know the purpose for which the statement is offered. Take the case where a witness testifies: "Bob told me the light was green for the yellow truck." If this evidence is offered to prove merely what Bob said, it is not hearsay because it is a report by the witness of something the witness personally heard. But if the evidence is offered to prove the truth of what Bob said _ namely, that the light was green for the yellow truck _ then it is hearsay because the witness did not personally see the light or the truck but is relying on what Bob told him or her. 
C21 The definition of "hearsay" makes no distinction between first-hand hearsay and multiple hearsay, but this will be one factor to take into account when examining the circumstances relating to the statement in order to assess reliability under ss 18 (hearsay in civil proceedings) and 19(a) (hearsay in criminal proceedings). 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
hearsay rule means the rule stated in section 17. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C22 Under the definition, only a statement can amount to hearsay. "Statement" is defined as an assertion or non-verbal conduct intended as an assertion. Under the Code, non-verbal conduct not intended as an assertion _ sometimes called an implied assertion _ is not a statement, and therefore is not hearsay. An example often discussed is the action of a ship's captain in taking his entire family on a voyage in his ship (Wright v Tatham (1837) 7 Ad & El 313, 388; 112 ER 488, 516). The captain's action no doubt implies a belief in the seaworthiness of his ship, but it is not a statement for the purpose of the hearsay rules. A witness should be able to give direct evidence that he saw the captain take his family on the voyage. What the captain's action says about his belief in the ship's seaworthiness is a matter of inference for the fact-finder. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
hostile in relation to a witness, means a witness who 
(a) exhibits, or appears to exhibit, a lack of truthfulness when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or 
(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or 
(c) refuses to answer questions or deliberately withholds evidence. 
incriminate means to provide information that is reasonably likely to lead to the criminal prosecution of a person. 
informant is defined in section 66 for the purposes of that section. 
information in sections 61 to 64 means a statement of fact or opinion which is given, or is to be given, 
(a) orally; or 
(b) in a document that is prepared or created after and in response to a requirement from the person requiring the information, but not for the principal purpose of avoiding criminal prosecution under New Zealand law. 
informer is defined in section 65 for the purposes of that section. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C23 The definition of hostile clarifies the law in defining a hostile witness in terms of both the quality of the witness's evidence and the apparent attitude of the witness to the party who called him or her. A party who has permission will be able to cross-examine a hostile witness about a previous inconsistent statement _ s 94 (cross-examination by party of own witness) and s 96 (cross-examination on previous statements of witnesses). See s 96 for when such a statement must be shown to the witness. 
C24 The definition of incriminate does not include providing information likely to expose a person to liability for a civil penalty. 
C25 The definition of information applies only to ss 61 to 64, which concern the privilege against self-incrimination. In other sections of the Code, "information" has its ordinary meaning. According to the definition of "information", the privilege against self-incrimination will apply only to oral statements and to newly created documents (including video and audio recordings), admitted as testimonial statements, rather than as exhibits. The definition is intended to exclude the following from the ambit of this privilege: 
• real evidence admitted in evidence as an article rather than as a statement; 
• documents already in existence at the time the demand for information is made. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
international organisation means an organisation of states or governments of states or an organ or agency of such an organisation, and includes the Commonwealth Secretariat. 
interpreter includes a person who provides communication assistance to a defendant or a witness. 
journalist is defined in section 66 for the purposes of that section. 
judge includes a Justice of the Peace, a tribunal and a community magistrate. 
leading question means a question which directly or indirectly suggests a particular answer to the question. 
legal adviser is defined in section 53 for the purposes of Part 4. 
minister of religion is defined in section 59 for the purposes of that section. 
news medium is defined in section 66 for the purposes of that section. 
offer evidence includes eliciting evidence by cross-examining a witness called by another party. 
official questioning means questioning in connection with the investigation of an offence or a possible offence by or in the presence of 
(a) a police officer; or 
(b) a person whose functions include the investigation of offences. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C26 The definition of international organisation covers all organisations to which states or governments of states belong. For clarity, it specifically mentions the Commonwealth Secretariat. The definition is based on those used in the Official Information Act 1982 and the Privacy Act 1993. 
C27 The wide definition of "communication assistance" means that interpreter has an extended meaning, and includes anyone who enables or facilitates communication in any way. 
C28 The definition of leading question codifies its current meaning. It is a narrower definition than that used in the Evidence Act 1995 (Aust). It does not include questions that assume the existence of a fact about which the witness has given no evidence. This type of question may be dealt with under s 85 (unacceptable questions). 
C29 Offer evidence is an inclusive term expressing the ways in which the questioning party can elicit evidence. It includes not only evidence given in examination in chief and re-examination by a party's witnesses, but also evidence obtained by cross-examining another party's witness, which the questioning was designed to elicit. Thus, if a defendant in a criminal proceeding elicits evidence in support of his or her truthfulness or propensity by cross-examining a prosecution witness, this will enable the prosecution to retaliate by offering evidence of the defendant's convictions relevant to truthfulness under s 40(2) or evidence of the defendant's propensity under s 43(2). 
C30 The term official questioning is limited to questioning by or in the presence of a police officer or person whose functions include investigating offences. The latter category will include officials conducting investigations in order to enforce an enactment, such as customs officers or fisheries officers, and persons such as insurance investigators or store security staff. The width of this category means greater protection for a defendant's right of silence before trial under ss 32 and 33. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
opinion evidence means an opinion offered in evidence tending to prove or disprove any fact. 
opinion rule means the rule stated in section 21. 
party means a party to a proceeding. 
previous statement means a statement made by a witness at any time other than at the hearing at which the witness is giving evidence. 
previous consistent statements rule means the rule stated in section 37. 
proceeding means a proceeding conducted by a court. 
professional legal services is defined in relation to certain kinds of legal advisers in section 55 for the purposes of that section. 
propensity evidence means evidence of 
(a) the reputation or disposition of a person; or 
(b) acts, omissions, events, or circumstances with which a person is alleged to have been involved, 
which tends to show that person's propensity to act in a particular way or to have a particular state of mind, but does not include evidence of an act or omission which is itself one of the elements of the offence for which the person is being tried or the cause of action in the proceeding. 
propensity rule means the rule stated in section 42. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C31 The definition of opinion evidence is limited to opinion evidence offered to prove or disprove any fact. Evidence offered to prove that a person held a particular opinion is not the usual meaning given to "opinion evidence", and is excluded by the definition. 
C32 Under the Code, statements a witness makes before the hearing at which the witness testifies are no longer regarded as hearsay. Such statements are now defined as previous statements. Previous statements are admissible unless they are excluded by s 37 (previous consistent statements rule). 
C33 The definition of proceeding does not include a hearing before an arbitrator. An arbitral tribunal has much greater flexibility than a court in determining the admissibility, relevance and weight of evidence - article 19(1) and (2) of the First Schedule of the Arbitration Act 1996. However, by virtue of article 19(3), witnesses appearing before an arbitral tribunal have the same privileges and immunities as witnesses in proceedings before a court, and will therefore have the privileges and other protection conferred by Part 4 of this Code. 
C34 Propensity evidence is evidence that tends to show a person's tendency to behave in a particular manner. The tendency may be a manifestation of a person's disposition or simply a way of doing certain things that is distinctive of a particular person. The definition includes both aspects. Propensity evidence the prosecution offers about a defendant is covered by s 45, and is narrower than this definition. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
public document means a document that 
(a) forms part of the official records of the legislative, executive or judicial branch of the Government of New Zealand or a foreign country, or of a person or body holding a public office or exercising a function of a public nature under the law of New Zealand or a foreign country; or 
(b) forms part of the official records of an international organisation; or 
(c) is being kept by or on behalf of a branch of government, person, body or organisation referred to in paragraph (a) or (b). 
seal includes a stamp. 
self-incrimination means the provision by a person of information that could reasonably lead to the criminal prosecution of the person. 
sexual case means a criminal proceeding in which a person is charged with or is to be sentenced for 
(a) an offence against any of the provisions of sections 128 to 142A or 144A of the Crimes Act 1961; or 
(b) any other offence against the person of a sexual nature; or 
(c) being a party to the commission of an offence referred to in paragraph (a) or (b); or 
(d) conspiring with any person to commit any such offence. 
statement means 
(a) a spoken or written assertion by a person of any matter; or 
(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C35 The definition of public document includes the official records of the legislative, executive or judicial branches of the Government of New Zealand or a foreign country. The term "legislative" is chosen as one of general import. It includes (because of the wide definition of country contained in the Code) the legislative bodies of the states or provinces of a federal country, as well as any federal legislative bodies. The definition also includes documents forming part of the official records of an international organisation (such as the United Nations and its specialist organs). 
C36 Sexual case is defined in the same way as "cases of a sexual nature" in s 23A(1) of the Evidence Act 1908. 
C37 The definition of statement is limited to spoken or written assertions, and to non-verbal conduct intended as an assertion. The definition reflects the natural meaning of "statement", and does not include non-verbal conduct that is not intended as an assertion, sometimes referred to as an implied assertion. See the discussion in C22. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
third party is defined in section 36 for the purposes of that section. 
truthfulness rules means the rules stated in section 39. 
video record means a recording on any medium from which a moving image may be produced by any means, and includes an accompanying sound track. 
view is defined in section 82 for the purposes of that section. 
visual identification evidence means evidence that is 
(a) an assertion by a person, based wholly or partly on what the person saw, to the effect that a defendant or any other person was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at or about the time the act was done; or 
(b) an account (whether oral or in writing) of such an assertion. 
voice identification evidence means evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence. 
Section 4 continues overleaf 

evidence code and commentary 
Section 4 commentary continued
C38 Video record has been widely defined to include what is currently meant by videotapes and also any means of recording available in the future that preserves both visual and sound images. 
C39 The definition of visual identification evidence extends to cover persons other than defendants whose identification may be crucial to determining the case or a fact in issue in the case: for example, the identification of one of the victims in R v Tamihere [1991] 1 NZLR 195 (CA). Paragraph (a) of the definition covers the common situation where an identifying witness, having given evidence of an out-of-court identification of an alleged offender, points to the defendant in court as the person identified. Paragraph (a) also covers a "dock identification", where the only evidence of a witness's identification of the alleged offender consists of the witness pointing in court to the defendant in the dock. It is anticipated that this way of identifying an alleged offender will be rare. Paragraph (b) covers the more usual case where an alleged offender is identified out of court (for example, in a live parade or photograph montage) and the identifier or another witness gives an account of that identification in court. 
C40 Voice identification evidence means identification of a person by voice, whether heard first-hand (for example, by a person hidden in the same room as the speaker), or over the telephone or in a recording. 
Section 4 commentary continues overleaf 
evidence code and commentary

s 4 EVIDENCE
witness means a person who gives evidence and is able to be cross-examined in a proceeding. 
(2) In this Act 
(a) truthfulness is concerned with a person's intention to tell the truth and is not concerned with accuracy or error; and 
(b) a reference to evidence about a person's truthfulness is to be understood as a reference to evidence that is solely or mainly about the person's truthfulness. 
(3) A hearing commences for the purposes of this Code when the party having the right to begin commences to state that party's case or, having waived the right to make an opening address, calls that party's first witness. 

evidence code and commentary 
Section 4 commentary continued
C41 The definition of witness is intended to cover any person who gives evidence, including parties in civil proceedings and defendants who elect to give evidence in criminal cases, as well as persons whose evidence is taken on a commission. The ability to be cross-examined is an essential feature of being a witness. Thus, to come within the definition of witness, a person who gives evidence in an alternative way (for example, by pre-recorded video) must be available for cross-examination in the proceeding, albeit in an alternative way (for example, by close-circuit television or by videolink). 
C42 Section 4(2)(a) gives truthfulness a narrower focus than credibility, which may also encompass the concept of genuine error through being mistaken. Much of propensity evidence that reflects badly on a person may arguably reflect also on their truthfulness. However, as the evidence is not solely or mainly about their truthfulness, the effect of s 4(2)(b) is that such evidence need not comply with the truthfulness rules. 
C43 Section 4(3) sets out when a hearing commences for the purposes of the Code. It has particular relevance for s 5(3), the effect of which is to apply the Code provisions to all hearings commenced after the commencement date of the Code. 
evidence code and commentary

s 5 EVIDENCE
5 Application 
(1) This Code applies subject to the express provisions of any other Act. 
(2) If any conflict arises between the High Court Rules or the District Courts Rules and this Code, the provisions of this Code prevail. 
(3) This Code applies to all proceedings commenced before, on, or after the commencement of this Code except 
(a) the continuation of a hearing that commenced before the commencement of this Code; and 
(b) any appeal or review arising out of such a hearing. 
Definitions: Act, party, proceeding, s 4. As to when a hearing commences, see s 4(3). 

evidence code and commentary 
Section 5Application 
C44 The effect of s 5(1) is that if a Code provision overlaps with a specific provision in another Act, the provision in the other Act prevails. For example, the admissibility of certificates in blood-alcohol proceedings will continue to be governed by s 75 of the Land Transport Act 1998. A certificate that fails to comply with the requirements of that section will not be admissible by recourse to the hearsay rules in the Code. 
C45 The only exceptions to s 5(1) are the High Court Rules and the District Courts Rules _ s 5(2). The District Courts Rules, unlike the High Court Rules, are not part of an Act, and thus do not prevail over the provisions of the Code; but they have been included in s 5(2) for the sake of clarity. If there is a conflict between the Code and the High Court Rules or the District Courts Rules, the Code prevails. But the High Court Rules and the District Courts Rules will continue to apply to matters not provided for in the Code or where those Rules and the Code provisions can exist side by side without conflict. 
C46 The use of the word "express" in s 5(1) means that a provision in another Act on the same subject matter will prevail over a Code provision, but the other Act or provision does not have to state specifically that it prevails over the Code. 
C47 A proceeding may be made up of a number of hearings: for example, a bail application, application under s 344A of the Crimes Act 1961 or other pretrial application, and the substantive hearing itself. The effect of s 5(3) is that the Code applies to any hearing commenced on or after the Code's date of commencement, even if the proceeding commences before that date. Hearings commenced before the Code comes into operation must be completed under the former law, as must appeals or reviews arising from such hearings. 
evidence code and commentary

s 6 EVIDENCE
Part 2
Purpose, principles and matters of general application 
Subpart 1 _ Purpose 
6 Purpose 
The purpose of this Code is to help secure the just determination of proceedings by 
(a) promoting the rational ascertainment of facts; and 
(b) promoting fairness to parties and witnesses; and 
(c) protecting rights of confidentiality and other important public interests; and 
(d) avoiding unjustifiable expense and delay. 
Definitions: party, proceeding, witness, s 4. 

evidence code and commentary 
Part 2
Purpose, principles and matters of general application 
Subpart 1 _ Purpose 
Section 6Purpose 
C48 Section 6 makes explicit the overriding purpose and objectives of the Code and is of considerable importance to interpreting the entire Code. The primary purpose of the Code reflects the reason for all court proceedings, namely, the just determination of disputes. The Code aims to achieve its primary purpose through the four stated objectives. Sometimes only one of the objectives will be significant, but more often a number will need to be assessed together and, depending on the issue to be decided, balanced against one another. 
C49 Section 6(a)The first objective is to promote fact-finding based on logic and reason. Many trials require the court to decide what actually happened in the past. Trials also require factfinders to analyse and evaluate evidence carefully. 
C50 Section 6(b)The second objective is to help promote procedural fairness. The parties' right to present and defend their cases, the right of a defendant in a criminal proceeding to examine witnesses and the right to silence _ all of which are mentioned specifically in the New Zealand Bill of Rights Act 1990 _ are examples of rights this objective is intended to advance. Section 6(b) also seeks to promote the interests of those who are not parties, such as witnesses and victims. Section 6(b) is intended to have a wide scope and extends beyond procedural rights arising primarily in the trial, to procedural rights arising at other stages of the criminal and civil processes. 
C51 Section 6(c)The third objective is to protect confidential communications made within certain relationships, such as those protected in Part 4 _ Privilege and Confidentiality. It also protects other important public interests, examples being privacy issues and human rights. 
C52 Section 6(d)The fourth objective is to promote efficiency both in time and cost. It is important that trials operate efficiently and speedily, not only for the participants but also for others waiting in the queue. 
evidence code and commentary

s 7 EVIDENCE
Subpart 2 _ Principles and matters of general application 
7 Fundamental principle _ relevant evidence is admissible 
(1) All relevant evidence is admissible in a proceeding except evidence that is inadmissible in accordance with this Code or any other Act or is excluded in accordance with this Code or any other Act. 
(2) Evidence that is not relevant is not admissible in a proceeding. 
(3) Evidence is relevant for the purposes of this Code if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding. 
Definitions: Act, proceeding, s 4. 

evidence code and commentary 
Subpart 2 _ Principles and matters of general application 
Section 7Fundamental principle _ relevant evidence is admissible 
C53 Section 7 contains the first principle in evidence law: that all relevant evidence is admissible, and conversely, evidence that is not relevant is inadmissible. "Relevant" evidence is defined as evidence that according to logic and common sense has a tendency to prove or disprove anything that needs to be decided in order to determine a proceeding, including, for example, the truthfulness of a witness. Whether an item of evidence is relevant depends on the purpose for which it is offered. Thus evidence relevant for one purpose may not be relevant for other purposes. Evidence does not become irrelevant just because it may be rebutted or disbelieved; and evidence is not irrelevant merely because it relates to background matters or matters that may not be in dispute. Finally, the relevance of an item of evidence may not be apparent at the time the evidence is tendered. The judge has power under s 14 to admit the evidence provisionally; that is, in anticipation that its relevance will be established in due course. 
C54 Relevance is a necessary but not sufficient condition for the admissibility of evidence. Evidence that is relevant may nevertheless be inadmissible for other reasons: for example, if its probative value is outweighed by its unfairly prejudicial effect. But evidence that is not relevant is never admissible, the only exception being evidence admitted by the parties' consent under s 9. 
C55 One important consequence of the fundamental principle in s 7 is that evidence that is admissible is admissible for all the purposes for which it is relevant, unless a specific Code provision excludes its use for a particular purpose. For example, under s 30, the prosecution may not rely on evidence excluded by s 27 (the reliability rule), s 28 (the oppression rule) or s 29 (the improperly obtained evidence rule) if another party offers that evidence. 
evidence code and commentary

s 8 EVIDENCE
8 General exclusion 
(1) In any proceeding, a judge must exclude evidence if its probative value is outweighed by the risk that the evidence will 
(a) have an unfairly prejudicial effect on the outcome of the proceeding; or 
Section 8 continues overleaf 

evidence code and commentary 
Section 8General exclusion 
C56 This is the general head under which relevant evidence may be excluded. To a considerable extent, s 8 codifies the existing common law rules for exclusion, embodied in the term "sufficient relevance" or "legal relevance", and makes it clear that relevant evidence can only be excluded if, on balance, its negative effect actually outweighs its probative value. Section 8 is in addition to _ and overrides _ specific rules on the admissibility of evidence. Thus, s 8(1) may nevertheless exclude relevant evidence that meets specific admissibility requirements. 
C57 Section 8(1) removes any doubt about whether the power to exclude unfairly prejudicial evidence applies in civil cases. Both paragraphs of s 8(1) apply to both civil and criminal cases, whether being tried by a judge alone or a judge sitting with a jury. In practice, the judge will often have to hear the evidence (or receive a summary of it) to determine whether it is likely to be unfairly prejudicial. 
C58 The positive side of the balancing principle in s 8(1) is "probative value". Probative value will depend on such matters as how strongly the evidence points to the inference it is said to support, and how important the evidence is to the ultimate issues in the trial. 
C59 Under s 8(1)(a) the test for excluding unfairly prejudicial evidence is not met if the evidence is simply adverse to the interests of, say, a defendant in a criminal proceeding, since any evidence from the prosecution is going to be prejudicial to the defendant. The evidence must be unfairly prejudicial. There must be an undue tendency to influence a decision on an improper or illogical basis, commonly an emotional one; for instance, graphic photographs of a murder victim when the nature of the injuries is not in issue. Evidence will also be unfairly prejudicial if it is likely to mislead the jury; for example, if it appears far more persuasive than it really is, as is occasionally the case with some types of expert and statistical evidence. The judge will need to consider whether any misleading tendency can be countered by other evidence that is likely to be available, or by a suitable direction to the jury. Whether evidence has an unfairly prejudicial effect must be considered in terms of the proceeding as a whole, and not just from the point of view of a particular party or a defendant. 
Section 8 commentary continues overleaf 
evidence code and commentary

s 8 EVIDENCE
(b) needlessly prolong the proceeding. 
(2) When determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect, the judge must take into account the right of a defendant in a criminal proceeding to offer an effective defence. 
Definitions: judge, proceeding, s 4. 

evidence code and commentary 
Section 8 commentary continued
C60 Section 8(1)(b) recognises explicitly, as the common law recognises implicitly, that sometimes the probative value of an item of evidence may not warrant the time spent in adducing or receiving it, particularly when it would simply repeat earlier evidence. 
C61 The power in s 8(1) reforms the law contained in a line of authority (culminating in the decision of the Privy Council in Lobban v R [1995] 1 WLR 877) to the effect that in a criminal proceeding a defendant's right to present relevant evidence as part of his or her case is absolute and not subject to discretionary control. Under the Code, that right is not absolute, but is a factor the judge must consider in balancing probative value against unfairly prejudicial effect on the outcome of the proceeding _ s 8(2). In effect, s 8(2) obliges the judge to weigh the rights of competing parties as justice requires in the particular case. 
evidence code and commentary

s 9 EVIDENCE
9 Admission by consent 
(1) In any proceeding, the judge may 
(a) with the consent of all parties, admit evidence that is not otherwise admissible; and 
(b) admit evidence offered in any form or way agreed by all parties. 
(2) In a criminal proceeding, a defendant may admit any fact alleged against that defendant so as to dispense with proof of that fact. 
(3) In a criminal proceeding, the prosecution may admit any fact so as to dispense with proof of that fact. 
Definitions: judge, party, proceeding, s 4. 
10 Code to be liberally construed 
This Code is to be liberally construed in such a way as to promote its purpose and principles and is not subject to any rule that statutes in derogation of the common law should be strictly construed. 
Note: As to the Code's purpose, see s 6. 

evidence code and commentary 
Section 9Admission by consent 
C62 Section 9(1)(a) codifies the convenient practice in both civil and criminal proceedings which allows a judge, with the consent of all parties, to admit evidence that may otherwise not be admissible. For example, in the course of presenting their cases, parties sometimes introduce, without objection from the other side, evidence that is not strictly relevant to determining the proceeding. In the end, it saves time not to allow this sort of harmless evidence, rather than disrupt its flow by constant rulings on admissibility. Section 9(1)(b) allows a judge to admit evidence in any form (for example, in the form of an affidavit or a written brief) or in any way (for example, in any alternative way permissible under s 105) agreed between the parties. 
C63 Section 9(2) and (3) replace and extend the provisions of s 369 of the Crimes Act 1961 to enable both the prosecution and the defence to admit facts so that they need not be proved. 
Section 10Code to be liberally construed 
C64 This section is a reminder that it is to the purpose and principles of the Code, rather than to the common law, that judges and lawyers should look for answers to evidential issues. 
evidence code and commentary

s 11 EVIDENCE
11 Inherent powers not affected 
(1) The powers inherent in a court to regulate and prevent abuse of its procedure are not affected by this Code except to the extent that this Code provides otherwise. 
(2) A court must have regard to the purpose and principles of this Code when exercising inherent powers to regulate and prevent abuse of its procedure. 
12 Evidential matters not provided for 
Matters of evidence that are not provided for by this Code are to be determined consistently with the purpose and principles of this Code. 

evidence code and commentary 
Section 11Inherent powers not affected 
C65 Section 11(1) codifies the existing law on a court's inherent powers to regulate and prevent abuse of its procedure. It also recognises that a superior court may exercise its inherent jurisdiction "even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provisions" (Taylor v Attorney-General [1975] 2 NZLR 675, 680 (CA)). Thus, the effect of the Code on the court's inherent powers and jurisdiction is limited to requiring that they should not be exercised contrary to the express provisions of the Code. 
C66 The Code expressly preserves the court's discretion to act in the interests of justice in a number of specific areas. Moreover, the over-arching purpose of the Code is to help secure the just determination of proceedings. Section 11 will not, therefore, restrict the court's discretion to act in the interests of justice in individual cases. 
C67 Section 11(2) is implicit in s 11(1). However, it is included for the sake of clarity. 
Section 12Evidential matters not provided for 
C68 This is the gap-filling provision. Evidential matters not expressly provided for should be determined in accordance with the purpose and principles of the Code. 
evidence code and commentary

s 13 EVIDENCE
13 Establishment of relevance of document 
If a question arises concerning the relevance of a document, the judge may examine it and draw any reasonable inference from it, including an inference as to its authenticity and identity. 
Definitions: document, judge, s 4. 
14 Provisional admission of evidence 
If a question arises concerning the admissibility of any evidence, the judge may admit that evidence subject to evidence being later offered which establishes its admissibility. 
Definitions: judge, s 4. 

evidence code and commentary 
Section 13Establishment of relevance of document 
C69 Authenticity is in the first place an aspect of relevance, and therefore of admissibility. Unless a document is authentic _ that is, the document is what it purports to be _ it is irrelevant and inadmissible. Section 13 deals with authenticity in relation to admissibility: it abrogates the common law rule requiring the authenticity of a document to be proved by evidence extrinsic to the document. Section 13 empowers a judge to examine a document and draw reasonable inferences about authenticity from the document itself. Thus a document that contains the necessary information can be self-authenticating. One type of document to which this section can sensibly apply would be electronic versions of statutes and law reports. 
C70 The authenticity of a document may well remain in issue after the document is admitted and, indeed, may be a key issue in a case. In that event, the authenticity of the document concerns the weight, if any, the fact-finder is to give to it and will normally be the subject of additional relevant evidence. Authenticity as a matter of weight may be contributed to by a number of presumptions in Part 6 of the Code. 
Section 14Provisional admission of evidence 
C71 Section 14 recognises that the practicalities of court proceedings are such that, at the time evidence is adduced, other evidence may not have established its admissibility. This section permits the judge to admit evidence when it is tendered, subject to a later ruling on admissibility. If the other evidence is not forthcoming, the provisionally admitted evidence must be excluded from consideration. 
evidence code and commentary

s 15 EVIDENCE
15 Admissibility of evidence given to establish admissibility 
Evidence given by a witness to prove the facts necessary for deciding whether other evidence should be admitted in a proceeding is not admissible in the proceeding unless the evidence given by the witness is inconsistent with the witness's subsequent testimony in the proceeding. 
Definitions: proceeding, witness, s 4.

evidence code and commentary 
Section 15Admissibility of evidence given to establish admissibility 
C72 This section applies to all witnesses, including defendants who choose to give evidence. It applies to evidence given in any type of hearing held to determine the admissibility of evidence _ whether pre-trial or in a voir dire, and whether under the Code or s 344A of the Crimes Act 196l or any other enactment. 
C73 This section changes the law as it applies to defendants. The existing law is that a defendant may be cross-examined on his or her voir dire evidence that is inconsistent with his or her testimony in the proceeding only if the statement that is the subject of the voir dire is ruled admissible. If the statement is ruled inadmissible, the defendant may not be cross-examined on his or her voir dire evidence (Wong Kam-Ming v R [1980] AC 247). Section 15 makes inconsistent evidence given in an admissibility hearing admissible in the proceeding, irrespective of the fate of the statement that is the subject of the admissibility hearing. 
evidence code and commentary

s 16 EVIDENCE
Part 3
Admissibility rules 
Subpart 1 _ Hearsay evidence 
16 Interpretation 
(1) In this Subpart, circumstances relating to the statement include 
(a) the nature and contents of the statement; and 
(b) the circumstances in which the statement was made; and 
Section 16 continues overleaf 

evidence code and commentary 
Part 3
Admissibility rules 
Subpart 1 _ Hearsay evidence 
C74 This part substantially reforms the law on hearsay. The overall purpose of the hearsay provisions in the Code is to simplify and rationalise the law in civil as well as in criminal proceedings. 
Section 16Interpretation 
C75 The definition of circumstances relating to the statement sets out the factors to be considered in deciding whether there is reasonable assurance that a hearsay statement is reliable in terms of s 18 (hearsay in civil proceedings) and s 19(a) (hearsay in criminal proceedings). The factors are cumulative but may, on occasion, overlap. They do not include either the truthfulness of the witness who relates the hearsay or the consistency of the statement with other evidence not directly related to the statement. The truthfulness of the witness who relates the hearsay can be tested before, and assessed by, the fact-finder. It is important to distinguish between circumstances relating to the statement and other evidence in the case: hearsay that the circumstances relating to the statement indicate to be reliable should not be held inadmissible because it contradicts other evidence. 
C76 In s 16(1)(a) the nature of the statement could include, for example, whether the statement was first-hand hearsay or multiple hearsay. A hearsay statement is more likely to be reliable if the maker of the statement had personal knowledge of the matters dealt with in the statement, than if the maker of the statement has merely repeated what he or she heard from someone else. Generally, the probability of error increases with the number of times an oral statement has been transmitted. 
C77 In s 16(1)(b) the circumstances in which the statement was made could include, for example, the physical environment (including noise level), the mental alertness of both the maker and receiver of the statement, or the conduct of the person to whom the statement was made. It may also be relevant to consider the time when the statement was made in relation to the event it refers to. 
Section 16 commentary continues overleaf 
evidence code and commentary

s 16 EVIDENCE
(c) any circumstances that relate to the truthfulness of the maker of the statement; and 
(d) any circumstances that relate to the accuracy of the observation of the maker of the statement. 
(2) The maker of a statement is unavailable as a witness for the purposes of this Subpart if the maker 
(a) is dead; or 
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or 
(c) is unfit to be a witness because of age or physical or mental condition; or 
(d) cannot with reasonable diligence be identified or found; or 
(e) is not compellable to give evidence. 
Section 16 continues overleaf 

evidence code and commentary 
Section 16 commentary continued
C78 Section 16(1)(c) and (d) enable questions to be raised about any motive the maker of the statement might have to lie, or the reliability of his or her observation. 
C79 The term "maker of the statement" is not defined. Whether a person is the maker of a statement is a question of fact. The question is likely to arise only in cases where more than one person was involved in preparing a statement, as when a police officer records the statement of a person being interviewed. The principle is stated in Cross on Evidence: 
The key question in any doubtful case involving collaboration in preparing some written statement is whether the alleged statement maker has unequivocally adopted it as a statement for whose accuracy he or she is responsible. (para 17.24) 
C80 The combined effect of the definitions of "witness" and "give evidence" is that a person is only unavailable as a witness if he or she cannot give evidence in any of the ways provided for in the Code, or cannot be cross-examined in a proceeding even in an alternative way, such as by close-circuit television or videolink. The categories of "unavailability" listed in s 16(2) follow those in s 2(2) of the Evidence Amendment Act (No 2) 1980, extended to cases of extreme youth as well as old age. Paragraph (b) assumes that persons within New Zealand would not be prevented by practicalities from being witnesses. Advancing technology may mean that this will increasingly be the case for overseas residents as well. Trauma, or the severe impairment of a statement maker's emotional state will make it necessary for the judge to consider under para (c) whether the maker is unfit to attend because of his or her mental condition, particularly if the maker is a child. There is a new category for those who are not compellable as witnesses; for example, a defendant in a criminal proceeding _ s 75. 
C81 Hearsay evidence may be offered to prove the factors that constitute circumstances relating to the statement under s 16(1), and the unavailability of witnesses under s 16(2). The hearsay rule will apply to such evidence. 
Section 16 commentary continues overleaf 
evidence code and commentary

s 16 EVIDENCE
(3) Notwithstanding subsection (2), the maker of a statement is not to be regarded as unavailable as a witness if the unavailability was brought about by the party offering the statement for the purpose of preventing the maker of the statement from attending or giving evidence. 
Definitions: party, statement, truthfulness, witness, s 4. 
17 Hearsay rule 
Hearsay is not admissible except 
(a) as provided by this Subpart or any other Act; or 
(b) where this Code provides that this Subpart does not apply and the hearsay is both relevant and not otherwise inadmissible under this Code. 
Definitions: Act, hearsay, s 4. 

evidence code and commentary 
Section 16 commentary continued
C82 Section 16(3) covers the situation where a party offering a hearsay statement induces the unavailability of the maker of the statement (for example, the party kidnaps or kills the maker of the statement, or pays him or her to go into hiding). Such a party will not be able to have a hearsay statement admitted on the ground that the maker of the statement is unavailable. 
Section 17Hearsay rule 
C83 Section 17 sets out the hearsay rule for the purpose of the provisions that follow: hearsay is inadmissible unless allowed by this Subpart or by any other Act. The reference to "this Subpart" in para (a), in conjunction with the terms of para (b), means that hearsay made admissible by other Code provisions (eg, visual identification evidence under para (b) of the definition) must nevertheless comply with the hearsay rules unless the operation of the hearsay rules is expressly excluded (eg, in a number of Code provisions dealing with documentary evidence: ss 115, 116, 122, 123, 124, 125 and 126). The reference to "any other Act" means that a miscellany of hearsay statements will continue to be admissible under their own statutory schemes (for example, certificates in blood-alcohol proceedings under s 75 of the Land Transport Act 1998). The effect of s 5(1) is that if a hearsay statement fails to comply with the statutory regime governing the admissibility of the particular class of hearsay to which the statement belongs, the statement will not be admissible under the Code's hearsay rules. 
C84 In both civil and criminal proceedings, hearsay may be admitted by consent under s 9. 
evidence code and commentary

s 18 EVIDENCE
18 Hearsay in civil proceedings 
In a civil proceeding, hearsay is admissible if the circumstances relating to the hearsay statement provide reasonable assurance that the statement is reliable and 
(a) the maker of the statement is unavailable as a witness; or 
(b) requiring the maker of the statement to be a witness would cause undue delay or expense. 
Definitions: hearsay, party, proceeding, statement, witness, s 4; unavailable as a witness, s 16. 

evidence code and commentary 
Section 18Hearsay in civil proceedings 
C85 The effect of s 18 is that (in the absence of consent _ s 9) two conditions must be present before a hearsay statement is admissible as evidence. First the judge must be satisfied that the circumstances in which the statement was made were such that it ought to be reliable. Second, either there must be proof that the maker of the hearsay statement is unavailable as a witness, or the expense or delay involved in calling the maker of the statement as a witness is not warranted _ for example, if a party intends to prove a minor issue about which there is unlikely to be any real doubt. If the conditions for admissibility are not met, the party wanting to offer the hearsay must either call the maker of the statement as a witness to give that evidence, or do without the hearsay. 
C86 It is anticipated that a party would give notice voluntarily in relation to significant hearsay in civil proceedings, in order to give other parties sufficient time to consider whether to consent. Such notice would be similar to the notice required in criminal proceedings, and it is expected that it will come to be routinely given _ for example, as part of the process of exchanging briefs of evidence before trial _ so that cases can be heard efficiently and without unnecessary delays. Costs sanctions might follow if the proceeding has to be adjourned (for example, to allow rebuttal evidence to be called) or abandoned and recommenced. 
evidence code and commentary

s 19 EVIDENCE
19 Hearsay in criminal proceedings 
In a criminal proceeding, hearsay is admissible if 
(a) the circumstances relating to the hearsay statement provide reasonable assurance that the statement is reliable; and 
(b) either 
(i) the party who proposes to offer the hearsay as evidence gives notice of the proposal in accordance with section 20(1); or 
(ii) the requirement to give notice is waived by all other parties to the proceeding; or 
(iii) in accordance with section 20(3), the judge dispenses with the requirement to give notice; and 
(c) either 
(i) no party has given notice of objection under section 20(2) or otherwise objects to the admission of the statement as evidence; or 
(ii) the maker of the statement is unavailable as a witness; or 
(iii) requiring the maker of the statement to be a witness would cause undue delay or expense. 
Note: This section does not apply to evidence of a defendant's statement offered by the prosecution in a criminal proceeding. Subpart 3 applies in that case. 
Definitions: hearsay, judge, party, proceeding, statement, witness, s 4; unavailable as a witness, s 16. 

evidence code and commentary 
Section 19Hearsay in criminal proceedings 
C87 In criminal as in civil proceedings, there is an overriding requirement that hearsay evidence should meet a threshold of reliability. In addition, at least one of the factors listed under s 19(b) and at least one of those listed under (c) must be present. 
C88 A judge may be expected to take different factors into account, depending on whether the prosecution or the defence is offering the hearsay. If a hearsay statement forms part of the prosecution case and is crucial to proving a defendant's guilt, a judge will want to ensure that the circumstances relating to the statement give such assurance of reliability that the defendant's right to a fair trial will not be jeopardised by his or her inability to cross-examine the maker of the statement. 
C89 Section 19(c)(i)The words "otherwise objects" allow a party to object without having given notice under s 20(2). This is likely to arise in one of two situations. First, if the judge has excused the failure to give notice of intention to offer hearsay and a party wishes to object to the hearsay; or second, if the judge excuses the failure to give notice of objection. 
C90 Section 19(c)(ii)A defendant in a criminal proceeding is "unavailable" for the purposes of this section because "unavailable" is defined to include a statement maker who is not compellable to give evidence. Under s 75(1) a defendant is not compellable for either the prosecution or the defence. 
C91 Section 19(c)(iii)In a criminal proceeding, those who are available to give evidence should normally do so in open court in the presence of the judge, jury and defendants. It is expected, therefore, that the discretion will only be exercised to avoid unjustifiable delay or expense in proving a point that is not important to determining the proceeding and about which there is unlikely to be any real doubt. 
evidence code and commentary

s 20 EVIDENCE
20 Notice of hearsay in criminal proceedings 
(1) A notice of a proposal to offer a hearsay statement as evidence in a criminal proceeding must be given 
(a) in writing to every other party to the proceeding and include the contents of the statement and, subject to the terms of any witness anonymity order, the name of the maker of the statement; and 
(b) a sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to prepare to meet the statement. 
(2) A party to a criminal proceeding who is given notice of a proposal to offer a hearsay statement as evidence must, if that party objects to the admission of the statement as evidence, give notice of objection as soon as practicable to the party proposing to offer the statement. 
(3) The judge may dispense with the requirement to give notice under subsection (1) or (2) 
(a) if having regard to the nature and contents of the hearsay statement, no party is substantially prejudiced by the failure to give notice under subsection (1); or 
(b) if giving notice was not reasonably practicable in the circumstances; or 
(c) in the interests of justice. 
Definitions: hearsay, judge, party, proceeding, statement, witness, s 4. 

evidence code and commentary 
Section 20Notice of hearsay in criminal proceedings 
C92 Section 20(1)The notice requirements are intended to apply with a degree of flexibility. Thus the prosecution can comply by making disclosure in the usual way, so long as the prosecution makes its intention to offer a hearsay statement as evidence clear. The defence will need to give a simple notice. However, a defendant who gives notice of an intention to offer hearsay evidence should not be treated as having elected to call evidence, and there should be no adverse comment about any later decision not to offer the evidence. A notice should identify by name all persons whose statements are to be offered as hearsay evidence, except in cases where an anonymity order has been made. 
C93 The requirement to give notice of objection under s 20(2) enables disputes about the admissibility of hearsay to be determined before trial. 
C94 Section 20(3)In excusing a party from having to give notice, it is open to a court exercising its inherent powers to allow any other party to call or recall a witness to rebut unexpected hearsay. One situation where a judge may appropriately apply the exemption in the interest of justice under para (c) is where the hearsay evidence was not known to counsel and is unexpectedly disclosed while a witness gives evidence at trial. 
evidence code and commentary

s 21 EVIDENCE
Subpart 2 _ Opinion evidence and expert evidence 
21 Opinion rule 
Opinion evidence is not admissible in a proceeding except as provided by sections 22 to 24. 
Definitions: opinion evidence, proceeding, s 4. 
22 Admissibility of non-expert opinion evidence 
A witness may offer opinion evidence in a proceeding if the opinion evidence is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived. 
Definitions: opinion evidence, proceeding, witness, s 4. 
23 Admissibility of expert opinion evidence 
(1) Subject to section 25, a witness may offer expert evidence that is opinion evidence in a proceeding if that opinion evidence is likely to substantially help the fact-finder to understand other evidence in the proceeding or to ascertain any fact that is of consequence to the determination of the proceeding. 
Section 23 continues overleaf 

evidence code and commentary 
Subpart 2 _ Opinion evidence and expert evidence 
C95 The major reform in this Subpart is to make the admissibility of expert opinion evidence subject to the test of substantial helpfulness to the fact-finder _ either in understanding other evidence or in determining material facts. 
Section 21Opinion rule 
C96 Section 21 is the basic rule excluding opinion evidence unless one of the exceptions applies. The aim is to prevent the admission of unsatisfactory opinion evidence and to avoid the court hearing evidence that is simply a waste of time, but to allow opinion evidence if it will assist the fact-finder by providing information that otherwise would not be available. 
Section 22Admissibility of non-expert opinion evidence 
C97 Section 22 codifies the existing common law. As an example, it will often be impossible for a witness to refer to the speed at which a vehicle was observed to be travelling without resorting to opinion evidence, since the witness is unlikely to have been carrying equipment capable of measuring the exact speed of moving vehicles. 
Section 23Admissibility of expert opinion evidence 
C98 In order to comply with s 23(1), evidence must be from a qualified expert (as defined in s 4); the opinion must be expert evidence (also defined in s 4); and the evidence must be substantially helpful to the court or jury. The first two requirements form the qualification rule. 
C99 The requirement of substantial helpfulness is new. It replaces the common law rules that exclude expert opinion evidence (mainly the common knowledge rule and the ultimate issue rule) with a more rational test that assesses the reliability and value of the expert opinion. It functions as an additional safeguard, supplementing the qualification requirements and will exclude even opinion evidence coming from a properly qualified expert, if it is unsatisfactory for other reasons. Examples are where the evidence is based on an underlying scientific theory whose validity has not been established; or where questions about the reliability of the procedures and techniques used in a particular case have not been satisfactorily answered. 
Section 23 commentary continues overleaf 
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evidence code and commentary 
Section 23 commentary continued
C100 Recent New Zealand cases that have dealt with the admissibility of expert scientific evidence include R v Calder (HC Christchurch, 12 April 1995, T154/9) and R v Brown (HC Auckland, 19 September 1997, T126/95). Both judgments referred to the non-exhaustive guidelines the United States Supreme Court in Daubert v Merrell Dow 509 US 579 (1993) considered would be useful in assessing the reliability of scientific evidence: 
• whether the scientific theory or technique can be (and has been) subjected to empirical testing to see if it can be falsified; 
• whether the scientific theory or technique has been subjected to peer review and publication, increasing the likelihood that substantive flaws in methodology will be detected; 
• the known or potential rate of error of a scientific technique; 
• whether the scientific theory or technique has attracted widespread acceptance within a relevant scientific community. 
Under the Code, these factors will continue to be important in the inquiry about reliability that is inherent in the substantial helpfulness test. As the Court in Daubert emphasised, "The focus . . . must be solely on principles and methodology, not on the conclusions that they generate". (595) 
C101 Some of these guidelines _ for example, falsification by empirical testing or a rate of error _ have been formulated specifically for testing the reliability of scientific evidence (ie, evidence based on scientific theory or technique), and will not be appropriate for evaluating evidence based on specialised knowledge and skills. Such evidence is not amenable to verification by empirical testing. When considering the reliability of expert evidence, it is essential to be clear about the purpose for which the evidence is offered: evidence that is valid and reliable for one purpose may be invalid and unreliable for another purpose. 
Section 23 commentary continues overleaf 
evidence code and commentary

s 23 EVIDENCE
(2) Expert evidence that is opinion evidence is not inadmissible by reason only that it is about 
(a) an ultimate issue to be determined in a proceeding; or 
(b) a matter of common knowledge. 
Section 23 continues overleaf 

evidence code and commentary 
Section 23 commentary continued
C102 Expert evidence is likely to be substantially helpful if it will help the fact-finder to understand the evidence of certain witnesses and avoid drawing the wrong inferences from their evidence. Examples are evidence about the nature of the disability of an intellectually disabled witness and the ways that disability affects his or her behaviour, understanding and communication, and evidence about the level of intellectual and emotional development of a child witness. 
C103 Section 23(2)The common knowledge rule and the ultimate issue rule are formally abolished. The combined effect of ss 7 (fundamental principle _ relevant evidence is admissible) and 23(1) effectively abolish them, but s 23(2) puts it beyond doubt. Under the Code, the inquiry should no longer be whether the opinion evidence is about an ultimate issue or a matter of common knowledge, but whether the evidence is substantially helpful. While expert opinion evidence will not be excluded just because it contains matters of common knowledge, the evidence is unlikely to be substantially helpful unless it goes beyond matters of common knowledge. 
Section 23 commentary continues overleaf 
evidence code and commentary

s 23 EVIDENCE
(3) Subject to subsection (4), to the extent that expert evidence that is opinion evidence is based on fact, the opinion evidence may be relied on by the fact-finder only to the extent that the facts on which it is based, other than facts pertaining to the general body of knowledge or skill comprising the witness's expertise, are or will be established in that proceeding by admissible evidence or will be judicially noticed. 
Section 23 continues overleaf 

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Section 23 commentary continued
C104 Section 23(3)If the expert opinion evidence is based on fact, those facts must be proved by admissible evidence or be judicially noticed (see s 114) before the fact-finder can rely on the opinion. This requirement does not apply to facts that are part of the general body of knowledge or skill going to make up the expert's expertise. For example, the fact that a certain pathological condition generally takes a particular course does not have to be proved by other evidence, as it is a part of the general knowledge that makes one who possesses it an expert. But if the expert expresses an opinion, based on a patient's symptoms observed over time, that the patient was suffering from a particular pathological condition, the fact of those observed symptoms must be proved by admissible evidence, including admissible hearsay. 
C105 The practical effect of s 23(3) is that if expert opinion evidence is offered with no evidence laying the factual foundation for the opinion and counsel declines to undertake to the court that such evidence will be offered later in his or her case, then the judge can decline to admit the opinion evidence. If the evidence of the underlying facts is offered, the jury can be directed that it must find those facts proved before it can rely on the expert's opinion. If the fact-finder is a judge, he or she must go through a similar mental process. 
C106 Section 23(3) does not apply if expert opinion evidence is not based on fact. For example, it will not operate to prevent an expert giving opinion evidence about an economic theory. 
Section 23 commentary continues overleaf 
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s 23 EVIDENCE
(4) If expert evidence that is opinion evidence is offered in relation to the sanity of a person, evidence of any statement about that person's state of mind made to the expert by that person is admissible to establish the facts on which the expert's opinion is based and neither the hearsay rule nor the previous consistent statements rule applies to evidence of any such statement. 
Definitions: expert evidence, hearsay rule, opinion evidence, previous consistent statements rule, proceeding, statement, witness, s 4. 

evidence code and commentary 
Section 23 commentary continued
C107 Subsection (4) allows an expert to give evidence in chief of the content of a statement about the state of mind of a person whose sanity is in issue, which is made to the expert by that person. Neither the hearsay rule (s 17) nor the previous consistent statements rule (s 37) applies to such a statement. Evidence of the statement cannot be used for any purpose other than to establish facts on which the expert bases his or her opinion about the person's sanity. 
C108 Section 23 is subject to s 25: expert opinion evidence is not admissible unless written notice is given, waived or excused. 
evidence code and commentary

s 24 EVIDENCE
24 Expert witnesses in cases involving certain complainants in sexual cases 
(1) This section applies to every sexual case in which the complainant, at the time of the alleged offence, was a child. 
(2) Subject to section 25, in a case to which this section applies, an expert witness may offer evidence on whether the complainant's behaviour as described in evidence given in the proceeding by a person other than the expert witness, was, from the expert witness's professional experience or knowledge of the professional literature, consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant. 
Section 24 continues overleaf 

evidence code and commentary 
Section 24Expert witnesses in cases involving certain complainants in sexual cases 
C109 Section 24 re-enacts the substance of s 23G(2)(c) of the Evidence Act 1908. Unlike s 23G(2)(c), s 24 applies if the complainant was under the age of 17 at the time of the alleged offence. It is the complainant's behaviour around the time of the offence that is relevant in s 24(2), and it does not cease to be relevant just because the complainant is over 17 at the commencement of the proceeding. Section 24 is subject to s 25, which requires written notice to be given of the intention to call expert evidence. 
C110 Expert opinion evidence under s 24(2) is based primarily on specialised knowledge and skill, rather than scientific theory or technique, for the simple reason that it would be unthinkable to conduct experiments by subjecting children to sexual abuse and comparing them with a control group. Section 24(2) enables an expert to express an opinion on whether the complainant's observed behaviour is or is not consistent with the behaviour of sexually abused children of the same age group. The purpose of such evidence is not diagnostic. Rather, the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and therefore be better able to evaluate it. 
C111 Part of that purpose is to correct erroneous beliefs that juries may otherwise hold intuitively. That is why such evidence is sometimes called "counter-intuitive evidence": it is offered to show that behaviour a jury might think is inconsistent with claims of sexual abuse is not or may not be so; that children who have been sexually abused have behaved in ways similar to that described of the complainant; and that therefore the complainant's behaviour neither proves nor disproves that he or she has been sexually abused. The purpose of such evidence is to restore a complainant's credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. This is similar to the use of expert evidence to dispel myths and misconceptions about the behaviour of battered women. 
Section 24 commentary continues overleaf 
evidence code and commentary

s 24 EVIDENCE
(3) An expert witness offering evidence under subsection (2) must give reasons for his or her opinion, including such evidence as is necessary for the expert witness to give a fair and balanced explanation of the research and experience on which that opinion is based. 
Definitions: child, expert, expert evidence, opinion evidence, proceeding, sexual case, witness, s 4. 

evidence code and commentary 
Section 24 commentary continued
C112 In the present state of knowledge, evidence of behaviour consistent with sexual abuse cannot, on its own, prove that sexual abuse has occurred. But as with any item of circumstantial evidence, it can combine with other evidence so that in its totality the evidence amounts to proof of sexual abuse beyond reasonable doubt. Thus, the weight that may be given to evidence of behaviour consistent with sexual abuse will depend on the surrounding circumstances as established by other evidence in the case. The judge can be expected to give the jury a direction in this respect that is tailored to the particular facts of the case. 
C113 Section 24(3) is new in requiring the expert to give a fair and balanced explanation of his or her conclusions by reference to research and experience. The effect of s 24(3) is to provide a fuller picture within which the expert's opinion can be evaluated. For example, if an expert expresses an opinion that the complainant's behaviour is consistent with the behaviour of sexually abused children of the same age group, s 24(3) requires the expert to tell the jury whether that behaviour may also be consistent with the complainant having had other traumatic experiences that had nothing to do with sexual abuse. 
evidence code and commentary

s 25 EVIDENCE
25 Admissibility, notice and disclosure of expert evidence 
(1) Expert evidence, whether or not opinion evidence, is not admissible in a criminal proceeding unless 
(a) the party who proposes to offer the expert evidence gives notice in writing of that proposal to every other party to the proceeding except any party who has waived the requirement to give notice; or 
(b) under subsection (3), the judge dispenses with the requirement to give the notice referred to in paragraph (a). 
(2) A notice under subsection (1) must 
(a) include the name, address and qualifications of the proposed witness and the contents of the proposed evidence; and 
(b) be given 
(i) a sufficient time before the hearing to provide all the other parties to the proceeding with a fair opportunity to prepare to meet the evidence; or 
(ii) within such time, whether before or after the commencement of the hearing, as the judge may allow and subject to any conditions that the judge may impose. 
(3) The judge may dispense with the requirement to give notice under subsection (1) 
(a) if no party is substantially prejudiced by the failure to give notice; or 
(b) if giving notice is not reasonably practicable in the circumstances; or 
(c) if at the time notice should have been given in compliance with subsection (2)(b)(i), the necessity to offer expert evidence was not reasonably foreseeable by the party concerned; or 
(d) in the interests of justice. 
Definitions: expert, expert evidence, judge, opinion evidence, party, proceeding, witness, s 4. 

evidence code and commentary 
Section 25Admissibility, notice and disclosure of expert evidence 
C114 Section 25(1) introduces a notice and disclosure regime that governs all expert evidence in criminal proceedings, including expert evidence offered by the defence. Expert evidence (whether of fact or opinion) is not admissible unless a party gives written notice of the evidence to every other party to the proceeding. Exceptions are where another party waives the requirement to give notice under s 25(1)(a), or the judge excuses a party from having to give notice under s 25(3). 
C115 Section 25(2)(a) It is expected that parties will normally comply with this provision by exchanging copies of the reports of expert witnesses. If there is no written report, then the party should provide a brief of the evidence. If a party proposes to use diagrams, graphs, or other visual aids, these too should be exchanged. Since one reason for requiring pre-trial disclosure is to enable each party to fully investigate and test the expert evidence to be offered by the other parties, the disclosure must be sufficient to achieve this objective. 
C116 Section 25(2)(b) No particular time period is prescribed but notice must be given in sufficient time before the hearing to provide all the parties with a fair opportunity to prepare to meet the evidence. As an alternative, parties may apply to the judge for directions under s 25(2)(b)(ii), which could include setting a timetable, imposing conditions, directions about the form in which the evidence should be disclosed, and directions for identifying and narrowing the issues. An application for directions will be appropriate if, for example, a prosecution expert called to rebut a defence of insanity wishes to hear the evidence of the defence expert before committing to a brief. 
C117 Since the Code makes no provision for notice of expert evidence in civil proceedings, the notice provisions in the High Court Rules and District Courts Rules will continue to apply by virtue of s 5(1). See the discussion in C45. 
evidence code and commentary

Subpart 3 _ Defendants' statements, improperly obtained evidence, silence of parties in proceedings and admissions in civil proceedings 

evidence code and commentary 
Subpart 3
Defendants' statements, improperly obtained evidence, silence of parties in proceedings and admissions in civil proceedings 
C118 This Subpart sets up a self-contained regime that reforms the law on the admissibility of defendants' statements offered in evidence by the prosecution. At common law, one defendant's statement cannot be used to implicate another defendant. Under New Zealand case law, a defendant has no standing to challenge evidence obtained from a co-defendant in breach of the Bill of Rights. In such cases, juries are directed that the evidence can be used for one purpose but not another. The Code seeks to avoid the necessity for such directions as much as possible. In the context of this Subpart, evidence offered by the prosecution is admissible or inadmissible against all defendants. 
C119 The general rule is that the prosecution may use evidence (including a statement) obtained from one defendant against that defendant or another defendant, unless the evidence is excluded by the operation of the reliability rule (s 27), the oppression rule (s 28) or the improperly obtained evidence rule (s 29). The hearsay rule (s 17), opinion rule (s 21) and previous consistent statements rule (s 37) do not apply to such evidence. If the evidence is excluded by s 27, 28 or 29, the prosecution may not use it against the defendant from whom the evidence was obtained or any other defendant. Evidence (including a statement) that the prosecution cannot use against the defendant from whom it was obtained because of the operation of s 27, 28 or 29 will remain inadmissible against that defendant even if another defendant puts it in evidence. 
C120 This Subpart also reforms the law on a defendant's right of silence before and at trial. It seeks to protect that right by prohibiting the drawing of adverse inferences from the fact that a defendant has exercised the right of silence before or at trial, rather than by limiting the situations when evidence about it may be given. 
Subpart 3 commentary continues overleaf 
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evidence code and commentary 
Subpart 3 commentary continued
C121 The definition of "statement" in s 4 applies to confessions and admissions as well as statements the maker intends to be exculpatory, which the prosecution may want to put in evidence to show a consciousness of guilt (for example, lies). Such statements will be subject to the reliability and oppression rules. The definition includes non-verbal conduct intended as an assertion of any matter (eg, a nod or shake of the head), but it does not include assertions that may be implied from conduct of a defendant. Such "implied assertions" are not subject to the reliability and oppression rules. They are, however, subject to the improperly obtained evidence rule and the general principles in Part 2. 
C122 The reliability rule (s 27) and the oppression rule (s 28) are rules of automatic exclusion; that is, once the conditions in either of those rules exist, the evidence is excluded and there is no available discretion to admit the statement. This position can be compared to the improperly obtained evidence rule (s 29), under which the judge has a discretion to admit improperly obtained evidence if exclusion would be contrary to the interests of justice. 
C123 Apart from s 30 (prosecution may not rely on certain evidence offered by other parties), the rules in this Subpart do not apply to a statement made by a defendant and offered in evidence by that defendant or another defendant. 
evidence code and commentary

s 26 EVIDENCE
26 Defendants' statements offered by the prosecution 
(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible unless the statement is inadmissible because of section 27 (the reliability rule), section 28 (the oppression rule), or section 29 (the improperly obtained evidence rule). 
(2) Subpart 1 (hearsay evidence), Subpart 2 (opinion evidence and expert evidence) and section 37 (previous consistent statements rule) do not apply to evidence offered under subsection (1). 
Definitions: expert evidence, hearsay, opinion evidence, previous statement, statement, proceeding, s 4. 

evidence code and commentary 
Section 26Defendants' statements offered by the prosecution 
C124 Section 26(1)The general rule is that evidence of a statement made by a defendant that the prosecution in a criminal proceeding offers, is admissible against that or another defendant unless excluded by one or more of the rules in ss 27, 28 and 29. Once a statement is excluded under one of these rules, it is inadmissible to prove the truth of its contents against any defendant for all prosecution purposes. 
C125 Section 26(2) removes the operation of the hearsay rule, the opinion rule, and the previous consistent statements rule from evidence of a defendant's statement offered by the prosecution. While the prosecution is unlikely to want to offer in evidence a statement by a defendant that is consistent with that defendant's testimony, the prosecution is unlikely to know, at the stage it may want to offer the statement in evidence, whether the defendant is going to testify. Excluding the application of the previous consistent statements rule eliminates unnecessary argument on the point. 
evidence code and commentary

s 27 EVIDENCE
27 Reliability rule 
(1) The reliability rule in subsection (2) applies to evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant only if 
(a) the defendant or a co-defendant against whom the statement is offered raises the issue of the reliability of the statement and informs the judge and the prosecution of the grounds for raising the issue; or 
(b) the judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue. 
(2) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is inadmissible unless the prosecution satisfies the judge beyond reasonable doubt that the circumstances in which the statement was made were not likely to have adversely affected its reliability. 
Section 27 continues overleaf 

evidence code and commentary 
Section 27Reliability rule 
C126 Sections 27, 28 and 29 change the law in a number of important respects. Under existing law, a defendant's pre-trial admission cannot implicate a co-defendant; and a defendant has no standing to challenge evidence obtained from a co-defendant in breach of the Bill of Rights. Under the Code, the prosecution can use a defendant's pre-trial statement that is not excluded by the operation of ss 27, 28 and 29 against that defendant and any co-defendant. However, if the statement is inadmissible because of ss 27, 28 and 29, the prosecution cannot use it against any defendant. 
C127 Both this rule and the oppression rule in s 28 apply to all statements made by defendants and offered in evidence by the prosecution. Sections 27 and 29 replace the common law voluntariness rule and its limited exception in s 20 of the Evidence Act 1908. They are not intended to abandon values protected by the voluntariness rule but rather to protect those values more effectively by simplifying and clarifying the rules. 
C128 There is no requirement that the person who obtained the statement be a person in authority. Although statements are very often made to police officers, this will not always be so. The rules apply to statements made to anyone, including parents, acquaintances or employers. 
C129 Section 27(1)A reliability issue may be raised by the defendant, a codefendant against whom the statement is intended to be used, or the judge. If none of them does so, the rule does not apply and the statement will be admissible. The requirement to inform the prosecution of the grounds for raising a reliability issue enables the prosecution to know of the contentions it must meet and the witnesses it should call. There is no evidential burden on a defendant or co-defendant and a high degree of disclosure is not required. A simple statement informing the judge and the prosecution of the grounds will be sufficient. This aspect of the reliability rule is not intended to change the present law. 
C130 Section 27(2) states the reliability rule. The phrase "circumstances in which the statement was made" will enable the judge to take into account a broad range of matters that may affect the reliability of the statement, including matters other than the conduct of the person in whose presence the statement was made. 
C131 The words "not likely to have adversely affected its reliability" apply to exculpatory statements as well as to admissions of guilt. They directly highlight the central issue for this rule _ reliability. 
Section 27 commentary continues overleaf 
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s 27 EVIDENCE
(3) Without limiting the matters that a judge may take into account for the purpose of applying the reliability rule, the judge must take into account 
(a) any pertinent physical, mental or psychological condition of the defendant when the statement was made (whether apparent or not); and 
(b) any pertinent characteristics of the defendant including any mental, intellectual or physical disability to which the defendant is subject (whether apparent or not); and 
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and 
(d) the nature of any threat, promise or representation made to the defendant or any other person. 
(4) Subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered in evidence by the prosecution only as evidence of the physical, mental or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made. 
Definitions: judge, proceeding, statement, s 4. 

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Section 27 commentary continued
C132 Section 27(3) identifies factors that the judge is obliged to take into account when applying the reliability rule. The list is not exhaustive. The judge is required to take these matters into account only if there is some evidential foundation for their existence. 
C133 The central issue in relation to reliability is the actual state of the defendant's mind at the time he or she made the statement, rather than the source of any influence on the defendant's mind. 
C134 Section 27(3)(a) requires the judge to consider the defendant's condition at the time the statement was made. The condition may be a transient one _ for example, intoxication. 
C135 Section 27(3)(b) requires the judge to consider the characteristics of the defendant. The judge is not limited to the matters listed in para (b). Other matters such as age, sex, ethnic or national origin, sexual orientation or health status may also be relevant in a particular case. 
C136 Section 27(3)(c) requires the judge to take into account any questions put to the defendant and the manner in which they were put. This is not limited to police or official questioning. Section 27(3)(d) requires account to be taken of any threat, promise or representation made to the defendant or any other person. 
C137 Section 27(4) contains a limited exception to the reliability rule. It allows the prosecution to tender a statement in evidence for a purpose other than to prove the truth of the facts stated or a consciousness of guilt. If the prosecution offers a statement as evidence of the defendant's condition and the jury could use it for other purposes, the judge will need to consider whether to exclude the statement on the ground that its probative value is outweighed by the danger that it will have an unfairly prejudicial effect (s 8) and, if the evidence is admitted, whether a special direction to the jury is required. 
evidence code and commentary

s 28 EVIDENCE
28 Oppression rule 
(1) The oppression rule in subsection (2) applies to evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant only if 
(a) the defendant or a co-defendant against whom the statement is offered raises the issue of the influence on the statement of conduct, treatment, or a threat described in subsection (2)(a) and (b) and informs the judge and the prosecution of the grounds for raising the issue; or 
(b) the judge raises the issue of the influence on the statement of conduct, treatment, or a threat described in subsection (2)(a) and (b) and informs the prosecution of the grounds for raising the issue. 
(2) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is inadmissible unless the prosecution satisfies the judge beyond reasonable doubt that the statement was not influenced by 
(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or 
(b) a threat of conduct or treatment of that kind. 
(3) Without limiting the matters that a judge may take into account for the purpose of applying the oppression rule, the judge must take into account 
(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and 
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and 
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and 
(d) the nature of any threat, promise, or representation made to the defendant or any other person. 
Definitions: judge, proceeding, statement, s 4. 

evidence code and commentary 
Section 28The oppression rule 
C138 Under s 28 it is irrelevant whether or not the statement is reliable. While the rule will promote reliability (since there is always potential for a statement to be unreliable if oppression or violence is used to obtain it), the primary purposes of the rule are to protect people from coerced self-incrimination and to deter police and other state officials from engaging in unacceptable conduct. 
C139 The oppression rule is triggered by the defendant, a co-defendant against whom the prosecution proposes to use the statement, or the judge raising the issue of oppression in accordance with s 28(1). 
C140 Section 28(2) states the rule. If the issue is raised, the prosecution must satisfy the judge beyond reasonable doubt that the statement was not influenced by the matters listed in the rule. The rule is concerned with the unacceptable conduct of any person, not just a person in authority, in obtaining a statement from a defendant. The rule requires the exclusion of statements influenced by oppression or violence towards the defendant or another person. 
C141 The rule protects the right not to be subjected to torture or to cruel, degrading, or inhuman treatment or punishment (Article 15 of the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; Article 7 of the International Covenant on Civil and Political Rights; s 9 of the New Zealand Bill of Rights Act 1990). The oppression rule meets the requirements of Article 15 and indeed goes further than the minimum obligations under the Convention. 
C142 The rule does not attempt to define oppression because the scope of oppressive conduct is best left for the courts to determine on a case-by-case basis. The words used to describe other conduct or treatment governed by the rule _ "violent, inhuman or degrading" _ are also not defined, though the conduct and treatment they cover is probably more readily specified. 
C143 Section 28(3) lists the non-exclusive factors the judge must consider. They are the same as those in s 27(3). 
evidence code and commentary

s 29 EVIDENCE
29 Improperly obtained evidence rule 
(1) The improperly obtained evidence rule in subsection (3) applies to evidence offered by the prosecution in a criminal proceeding only if 
(a) the defendant, or a co-defendant against whom the evidence is offered, raises an issue of whether the evidence was improperly obtained and informs the judge and the prosecution of the grounds for raising the issue; or 
(b) the judge raises an issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue. 
(2) If the defendant, a co-defendant or the judge raises the issue of whether the evidence was improperly obtained, the improperly obtained evidence rule applies unless the prosecution satisfies the judge on the balance of probabilities that the evidence was not improperly obtained. 
(3) Improperly obtained evidence offered by the prosecution in a criminal proceeding is inadmissible unless the judge considers that the exclusion of the evidence would be contrary to the interests of justice. 
Section 29 continues overleaf 

evidence code and commentary 
Section 29Improperly obtained evidence rule 
C144 In contrast to the reliability and oppression rules, which apply only to statements, the improperly obtained evidence rule applies to all kinds of evidence that the prosecution may offer. This rule replaces the fairness discretion and the exclusionary rule developed by the courts for evidence obtained in breach of the New Zealand Bill of Rights Act 1990. A statement that has not been influenced by oppressive conduct or treatment, and is reliable, will nevertheless be excluded from evidence if it is improperly obtained within the meaning of s 29(4) and is not admitted by the judge in exercising the discretion under s 29(3). 
C145 The rule applies to evidence offered by the prosecution only if a defendant, a co-defendant against whom the evidence is offered, or the judge raises the issue in the manner prescribed in s 29(1). The procedure is the same as that under the reliability and oppression rules. 
C146 Once the issue is raised, the rule stated in s 29(3) applies unless the prosecution satisfies the judge on the balance of probabilities that the evidence was not obtained improperly. 
C147 Section 29(3) calls for a factual and policy judgment and no standard or onus of proof is specified. A decision to admit the evidence requires the judge to balance various public interests. They extend beyond the interests involved in the particular case to broader interests concerning the general administration of the law. Such interests include the long-term consequences for the integrity of the criminal justice system of admitting or excluding the particular type of improperly obtained evidence. The rule allows the judge to take into account all the competing considerations and does not require the judge to take a rigid or technical approach. 
C148 If the evidence is ruled admissible, it is admissible against the defendant from whom it was obtained, as well as any co-defendant. 
Section 29 commentary continues overleaf 
evidence code and commentary

s 29 EVIDENCE
(4) Evidence is improperly obtained if it is obtained 
(a) in consequence of a breach of the New Zealand Bill of Rights Act 1990; or 
(b) in consequence of a breach of any enactment or rule of law; or 
(c) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or 
(d) unfairly. 
(5) In exercising the power to admit evidence under subsection (3), the judge must consider, among other relevant matters 
(a) the significance of the New Zealand Bill of Rights Act 1990 as an Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand; and 
(b) the nature and gravity of any impropriety; and 
(c) whether any impropriety was the result of bad faith; and 
(d) the likelihood that the evidence would have been discovered or otherwise obtained regardless of any impropriety. 
(6) A statement made by a defendant that is inadmissible because of section 27 (the reliability rule) or section 28 (the oppression rule) cannot be admitted as evidence under subsection (3) of this section. 
Definitions: Act, judge, statement, proceeding, s 4. 

evidence code and commentary 
Section 29 commentary continued
C149 Section 29(4) defines when evidence is improperly obtained. Under this rule, unfairness is simply a threshold test making the evidence prima facie inadmissible, whereas under the current law unfairness is the basis upon which a final decision to exclude the evidence rests. Until the proposals in Police Questioning (NZLC R31, 1994) are adopted, the Judges' Rules remain a guide for determining whether evidence has been unfairly obtained for the purposes of s 29(4)(d). 
C150 Section 29(5) provides some guidance by specifying matters a judge must take into account in deciding whether excluding the improperly obtained evidence would be contrary to the interests of justice. The existence of one factor will not automatically dictate exclusion or admission. All the factors are interdependent and the importance given to each will depend on the particular circumstances. It is open to the judge to take into account other relevant matters. 
C151 Section 29(6) makes it clear that if a statement is inadmissible under the reliability rule or the oppression rule, it cannot be admitted under the improperly obtained evidence rule. For example, an over-zealous interrogator may tell a defendant, quite untruthfully: "We've got your friend Jack. He has admitted that you were both at that address in Newtown. You might as well come clean and admit it yourself." Any admission following such a statement may be excluded as unreliable (induced by a misrepresentation: s 27(3)(d)) or as improperly (unfairly) obtained under s 29(4)(d). If the admission is excluded as unreliable, the prosecution may not seek to have it admitted under s 29(2) on the ground that it was not improperly obtained, or under s 29(3) on the ground that exclusion would be contrary to the interests of justice. 
C152 Improperly obtained evidence is admissible in civil proceedings, subject to relevance and the general exclusion in s 8. 
evidence code and commentary

s 30 EVIDENCE
30 Prosecution may not rely on certain evidence offered by other parties 
Evidence that would be inadmissible if offered by the prosecution in a criminal proceeding because of section 27 (the reliability rule), section 28 (the oppression rule), or section 29 (the improperly obtained evidence rule) may not be relied on by the prosecution if that evidence is offered by any other party. 
31 Irrelevance of truth to admissibility of defendants' statements 
In determining whether a defendant's statement should be admitted under section 27, 28, or 29 as evidence in a criminal proceeding (whether in the exercise of a discretion or not), the issue of the statement's truth or falsity is to be disregarded. 
Definitions: statement, proceeding, s 4. 

evidence code and commentary 
Section 30Prosecution may not rely on certain evidence offered by other parties 
C153 If the prosecution is prevented from offering an item of evidence against a defendant because of the operation of s 27, 28 or 29, the prosecution will not be able to use the evidence against that defendant even if another party puts it in evidence. Thus, if the prosecution obtained, in breach of s 27, 28 or 29, a statement from a defendant that is exculpatory of a co-defendant, under the Code the co-defendant can offer the statement in evidence without thereby enabling the prosecution to use it against the defendant who made the statement. It will be necessary to direct the jury about the limited use they can make of such evidence. In other words, the evidence may be used for the benefit of the co-defendant who puts the statement in evidence, but not to the detriment of the defendant from whom the statement was improperly obtained. 
C154 It should be noted that ss 26, 27, 28 and 29 _ and more particularly s 26(2) _ do not apply to a defendant's statement offered in evidence by that or another defendant. Such evidence must comply with the hearsay rules if the defendant whose statement is offered is not a witness, or with the previous consistent statements rule (s 37) if he or she is a witness. 
Section 31Irrelevance of truth to admissibility of defendants' statements 
C155 The focus of the rules in ss 27, 28 and 29 is on the circumstances surrounding the making of a defendant's statement. Truth is not relevant to the tests. As a result, subsequently discovered real evidence may not be offered at a hearing to determine the admissibility of a defendant's statement, if the only purpose of that evidence is to confirm the truth of the statement. 
evidence code and commentary

s 32 EVIDENCE
32 Defendants' right of silence before trial 
(1) In a criminal proceeding, the fact-finder must not draw an inference that is unfavourable to a defendant from the fact that the defendant did not answer a question put or respond to a statement made to that defendant in the course of official questioning before the trial, or the defendant's failure to disclose a defence before trial; and if the trial is before a jury, the judge must direct the jury accordingly. 
(2) In this section, an inference that is unfavourable to a defendant includes an inference of guilt or an inference about a defendant's truthfulness. 
(3) In a criminal proceeding, the prosecution must not cross-examine a defendant on the fact that the defendant did not answer a question put or respond to a statement made to that defendant in the course of official questioning before the trial, or on the fact that the defendant failed to disclose a defence before trial. 
(4) This section does not apply if the fact that the defendant did not answer a question put or respond to a statement made before the trial is a fact required to be proved in the proceeding. 
Definitions: official questioning, proceeding, statement, truthfulness, s 4. 

evidence code and commentary 
Section 32Defendants' right of silence before trial 
C156 Section 32 follows the existing law in allowing evidence to be given of the fact that a defendant in a criminal proceeding did not respond to official questioning in exercising the right of silence before trial, or did not disclose a defence before trial. This section seeks to protect defendants by prohibiting cross-examination by the prosecution on that fact, and by prohibiting adverse inferences from being drawn from that fact. 
C157 Section 32 only applies to "official questioning" before trial. The term "official questioning" is defined in s 4 and is limited to questioning in connection with investigating an offence or possible offence, conducted by or in the presence of a police officer or a person whose functions include investigating offences. The latter category will include officials conducting investigations in order to enforce an enactment, such as customs officers or fisheries officers, as well as persons such as insurance investigators or store security staff. The prohibition in s 32 applies in relation to all defences, including the defence of alibi. Failure to give notice of alibi, as required by s 367A of the Crimes Act 1961, means the defence may not offer evidence of an alibi without the permission of the judge, but does not open a defendant to adverse inference or comment. 
C158 The effect of s 32(1) and (2) is to prohibit the fact-finder from inferring either that the defendant is guilty or that he or she is not telling the truth because the defendant declined to answer official questioning or failed to disclose a defence before trial. It requires a judge sitting with a jury to give a direction to that effect. These provisions change the law in extending the traditional prohibition of inferences of guilt to adverse inferences about credibility. 
C159 In prohibiting the prosecution from cross-examining a defendant on the defendant's exercise of the right of silence before trial, s 32(3) clarifies the law on the side of rights. If a defendant falsely asserts that he or she has not been given an opportunity to answer the charge against him or her, s 32(3) does not prevent the prosecution from cross-examining the defendant on the assertion. The reason is that the subject of such cross-examination is not the defendant's exercise of the right not to answer questions, but the lie that was told about it. 
C160 Section 32(4)An example is where a defendant is charged with failing to answer questions under s 185 of the Customs and Excise Act 1996. 
evidence code and commentary

s 33 EVIDENCE
33 Comment on defendants' exercise of right of silence before trial 
(1) In a criminal proceeding, no person may invite the fact-finder to draw an inference that is unfavourable to a defendant from the fact that the defendant did not answer a question put or respond to a statement made to that defendant in the course of official questioning before the trial or from the defendant's failure to disclose a defence before trial. 
(2) In this section, an inference that is unfavourable to a defendant includes an inference of guilt or an inference about a defendant's truthfulness. 
Definitions: official questioning, proceeding, statement, truthfulness, s 4. 

evidence code and commentary 
Section 33Comment on defendants' exercise of right of silence before trial 
C161 Section 33(1) forbids anyone to invite the fact-finder to draw inferences adverse to a defendant simply because the defendant has exercised the right to remain silent in the face of official questioning or by not disclosing a defence before the trial. 
C162 The effect of s 33 is to change the law allowing adverse comment on a belated explanation. It also reforms the so-called "doctrine of recent possession", which allows the fact-finder to infer guilt from a defendant's failure to offer an explanation when confronted with possession of recently stolen property. In both situations, s 33 precludes adverse comment on the lack of an explanation in the face of official questioning. However, s 33 does not preclude an invitation to the fact-finder to draw an adverse inference from the fact that the defendant was found in possession of recently stolen goods. Section 33 also does not preclude adverse comment about any explanation that is offered and rejected. 
evidence code and commentary

s 34 EVIDENCE
34 Defendants' right of silence at trial 
In a criminal proceeding, the fact that a defendant did not give evidence at his or her trial must not be used to help establish the defendant's guilt. 
Definition: proceeding, s 4. 
35 Silence of parties in civil proceedings 
A fact-finder may draw an unfavourable inference concerning a matter in issue in a civil proceeding from the failure of a party in that proceeding to give evidence if it appears to the fact-finder that the party might reasonably have been expected to give evidence concerning that matter. 
Definitions: party, proceeding, s 4. 

evidence code and commentary 
Section 34Defendants' right of silence at trial 
C163 This section overturns Trompert v Police [1985] 1 NZLR 357 (CA). The effect of s 34 is that a defendant's silence at trial may indicate that there is no evidence to support speculative explanations by defence counsel of the Crown's evidence, or that the accused has not put forward any evidence that would require the Crown to negative an affirmative defence. However, silence can never be used to bolster prosecution evidence that would otherwise be insufficient to prove guilt beyond reasonable doubt. Even where the onus is on a defendant _ for example, to establish a defence of insanity or absence of fault in a "public welfare" offence _ the defendant's silence at trial should only affect the weight of the defence evidence. Lack of defence evidence may mean there is nothing to tip the balance against prosecution evidence that is sufficient to prove a defendant's guilt beyond reasonable doubt. Lack of defence evidence can never add weight to an insufficient prosecution case to help prove a defendant's guilt beyond reasonable doubt. 
Section 35Silence of parties in civil proceedings 
C164 This section is inserted to make it clear that s 34 does not apply in civil proceedings. 
evidence code and commentary

s 36 EVIDENCE
36 Admissions in civil proceedings 
(1) Subpart 1 (hearsay evidence), Subpart 2 (opinion evidence and expert evidence) and section 37 (the previous consistent statements rule) do not apply to evidence of an admission offered in a civil proceeding that is 
(a) given orally by a person who saw, heard, or otherwise perceived the admission being made; or 
(b) contained in a document. 
(2) Evidence of an admission that is a hearsay statement may not be used in respect of the case of a third party unless 
(a) the circumstances relating to the making of the admission provide reasonable assurance that the admission is reliable; or 
(b) the third party consents. 
(3) In this section, third party means a party to the proceeding concerned, other than the party who 
(a) made the admission; or 
(b) offered the evidence. 
Definitions: admission, document, hearsay, proceeding, s 4. 

evidence code and commentary 
Section 36 Admissions in civil proceedings 
C165 Under the common law, a statement against interest (defined as an "admission" in the Code) is admissible against the party who made it. Under the Code, an admission is admissible because it is relevant and generally reliable, since a party is unlikely to make an admission that is untrue. The restrictions of the hearsay rule are therefore unnecessary if a witness offers evidence of a party's admission made in writing or an admission the witness personally heard or saw the party making. The witness who offers the evidence can be cross-examined on any motive he or she may have to lie, or on the accuracy of his or her observation. However, a reasonable assurance of reliability is expressly required before an admission may be used to implicate a third party, unless there is consent. 
evidence code and commentary

s 37 EVIDENCE
Subpart 4 _ Previous consistent statements made by a witness 
37 Previous consistent statements rule 
A previous statement of a witness which is consistent with the witness's evidence is not admissible except 
(a) to the extent necessary to meet a challenge to that witness's truthfulness or accuracy; or 
Section 37 continues overleaf 

evidence code and commentary 
Subpart 4 _ Previous consistent statements made by a witness 
Section 37Previous consistent statements rule 
C166 The definition of "hearsay" does not include the previous statements of witnesses. Being a witness in the proceeding, the maker of a previous statement _ unlike the maker of a hearsay statement _ can be cross-examined on it. Previous statements are admissible if relevant and not excluded under s 37 or any other Code provision. 
C167 The only kind of previous statements excluded by s 37 are those that are consistent with a witness's testimony. "Consistent" does not simply mean the lack of inconsistency: there must be something in the witness's testimony with which the previous statement is consistent. The intention of s 37 is to prevent the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness's consistency. So if the witness's testimony is silent on a matter that is the subject of a previous statement, or if the witness's testimony is different from the content of a previous statement, s 37 will not exclude evidence of the previous statement. 
C168 Section 37(a) replaces the law on recent complaints in sexual cases: such complaints will now be admissible under this subsection, but only to meet a challenge to truthfulness _ for example, an allegation of recent invention. However, the complaints need not be "recent", and can be admitted to prove the truth of the contents. Paragraph (a) also replaces s 22A of the Evidence Act 1908 (which allows evidence to be admitted of a description the identifying witness gives to the prosecution before he or she identifies the accused as the offender), which has not been re-enacted. Under para (a), evidence of the description may be given to meet a challenge to truthfulness or accuracy. If there is no such challenge, the evidence will not be necessary. 
Section 37 commentary continues overleaf 
evidence code and commentary

s 37 EVIDENCE
(b) if the statement will provide the court with information which that witness is unable to recall. 
Definitions: party, previous statement, proceeding, statement, witness, s 4. 
Note: As to cross-examination on previous statements, see s 96. 

evidence code and commentary 
Section 37 commentary continued
C169 Section 37(b) is intended to cover the situation where a witness may wish to consult a previous statement containing details the witness cannot recall. Such a statement is not, strictly speaking, a previous consistent statement because the witness's evidence will not contain the details recorded in the statement. Paragraph (b) has been inserted to avoid unnecessary argument that such a statement is inadmissible and therefore cannot be used for the purpose of questioning a witness or cannot be consulted by a witness while giving evidence _ s 90(1) (use of written statements in questioning witnesses). For example, para (b) will enable a law enforcement officer to read directly from a contemporaneous note recording details of events about which the officer is giving evidence. 
C170 One effect of s 37, in combination with the definitions of "witness" and "give evidence", is that one witness may give evidence of a previous statement made by another witness even if the latter's evidence is given in an alternative way (such as in a pre-recorded video or by videolink), provided that the other witness is available for cross-examination. If the maker of the statement is not available for cross-examination, the statement is hearsay and must comply with the hearsay rules. 
C171 In most cases, the truthfulness rules will not apply to evidence of previous statements because such statements will not be solely or mainly about truthfulness _ s 4(2)(a). This may be the case even if a previous consistent statement is admitted to answer a challenge to truthfulness. By way of an example, a witness testifies that the defendant hit her friend. Suppose it is put to her that this is a recent fabrication, and evidence is given that immediately after the incident, she had told a police officer that the defendant had hit her friend. Her previous statement is capable of supporting the truth of her testimony because the contents of the two are the same. That content is not about her truthfulness as such (that is, whether she habitually tells the truth or lies). Likewise, a previous inconsistent statement is used to cross-examine a witness to suggest that his testimony is untrue because the content of his testimony is different from the content of his previous statement. In this situation also, the previous statement, although capable of showing that the witness's testimony is untrue, is not about the witness's truthfulness as such. 
C172 If a previous consistent statement is solely or mainly about truthfulness and is admitted to meet a challenge to truthfulness, it will almost always be substantially helpful in assessing truthfulness and therefore admissible under the truthfulness rules. 
evidence code and commentary

s 38 EVIDENCE
Subpart 5 _ Truthfulness and propensity 
38 Application of Subpart to evidence of truthfulness and propensity 
(1) This Subpart does not apply to evidence about a person's truthfulness if that truthfulness is an ingredient of the claim in a civil proceeding or one of the elements of the offence for which a person is being tried in a criminal proceeding. 
(2) This Subpart, except for section 46, does not apply so far as a proceeding relates to bail or sentencing. 
Definitions: proceeding, truthfulness, s 4. 

evidence code and commentary 
Subpart 5 _ Truthfulness and propensity 
C173 This Subpart reforms and replaces the common law rules on evidence about character and credibility of persons involved in proceedings. It contains provisions on evidence about the truthfulness and propensity of witnesses, including defendants, and those whose hearsay statements are admitted as evidence. It also includes provisions on the questions that may be asked and the evidence that may be offered about complainants in sexual cases. The rules in this division apply to both criminal and civil proceedings, unless the contrary is stated. 
C174 Section 4(2) sets out what truthfulness means for the purposes of this Subpart. 
Section 38Application of Subpart to evidence of truthfulness and propensity 
C175 Section 38(1) makes it clear that the rules in this Subpart do not apply when evidence of a person's truthfulness is an ingredient of a claim in a civil proceeding (which would occur only rarely; for example, in cases of malicious falsehood) or an ingredient of an offence in a criminal proceeding, an example being perjury. Nor, as s 38(2) states, do the rules in Subpart 5 apply in bail or sentencing proceedings, since neither raises the possibility of unfair prejudice to the defendant in relation to an ultimate finding of guilt. The exception is in sexual cases, because in bail and sentencing proceedings it may still be necessary to protect complainants by controlling questions and evidence about their sexual experience and reputation in sexual matters. 
evidence code and commentary

Evidence of truthfulness 

evidence code and commentary 
Evidence of truthfulness 
C176 Sections 39 to 41 comprise the rules on evidence of truthfulness. The Code distinguishes between two concepts that contribute to assessing credibility: reliability and truthfulness. The first is a function of the witness's ability to perceive and recall, and the second of the witness's intention to tell the truth. The concern in Subpart 5 is not with evidence of reliability or error, the admissibility of which is limited only by relevance and the general exclusionary rule. The concern is with evidence of truthfulness _ or, more usually, a lack of truthfulness. 
C177 The effect of ss 39 to 41 is to abolish the collateral issues rule. That rule prohibited a party from offering evidence intended to challenge a witness's answers to questions asked in cross-examination about his or her truthfulness. A party will now be able to offer evidence challenging a witness's answers to questions about his or her truthfulness, provided that the evidence is relevant, is not excluded on any of the grounds set out in s 8, and is likely to be substantially helpful in assessing that witness's truthfulness. 
C178 All evidence that is solely or mainly about a person's truthfulness must comply with the requirement of substantial helpfulness: in all cases the evidence must be substantially helpful in assessing the truthfulness of the person about whom it is offered. The purpose of the substantial helpfulness test is to avoid a volume of evidence that may only be marginally relevant in deciding what is itself a side issue. 
C179 When deciding whether evidence about a person's truthfulness is likely to be substantially helpful, a judge may appropriately consider whether the evidence tends to show that: 
• the person has been untruthful when under a legal obligation to tell the truth, such as in an earlier court proceeding or a signed declaration; 
• the person has been convicted of one or more offences, and the nature and number of the offences (convictions for some offences, such as perjury or fraud, may be more relevant to truthfulness than others, but the relevance of a previous conviction will also depend on the circumstances of the particular case); 
• the person has made a previous inconsistent statement; 
• the person is biased; 
• the person has a motive to be untruthful. 
Commentary continues overleaf 
evidence code and commentary

evidence code and commentary 
Commentary continued
C180 By way of an example, evidence that a witness has a conviction for drinking and driving is unlikely to be substantially helpful in assessing the truthfulness of a witness's denial of participation in an armed robbery _ as opposed to evidence that the witness is known to have lied on oath on a number of occasions. 
C181 It may also be appropriate for the judge to consider the time that has elapsed since the occurrence of the events to which the evidence of truthfulness relates. Thus, evidence of "ancient" convictions or lies is unlikely to be substantially helpful in assessing the truthfulness of a witness's testimony. 
evidence code and commentary

s 39 EVIDENCE
39 Truthfulness rules 
(1) A party may offer evidence in a civil or criminal proceeding about a person's truthfulness only if the evidence is substantially helpful in assessing that person's truthfulness. 
(2) A party may offer evidence in a criminal proceeding about a defendant's truthfulness only if, in addition to being substantially helpful in assessing that defendant's truthfulness, the evidence is offered in accordance with section 40 or 41. 
(3) A party who calls a witness may not offer evidence to challenge that witness's truthfulness unless the judge determines the witness to be hostile. 
(4) Subpart 1 (hearsay evidence) and Subpart 2 (opinion evidence and expert evidence) do not apply to exclude evidence about reputation that relates to truthfulness. 
(5) Section 42 (the propensity rule) does not apply to evidence that is solely or mainly relevant to truthfulness. 
Definitions: hearsay, hostile, judge, opinion rule, party, proceeding, truthfulness, s 4. 
Note: Section 4(2) provides that evidence about a person's truthfulness means evidence that is solely or mainly about a person's truthfulness. 

evidence code and commentary 
Section 39Truthfulness rules 
C182 Section 39(1)The requirement of substantial helpfulness applies to evidence about the truthfulness of any person. This includes any witness who gives evidence, as well as a person whose evidence is a statement admitted under the hearsay rule. 
C183 Section 39(2)preserves the protection the common law traditionally gives to defendants in criminal proceedings in relation to evidence of their bad character. Evidence about a defendant's truthfulness must not only be substantially helpful in assessing the defendant's truthfulness, but must also comply with the restrictions contained in ss 40 and 41. 
C184 Section 39(3) replaces s 9 of the Evidence Act 1908, which prevents a party from impeaching the credit of its own witness. 
C185 Section 39(4) suspends the operation of the hearsay and opinion rules in connection with evidence of a person's reputation (which would normally comprise both hearsay and opinion evidence) relating to truthfulness. 
C186 Section 39(5)Since evidence of a person's propensity to tell the truth or propensity not to tell the truth is evidence solely or mainly about truthfulness, it is subject to the truthfulness rules, and not the propensity rules. 
evidence code and commentary

s 40 EVIDENCE
40 Evidence of defendants' truthfulness 
(1) A defendant in a criminal proceeding may offer evidence about that defendant's truthfulness. 
(2) The prosecution in a criminal proceeding may offer evidence about a defendant's truthfulness, but cannot offer evidence that the defendant has committed, been charged with, or been convicted of an offence which is relevant to truthfulness (other than the offence for which the defendant is being tried) unless 
(a) the defendant has offered evidence about the defendant's truthfulness or challenging the truthfulness of a prosecution witness; and 
(b) the judge gives permission. 
Definitions: judge, proceeding, truthfulness, witness, s 4. 

evidence code and commentary 
Section 40Evidence of defendants' truthfulness 
C187 Under s 40(1) a defendant may offer evidence about his or her own truthfulness either personally or through another defence witness. 
C188 Section 40(2) allows the prosecution to challenge a defendant's truthfulness by cross-examining that defendant or by offering evidence through another witness. However, it protects defendants in criminal proceedings from evidence that they have committed, been charged with or been convicted of an offence concerning truthfulness, unless they themselves put truthfulness in issue. The section thus retains certain of the retaliatory features of the former common law rules governing the admissibility of prosecution evidence about a defendant's bad character. A judge would be expected to warn unrepresented defendants of the consequences of offering evidence about their own truthfulness or of challenging the truthfulness of a prosecution witness. 
C189 The requirement on the prosecution to obtain the permission of the judge provides a further measure of protection for the defendant. A judge is not likely to give permission if prosecuting counsel leads the defendant or a defence witness under cross-examination to impugn the truthfulness of a prosecution witness. 
evidence code and commentary

s 41 EVIDENCE
41 Evidence of co-defendants' truthfulness 
(1) A defendant in a criminal proceeding may offer evidence challenging the truthfulness of a co-defendant only if the evidence is relevant to the defence presented by the defendant. 
(2) A defendant in a criminal proceeding who proposes to offer evidence challenging the truthfulness of a co-defendant must give notice in writing to that co-defendant and every other co-defendant of the proposal to offer that evidence unless the requirement to give notice is waived by all the co-defendants or by the judge in the interests of justice. 
(3) A notice must 
(a) include the contents of the proposed evidence; and 
(b) be given a sufficient time before the hearing to provide all the co-defendants with a fair opportunity to prepare to meet that evidence. 
Definitions: judge, proceeding, truthfulness, s 4. 

evidence code and commentary 
Section 41Evidence of co-defendants' truthfulness 
C190 Section 41(1) For example, if A and B are jointly charged with the same incident of assault, and each accepts having been present at the scene at the relevant time but claims the other carried out the assault, then the truthfulness of each is relevant to the other's defence. In this situation, A does not have to wait until B puts her own truthfulness in issue by offering favourable evidence about herself or by attacking A, but the evidence A offers must be solely or mainly about B's truthfulness and must be substantially helpful in assessing B's truthfulness. 
C191 Section 41(2)The notice requirement seeks to strike a balance between the right of a defendant to conduct an effective defence, and the right of a codefendant to be protected from prejudicial evidence of little relevance or probative value. One situation where the interests of justice may incline a judge to waive the notice requirement is where the evidence was not known to counsel and a witness unexpectedly discloses it in the course of giving evidence at trial. 
C192 Section 41(3)The notice should allow sufficient time to consider whether to apply for severance. 
evidence code and commentary

s 42 EVIDENCE
Evidence of propensity 
42 Propensity rule 
(1) A party may offer propensity evidence in a civil or criminal proceeding about any person, but such evidence may be offered about 
(a) a defendant in a criminal proceeding, only in accordance with sections 43, 44, and 45; and 
(b) a complainant in a sexual case in relation to the complainant's sexual experience, only in accordance with section 46. 
(2) Subpart 1 (hearsay evidence) and Subpart 2 (opinion evidence and expert evidence) do not apply to evidence of a person's reputation that relates to propensity. 
Definitions: party, proceeding, propensity evidence, sexual case, s 4. 

evidence code and commentary 
Section 42 Propensity rule 
C193 Section 4 defines propensity evidence as evidence of a person's disposition or behaviour that tends to show a propensity to act in a particular way or to have a particular state of mind. The definition does not differentiate between propensity evidence offered to prove guilt in a criminal proceeding and propensity evidence offered for some other purpose. Thus propensity evidence can be used to show that a person was at a cricket match on a particular Saturday by proving that he or she had been regularly attending cricket matches at that venue on each Saturday for a number of years. Another common form of propensity evidence is "good character" evidence. In both cases, admissibility will be governed by relevance and the other matters set out in s 8 (general exclusion). 
C194 The Code reflects the law's traditional concern with the prejudice associated with propensity evidence that reflects badly on the character of a defendant in a criminal case. Sections 43 to 45 impose special controls on the admissibility of such evidence in the various circumstances in which it may be offered at a trial. Likewise, the law has come to recognise the unfairness and lack of probative value of propensity evidence about the sexual experience of a complainant in a sexual case. This sort of evidence is now controlled by s 46. Finally, s 39(5) makes it clear that when evidence fits the definition of propensity evidence but is solely or mainly relevant to a person's truthfulness, the truthfulness rules (s 39), and not the propensity rules, govern admissibility. 
C195 Section 42(2) removes the operation of the hearsay and opinion rules in connection with evidence of a person's reputation (which would normally comprise both hearsay and opinion evidence) relating to propensity. 
evidence code and commentary

s 43 EVIDENCE
43 Propensity evidence about defendants 
(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself. 
(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the judge, offer propensity evidence about that defendant. 
(3) Section 45 does not apply to propensity evidence offered by the prosecution under subsection (2). 
Definitions: judge, proceeding, propensity evidence, s 4. 

evidence code and commentary 
Section 43Propensity evidence about defendants 
C196 Under s 43(1) a defendant may offer propensity evidence about himself or herself either personally or through another witness. 
C197 Under s 43(2), once the defendant has put his or her own propensity in issue by offering evidence of it, the prosecution may cross-examine the defendant on his or her propensity or offer evidence of the defendant's propensity through another witness. A judge would be expected to warn an unrepresented defendant of the consequences of offering propensity evidence about himself or herself. By virtue of s 43(3), the restrictions of s 45 do not apply to evidence of a defendant's propensity offered by the prosecution under s 43(2). However, the requirement for permission enables the judge to prevent unfairness to the defendant. For example, if a defendant offers evidence about his or her regular attendance at cricket matches to show that he or she was there on a particular occasion and therefore could not have been at the crime scene, the judge is unlikely to allow the prosecution to retaliate by offering totally unrelated propensity evidence consisting of the defendant's previous convictions. 
C198 A defendant should be able to assert, as part of his or her defence, that a prosecution witness is more likely to have committed the offence for which he or she is being tried, without opening himself or herself to a general attack on propensity. Therefore if a defendant offers evidence about the propensity of a prosecution witness, the prosecution's retaliatory evidence about the defendant's propensity must comply with s 45. 
evidence code and commentary

s 44 EVIDENCE
44 Propensity evidence about co-defendants 
(1) A defendant in a criminal proceeding may offer propensity evidence about a co-defendant only if that evidence is relevant to the defence presented by the defendant. 
(2) A defendant in a criminal proceeding who proposes to offer propensity evidence about a co-defendant must give notice in writing to that co-defendant and every other co-defendant of the proposal to offer that evidence unless the requirement to give notice is waived by all the co-defendants or by the judge in the interests of justice. 
(3) A notice must 
(a) include the contents of the proposed evidence; and 
(b) be given a sufficient time before the hearing to provide all the co-defendants with a fair opportunity to prepare to meet that evidence. 
Definition: judge, proceeding, propensity evidence, s 4. 

evidence code and commentary 
Section 44Propensity evidence about co-defendants 
C199 Section 44 allows a defendant to offer propensity evidence about a co-defendant in the same proceeding provided that the evidence is relevant to the defendant's defence and notice is given. It operates whether or not the defendant gives evidence in person. The purpose of s 44 is not to fetter the defendant's right to present a defence, but to ensure that in exercising that right the defendant does not engage in irrelevant attacks on co-defendants. 
C200 Section 44(3)The notice should allow sufficient time to consider whether to apply for severance. 
evidence code and commentary

s 45 EVIDENCE
45 Propensity evidence offered by prosecution about defendants 
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence 
(a) is of acts or omissions of which there is sufficient evidence for a fact-finder acting reasonably to find that the defendant was the person involved; and 
(b) has a probative value in relation to an issue in dispute in the proceeding which clearly outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. 
(2) When assessing the probative value of propensity evidence, the judge must take into account the nature of the issue in dispute. 
(3) When assessing the probative value of propensity evidence, the judge may consider, among other matters, the following: 
(a) the frequency with which the acts or omissions which are the subject of the evidence have occurred; 
(b) the connection in time between the acts or omissions which are the subject of the evidence and the acts or omissions which constitute the offence for which the defendant is being tried; 
(c) the extent of the similarity between the acts or omissions which are the subject of the evidence and the acts or omissions which constitute the offence for which the defendant is being tried; 
(d) the number of persons making allegations against the defendant that are the same as or similar to that which is the subject of the offence for which the defendant is being tried and whether those allegations may be the result of collusion or suggestibility; 
(e) the extent to which the acts or omissions which are the subject of the evidence and the acts or omissions which constitute the offence for which the defendant is being tried are unusual. 
Section 45 continues overleaf 

evidence code and commentary 
Section 45Propensity evidence offered by prosecution about defendants 
C201 Section 45(1), in largely codifying the common law, recognises the prejudicial nature of propensity evidence for defendants in criminal proceedings by providing added protection. Propensity evidence offered by the prosecution about a defendant in a criminal proceeding must 
• be about acts or omissions that are prima facie those of the defendant; 
• relate to an issue in dispute in the proceeding; and 
• have a probative value that clearly outweighs the risk of being unfairly prejudicial to the defendant. 
C202 Since evidence of a person's propensity to tell the truth or propensity not to tell the truth is evidence solely or mainly about truthfulness, it is subject to the truthfulness rules, and not the propensity rules. 
C203 Section 45(2) makes it mandatory for the judge to take into account the nature of the issue in dispute when deciding whether or not to admit propensity evidence. For example, the threshold for admitting propensity evidence tending to prove guilty knowledge in a case where the possession of stolen property is not disputed, is likely to be lower than for admitting propensity evidence tending to identify the defendant as the perpetrator of a crime. The reason is that the former is likely to be less unfairly prejudicial to the defendant than the latter. The overriding factor will always be the test in s 45(1). 
C204 Section 45 does not apply to propensity evidence about a defendant offered by the prosecution under s 43(2) _ that is, after the defendant has offered propensity evidence about himself or herself. But s 45 does apply to propensity evidence about a defendant offered by the prosecution in response to propensity evidence offered by a defendant about a prosecution witness: see the discussion in C198. 
C205 The matters listed in s 45(3) on the probative value side of the balance follow the case law on admissibility of similar fact evidence. 
Section 45 commentary continues overleaf 
evidence code and commentary

s 45 EVIDENCE
(4) When assessing the prejudicial effect of evidence on the defendant, the judge must consider, among other matters, 
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and 
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions. 
Definitions: judge, proceeding, propensity evidence, s 4. 

evidence code and commentary 
Section 45 commentary continued
C206 When assessing prejudicial effect under s 45(4), a judge is likely to take into account the extent to which the matters set out in paras (a) and (b) can be mitigated by an appropriate direction to the jury. 
evidence code and commentary

s 46 EVIDENCE
Complainants in sexual cases 
46 Evidence of the sexual experience of complainants in sexual cases 
(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge. 
(2) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with the defendant unless the evidence or question relates directly to the acts, events, or circumstances which constitute the offence for which the defendant is being tried or is of such direct relevance to facts in issue in the proceeding or the issue of the appropriate sentence that it would be contrary to the interests of justice to exclude it. 
(3) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the reputation of the complainant in sexual matters 
(a) for the purpose of supporting or challenging the truthfulness of the complainant; or 
(b) for the purpose of establishing the complainant's consent; or 
(c) for any other purpose except with the permission of the judge. 
Section 46 continues overleaf 

evidence code and commentary 
Complainants in sexual cases 
Section 46Evidence of the sexual experience of complainants in sexual cases 
C207 Section 46 modifies the current New Zealand rape shield provision, s 23A of the Evidence Act 1908. 
C208 The amendments reinforce the purpose of rape shield law, which is to exclude evidence of the complainant's sexual experience or reputation in sexual matters if such evidence is not probative. 
C209 Section 46(1) largely re-enacts the general rule in s 23A(2)(a) of the Evidence Act 1908 that permission must be granted before any evidence may be offered or any question may be put about the complainant's sexual experience with people other than the defendant. 
C210 Section 46(2) is new in extending the test of direct relevance to evidence about the complainant's sexual experience with the defendant. The intention is to signal a point that may be overlooked _ that the fact a complainant has had a sexual encounter with a defendant does not necessarily indicate the complainant's consent, or the defendant's reasonable belief in the complainant's consent, on the occasion in question. The reference to the offence for which the defendant is being prosecuted is intended to avoid any argument that the complainant's sexual experience with the defendant includes the incident that is the subject matter of the trial. 
C211 Section 46(3) amends the existing provision (s 23A(2)(b)) by prohibiting questions or evidence about the complainant's reputation in sexual matters if the purpose of such questions or evidence is merely to challenge the complainant's truthfulness or to establish the complainant's consent _ s 46(3)(a) and (b) _ and by requiring the permission of the judge for any other purpose _ s 46(3)(c). 
Section 46 commentary continues overleaf 
evidence code and commentary

s 46 EVIDENCE
(4) In an application for permission under subsection (1) or (3)(c), the judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding or the issue of the appropriate sentence that it would be contrary to the interests of justice to exclude it. 
(5) The permission of the judge is not required to rebut or contradict evidence given under subsection (1) or (3)(c). 
(6) Subsection (1) does not apply where the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant. 
(7) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section. 
Definitions: judge, party, proceeding, sexual case, truthfulness, witness, s 4. 

evidence code and commentary 
Section 46 commentary continued
C212 Section 46(3) does not preclude evidence of a complainant's reputation to lie about sexual matters; for example, a reputation for making false allegations of sexual assault. Such evidence is about reputation for truthfulness (or lack of it), not about reputation in sexual matters, and is admissible provided that it complies with the truthfulness rules. 
C213 Section 46(4) re-enacts the substance of s 23A(3) of the Evidence Act 1908. 
C214 Section 46(5) re-enacts the substance of s 23A(4)(a) of the Evidence Act 1908. 
C215 Section 46(6) re-enacts the substance of s 23A(4)(b) of the Evidence Act 1908. 
C216 Section 46(7) re-enacts the substance of s 23A(6) of the Evidence Act 1908. 
evidence code and commentary

s 47 EVIDENCE
Subpart 6 _ Identification evidence 
47 Admissibility of visual identification evidence 
(1) If a formal procedure is observed by officers of an enforcement agency in obtaining visual identification evidence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable. 
Section 47 continues overleaf 

evidence code and commentary 
Subpart 6
Identification evidence 
Section 47Admissibility of visual identification evidence 
C217 The Code does not give preference to any particular modes of visual identification, such as live parades. Instead there is an underlying presumption, based on recent research, that visual identification evidence obtained by following a procedure that incorporates certain specified elements (called a "formal procedure") will generally be reliable and therefore should be admissible; and conversely, that visual identification evidence obtained without following such a procedure will generally not be reliable and therefore should be inadmissible. 
C218 The formal procedure is not intended to apply if the identification witness is the enforcement officer who arrested or participated in arresting a defendant. The ordinary and natural meaning of the words of s 47(1), read together with the definition of "visual identification evidence" ("a formal procedure . . . observed by [an enforcement officer] in obtaining . . . an assertion by a person to the effect that a defendant . . . was present at a place") clearly does not apply to such a situation. Section 47 does not preclude the admissibility of such identification evidence, and the issue is one of weight for the fact-finder. 
C219 This Subpart applies to the identification of defendants as well as of persons other than defendants whose identification is crucial in proving the case against the defendant, an example being the identification of one of the victims in R v Tamihere [1991] 1 NZLR 195 (CA). 
C220 The provisions of this section apply to all enforcement officers, not just members of the Police Force. The Code recognises that it will not always be possible or necessary to follow a formal procedure. Thus, the presumption of admissibility also applies if there is good reason for not following a formal procedure. An example is the police practice of driving around in the vicinity of the crime scene with the victim or other identifier in the police vehicle shortly after a crime is reported, to see if he or she can spot the alleged offender _ s 47(4)(e). Similarly, there is no intention to impose the requirements of a formal procedure if the person to be identified is so well known to the identifier that the risk of a mistaken identification is virtually non-existent; for example, where they are members of the same family _ s 47(4)(d). 
Section 47 commentary continues overleaf 
evidence code and commentary

s 47 EVIDENCE
(2) If a formal procedure is not observed by officers of an enforcement agency in obtaining visual identification evidence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made were likely to have produced a reliable identification. 
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence 
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and 
(b) in which the person to be identified is compared to no fewer than 8 other persons who are similar in appearance to the person to be identified; and 
(c) in which no indication is given to the witness as to which of the persons in the procedure is the person to be identified; and 
(d) in which the witness is informed that the offender or other person to be identified may or may not be one of the persons being compared; and 
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the judge and the defendant (but not the jury) at the hearing; and 
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the judge and the defendant (but not the jury) at the hearing. 
Section 47 continues overleaf 

evidence code and commentary 
Section 47 commentary continued
C221 The provisions of ss 344B and 344C of the Crimes Act 1961 have not been altered by this Subpart. 
C222 Section 47(1)The standard of proof on the defendant to show that visual identification evidence is unreliable, notwithstanding compliance with a formal procedure or the existence of good reason, is on the balance of probabilities. 
C223 Section 47(2)If, for no good reason, a formal procedure has not been followed, the visual identification evidence is inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances surrounding the identification were likely to have produced a reliable identification. One important factor the judge is likely to take into account in assessing reliability under this subsection is how many of the requirements of the formal procedure have been met. 
C224 Section 47(3)This subsection sets out the features of a formal procedure for obtaining visual identification evidence. These features are applicable to all modes of visual identification _ live parade, photograph montage, computerised photographic image montage, or video parade. All the features must be present. They are intended to promote reliability and to eliminate opportunities for prompting the identification witness, either intentionally or unintentionally. Additionally, paras (e) and (f) will provide the judge and the defendant with a record of the process. 
C225 The intended effect of ss 47(2) and (3) is to preclude visual identification evidence consisting of a witness identifying a defendant for the first and only time by pointing to the defendant in the dock. It would be hard to convince the judge beyond reasonable doubt that such evidence would be reliable. 
Section 47 commentary continues overleaf 
evidence code and commentary

s 47 EVIDENCE
(4) The circumstances referred to in the following paragraphs, and no others, are good reasons for not following a formal procedure: 
(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or video record of that person); or 
(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared); or 
(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure; or 
(d) no officer of the enforcement agency could reasonably anticipate that identification would be an issue at the trial of the defendant; or 
(e) where an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer's initial investigation; or 
(f) where an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a fortuitous meeting between the person who made the identification and the person alleged to have committed the offence. 
Definitions: enforcement agency, judge, proceeding, video record, visual identification evidence, witness, s 4. 

evidence code and commentary 
Section 47 commentary continued
C226 Section 47(4)Since identification evidence is prima facie admissible if there was good reason for not following a formal procedure in obtaining it, the situations listed in s 47(4) are intended to be exhaustive. Even if none of these factors exists, it will still be open to the prosecution to seek to prove beyond reasonable doubt that the circumstances in which the identification was made were likely to have produced a reliable identification _ s 47(2). 
C227 An example of a situation to which para (d) is intended to apply is where a group of people who witnessed an incident are subsequently called to give evidence, and in the course of doing so each names the others as having been present. 
C228 An example of para (f) is a chance encounter, for example in a dairy, when a witness recognises the alleged offender. 
evidence code and commentary

s 48 EVIDENCE
48 Admissibility of voice identification evidence 
Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made were likely to have produced a reliable identification. 
Definitions: voice identification evidence, proceeding, s 4. 

evidence code and commentary 
Section 48Admissibility of voice identification evidence 
C229 Recent research suggests that voice identification is generally even less reliable than visual identification. There is therefore a presumption that voice identification is unreliable, requiring the prosecution to prove beyond reasonable doubt the likelihood that the particular identification was reliable. 
evidence code and commentary

s 49 EVIDENCE
Subpart 7 _ Evidence of convictions and civil judgments 
49 Conviction as evidence in civil proceedings 
(1) When the fact that a person has committed an offence is relevant to an issue in a civil proceeding, evidence of that person's conviction of that offence is admissible and, on proof of that conviction, it will be presumed, in the absence of proof to the contrary, that the person committed that offence. 
(2) This section applies 
(a) whether or not the person convicted is a party to the proceeding; and 
(b) whether or not the person was convicted on a guilty plea. 
(3) Any party to a civil proceeding in which evidence of a conviction is admitted under this section may offer evidence tending to prove that the person convicted did not commit the offence of which that person was convicted. 
(4) This section does not affect a provision in any other enactment to the effect that a conviction or a finding of fact in a criminal proceeding is to constitute conclusive evidence for the purposes of any other proceeding. 
Definitions: conviction, party, proceeding, s 4. 

evidence code and commentary 
Subpart 7
Evidence of convictions and civil judgments 
C230 This Subpart extends the abolition of the rule in Hollington v F Hewthorn & Co [1943] KB 587 CA, effected by ss 23 and 24 of the Evidence Amendment Act (No 2) 1980. It makes evidence of a person's conviction presumptive proof in a subsequent criminal or civil proceeding, and conclusive proof in a defamation proceeding, that the person committed the offence. "Conviction" is defined in s 4. Note the convenient way of proving convictions provided by s 123. The definition of "proceeding" (also in s 4) means that the rules in this Subpart only apply to court proceedings. 
C231 The Code has no express provisions covering evidence of acquittals. Under the Code, evidence of an acquittal is admissible for the purposes of autrefois acquit, issue estoppel and in a claim of malicious prosecution, being relevant in terms of s 7: "having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding". 
Section 49Conviction as evidence in civil proceedings 
C232 This section replaces and extends s 23 of the Evidence Amendment Act (No 2) 1980, which allows evidence of a person's conviction of an offence to be given in a civil proceeding as proof that the person committed that offence. Under this section, the person is presumed to have committed the offence for which he or she was convicted. The presumption may be rebutted by proof to the contrary on the balance of probabilities. Any party to the civil proceeding may offer evidence to rebut the presumption. 
evidence code and commentary

s 50 EVIDENCE
50 Conviction as evidence in defamation proceedings 
In a proceeding for defamation based on a statement made by a person to the effect that some other person has committed an offence, the conviction of that person of that offence is admissible in evidence in the proceeding and is conclusive proof that that person committed that offence if the conviction subsisted when the statement was made or the conviction occurs after the statement was made. 
Definitions: conviction, proceeding, statement, s 4. 

evidence code and commentary 
Section 50Conviction as evidence in defamation proceedings 
C233 This section replaces and extends s 24 of the Evidence Amendment Act (No 2) 1980. Under s 24, in a defamation proceeding based on a statement by one person (A) that another person (B) has committed an offence, evidence of B's conviction is "sufficient evidence in the absence of proof to the contrary" that B committed the offence. Under s 50, evidence of B's conviction is conclusive proof that B committed the offence for which he was convicted. In other words, proof of B's conviction will give A a complete defence of truth under s 8 of the Defamation Act 1992. Section 50 applies irrespective of whether B is convicted before or after A makes the statement: a subsequent conviction equally justifies A's allegation. 
evidence code and commentary

s 51 EVIDENCE
51 Conviction as evidence in criminal proceedings 
(1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Code, admissible in a criminal proceeding and, on proof of the conviction, it will be presumed, in the absence of proof to the contrary, that the convicted person committed that offence. 
(2) A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the judge of the purpose of offering that evidence. 
Definitions: conviction, judge, party, proceeding, s 4. 
52 Civil judgment as evidence in civil or criminal proceedings 
(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given. 
(2) This section does not affect the operation of 
(a) a judgment in rem; or 
(b) the law relating to res judicata or issue estoppel. 
Definition: proceeding, s 4. 

evidence code and commentary 
Section 51Conviction as evidence in criminal proceedings 
C234 Under this section, evidence of a person's conviction is admissible in a criminal proceeding. That person is presumed, in the absence of proof to the contrary, to have committed the offence for which he or she was convicted. Any party may offer the evidence of the convictions; equally, any party, not just the convicted person, may offer evidence in rebuttal. The evidence is only admissible if it is not excluded by any other provision in the Code. 
C235 The prior requirement in s 51(2) to inform the judge of the purpose of offering the evidence enables the judge to consider whether the evidence is excluded by the operation of any other rule in the Code. For example, if evidence of a person's convictions is offered for the purpose of attacking that person's truthfulness, that evidence must be substantially helpful in assessing his or her truthfulness; and if that person is a defendant in the proceeding, either s 40 or s 41 of this Code will apply, depending on who is offering that evidence. Similarly, if the evidence is offered for the purpose of proving propensity, the relevant propensity rule will apply (ss 43, 44 and 45). If the evidence is offered by one defendant against a co-defendant, notice must be given under s 41 or s 44. 
C236 Examples of where evidence of a conviction may be relevant to an issue in the case are: evidence of a conviction of a third party for theft to support a charge of being an accessory after the fact; or evidence of a defendant's conviction for assault in a later murder trial where the victim dies of the injuries. 
Section 52Civil judgment as evidence in civil or criminal proceedings 
C237 This section codifies the existing law, including the law relating to judgments in rem and res judicata or issue estoppel. 
evidence code and commentary

s 53 EVIDENCE
Part 4
Privilege and confidentiality 
53 Interpretation 
(1) In this Part 
employed legal adviser means a person who holds a current practising certificate issued under the Law Practitioners Act 1982 and is a partner or employee of a person who does not hold a current practising certificate issued under that Act, but does not include a person who is employed by the Crown Law Office. 
legal adviser means a person who holds a current practising certificate issued under the Law Practitioners Act 1982 and 
(a) practises on his or her own account as a barrister, a barrister and solicitor, or a solicitor as 
(i) a sole practitioner; or 
(ii) a partner of a partnership which consists only of persons who hold current practising certificates issued under that Act; or 
(b) is employed by such a sole practitioner or partnership as is referred to in paragraph (a); or 
(c) is employed by the Crown Law Office; or 
(d) is a registered patent attorney; or 
(e) is an employed legal adviser. 
(2) A reference in this Part to a communication made or received by a person or an act carried out by a person includes a reference to a communication made or received or an act carried out by an authorised representative of that person on that person's behalf. 
(3) Subsection (2) does not apply to 
(a) section 59 (Privilege for communications with ministers of religion); 
(b) section 60 (Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists); 
(c) section 65 (Informers). 
Definitions: clinical psychologist, s 60; informer, s 65; minister of religion, s 59. 

evidence code and commentary 
Part 4
Privilege and confidentiality 
Section 53 Interpretation 
C238 The definition of "proceeding" in s 4 does not include an arbitration. However, witnesses appearing before an arbitral tribunal have the same privileges and immunities as witnesses in court proceedings _ see the discussion in C33. 
C239 In s 53(1), the separate definition of employed legal adviser (ie, an in-house lawyer employed by a commercial firm or by a government department other than the Crown Law Office) is needed for the purposes of s 55(3), which is intended to ensure that the privilege of such employers is confined to communications made with employed legal advisers when the latter are acting in the capacity and doing the work of lawyers. The definition of legal adviser embraces all holders of current practising certificates. It includes patent attorneys, who were given a privilege analogous to legal professional privilege by s 34 of the Evidence Amendment Act (No 2) 1980. 
C240 Section 53(2) extends privilege to communications by and to agents of the persons concerned. Because of s 53(3), this extension does not apply to the privilege for communications with ministers of religion or by informers, since it is considered that, in their cases, the privilege should be confined to direct communications. Nor does it apply to medical practitioners and clinical psychologists in the circumstances defined by s 60, since s 60(5) provides more specific coverage. 
evidence code and commentary

s 54 EVIDENCE
54 Effect and protection of privilege 
(1) A person who has a privilege conferred by this Part in respect of a communication has the right to refuse to disclose in a proceeding 
(a) the communication; and 
(b) any information contained in that communication; and 
(c) any opinion formed by a person which is based upon that communication or information. 
(2) A person who has a privilege conferred by this Part in respect of information or a document has the right to refuse to disclose in a proceeding that information or document and any opinion formed by a person which is based upon that information or document. 
(3) A person who has a privilege conferred by this Part in respect of a communication, information, opinion, or document may require that the communication, information, opinion, or document must not be disclosed in a proceeding 
(a) by the person to whom the communication is made or the information given, or by whom the opinion is given or the information or document prepared or compiled; or 
(b) by any other person who has come into possession of it with the authority of the person who has the privilege, in confidence and for purposes related to the circumstances that have given rise to the privilege. 
(4) Where a communication, information, opinion, or document, in respect of which a person has a privilege conferred by this Part, is in the possession of a person other than a person referred to in subsection (3), a judge may, of the judge's own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document must not be disclosed in a proceeding. 
Definitions: document, judge, proceeding, s 4. 

evidence code and commentary 
Section 54Effect and protection of privilege 
C241 Section 54(1) gives an extended meaning to references to a communication in this Part. Sections 54(2) and (3) set out the basic effect of privilege, namely that the person entitled to the privilege has a right to refuse to disclose the privileged information and to forbid those properly in possession of such information to disclose it. 
C242 Section 54(4) deals with the situations of others who may have acquired the information; for example, by accident or dishonestly. 
C243 Section 54 does not apply to material that is protected through the exercise of a judicial discretion to protect confidential information. The judge determines the extent to which this material is protected. Section 54 also does not apply to s 66, which does not create a privilege but merely protects the identity of journalists' sources by granting limited non-compellability to journalists and their employers. Nor does it apply to s 61 because the privilege against self-incrimination is not in fact a true privilege but a right not to be compelled to give self-incriminating testimony. 
evidence code and commentary

s 55 EVIDENCE
55 Privilege for communications with legal advisers 
(1) A person who requests professional legal services from a legal adviser has a privilege in respect of any communication between that person and that legal adviser if the communication was 
(a) intended to be confidential; and 
(b) made in the course of and for the purpose of obtaining professional legal services from or giving such services to the person by the legal adviser. 
(2) In this section, professional legal services means, in the case of a registered patent attorney, obtaining or giving information or advice relating to any patent, design, or trademark, or to any application in respect of a patent, design, or trademark, whether or not the information or advice relates to a matter of law. 
(3) In the case of professional legal services obtained from an employed legal adviser, this section confers a privilege only in respect of professional legal services provided by an employed legal adviser solely in the capacity of a legal adviser. 
Definitions: employed legal adviser, legal adviser, s 53(1). 

evidence code and commentary 
Section 55Privilege for communication with legal advisers 
C244 Section 55(1) spells out what is essentially the present law on privilege for legal advice. Section 55(2)(a) reproduces the special provisions for patent attorneys now to be found in s 34(4) of the Evidence Amendment Act (No 2) 1980. Because employed legal advisers are often required to perform duties that do not come within the professional functions of a legal adviser, and to avoid misusing the privilege by extending it beyond activities usually done by a lawyer, s 55(3) makes it clear that the privilege exists only when an employed legal adviser is acting in the capacity of a legal adviser. 
evidence code and commentary

s 56 EVIDENCE
56 Privilege and solicitors' trust accounts 
(1) This section applies to books of account and accounting records kept by a solicitor in relation to 
(a) any trust account money that is subject to section 89 of the Law Practitioners Act 1982; or 
(b) any solicitors' nominee company operated by a solicitor with the consent of the relevant District Law Society as a nominee in respect of securities and documents of title held for clients. 
(2) Section 55 does not prevent, limit, or affect 
(a) the issue of a search warrant under section 198 of the Summary Proceedings Act 1957, or the execution of any such warrant issued by a District Court Judge, in respect of any document to which this section applies; or 
(b) the offering of any evidence relating to the contents of any such document obtained under such a warrant in any criminal proceeding for any offence described in the warrant, where the warrant was issued by a District Court Judge. 
Definitions: document, proceeding, s 4. 

evidence code and commentary 
Section 56Privilege and solicitors' trust accounts 
C245 This section re-enacts the substance of s 35A of the Evidence Amendment Act (No 2) 1980 and excludes the operation of the privilege for communications with legal advisers, to allow a solicitor's records of trust accounts and nominee company accounts to be seized under a search warrant and later used in evidence. 
evidence code and commentary

s 57 EVIDENCE
57 Privilege for preparatory materials for proceedings 
(1) A person who is a party to, or contemplates on reasonable grounds becoming a party to, a proceeding (referred to in this section as the "party") has a privilege in respect of 
(a) any communication between the party, or that party's legal adviser, and any other person, 
(b) any information compiled or prepared by the party or that party's legal adviser, 
(c) any information compiled or prepared at the request of the party, or that party's legal adviser, by any other person, 
if the dominant purpose of making or receiving the communication or compiling or preparing the information was to prepare for the proceeding. 
(2) Subsection (1) does not apply in respect of a communication or information if the proceeding in question is under, or to be under, the Guardianship Act 1968 unless the proceeding is a criminal proceeding for an offence under that Act. 
Definitions: party, proceeding, s 4; legal adviser, s 53(1). 

evidence code and commentary 
Section 57Privilege for preparatory materials for proceedings 
C246 Section 57(1) is intended to state the existing law as laid down by the Court of Appeal in Guardian Royal Exchange Assurance Ltd v Stuart [1985] 1 NZLR 596. The exception in s 57(2) reflects the view of the House of Lords expressed in In Re L [1997] AC 16 that a distinction is to be drawn between the litigation privilege appropriate to adversarial processes and proceedings where the welfare of a child is paramount. 
evidence code and commentary

s 58 EVIDENCE
58 Privilege for settlement negotiations 
(1) A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication was intended to be confidential and was made in connection with an attempt to settle the dispute between the persons. 
(2) A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document which that person has prepared, or caused to be prepared, in connection with an attempt to negotiate a settlement of the dispute. 
(3) This section does not apply 
(a) where an agreement settling the dispute has been concluded; or 
(b) in a proceeding where the conclusion of such an agreement is in issue. 
Definitions: document, judge, party, proceeding, s 4. 

evidence code and commentary 
Section 58Privilege for settlement negotiations 
C247 This section is intended to state the existing law. The usual but not the only way of indicating the intention referred to in s 58(1) will be to employ the expression "without prejudice". The privilege created by this subsection belongs to both parties, not just the party who makes the communication. Section 58(2) applies the privilege to documents prepared by or at the instigation of one party in connection with attempts at settlement but not communicated to the other party. Examples would be preparatory notes about possible points of agreement, or information compiled at the request of the other party as a pre-condition for negotiation. Here the privilege would belong only to the party who prepared the document. 
C248 Section 58(3) is inserted to remove doubt. If the parties reach agreement, there is then a contract on which either party may sue. In that litigation, it must of course be possible to refer not only to the agreement made, but also _ if, for example, one party alleges that the agreement was induced by mistake or misrepresentation _ to the communications relied on to support that allegation. 
evidence code and commentary

s 59 EVIDENCE
59 Privilege for communications with ministers of religion 
(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was 
(a) made in confidence to or by the minister in the minister's capacity as a minister of religion; and 
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit or comfort. 
(2) A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community which requires or calls for that person to receive confidential communications of the kind referred to in subsection (1) and to respond with religious or spiritual advice, benefit, or comfort. 

evidence code and commentary 
Section 59Privilege for communications with ministers of religion 
C249 The corresponding provision in the present law (s 31 of the Evidence Amendment Act (No 2) 1980) protects sacramental confessions. The Code provision is concerned with religious or spiritual advice, a wider term but not extending to all counselling that a clergyman may give (for example, budget advice from a City Missioner). Advice not within the term "religious or spiritual advice" may of course still be protected by s 67 (overriding discretion as to confidential information). The definition of minister of religion in s 59(2) is intended to extend beyond persons ordained under a traditional organisational structure. 
evidence code and commentary

s 60 EVIDENCE
60 Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists 
(1) This section applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct, but does not apply in the case of a person who has been required by an order of a judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or other purpose. 
(2) A person has a privilege in a criminal proceeding in respect of any communication made by the person to a medical practitioner or clinical psychologist which the person believes is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. 
(3) A person has a privilege in a criminal proceeding in respect of information obtained by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. 
(4) A person has a privilege in a criminal proceeding in respect of information consisting of a prescription, or notes of a prescription, for treatment prescribed by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to treat or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. 
(5) A reference in this section to a communication to or information obtained by a medical practitioner or a clinical psychologist is to be taken to include a reference to a communication to or information obtained by a person acting in a professional capacity on behalf of a medical practitioner or clinical psychologist in the course of the examination or treatment of, or care for, the person by that medical practitioner or clinical psychologist. 
Section 60 continues overleaf 

evidence code and commentary 
Section 60Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists 
C250 The precursor of this section is s 33 of the Evidence Amendment Act (No 2) 1980. This section applies only to criminal proceedings. It protects communications between patient and medical practitioner or a clinical psychologist in circumstances where the patient has consulted the medical practitioner or clinical psychologist for assistance relating to drug dependency or any other condition or behaviour (a paedophiliac propensity, for example) that may manifest itself in criminal conduct. Its purpose is to encourage such persons to obtain assistance and to enable them to communicate candidly with those from whom they seek help. The protection extends (s 60(3)) to communications from the patient and also to information the practitioner obtains by examining the patient, as well as (s 60(4)) to prescriptions for treatment and (s 60(5)) to communications to people such as practice nurses acting in a professional capacity on behalf of the practitioner. 
C251 Communications between patient and other health professionals such as physiotherapists or occupational therapists are protected under s 67 (overriding discretion as to confidential information). 
evidence code and commentary

s 60 EVIDENCE
(6) In this section 
clinical psychologist means a psychologist registered under the Psychologists Act 1981 who is engaged in the diagnosis and treatment of persons suffering from mental and emotional problems. 
drug dependency means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug (as defined in section 2(1) of the Misuse of Drugs Act 1975) detrimental to the user, and involving a compulsive desire to continue consuming, smoking or otherwise using the drug or a tendency to increase the dose of the drug. 
Definitions: judge, proceeding, s 4. 
61 Privilege against self-incrimination 
(1) A person who is required to provide specific information 
(a) in the course of a proceeding, or 
(b) by a person exercising a statutory power or duty, or 
(c) by a police officer or other person holding a public office in the course of an investigation into a criminal offence or a possible criminal offence, 
has a privilege in respect of that information and cannot be required to provide that information if to do so would be likely to incriminate that person in such a manner that the person is liable to be prosecuted under New Zealand law for an offence of a kind for which a sentence of imprisonment can be imposed. 
(2) A person who has a privilege against self-incrimination in respect of specific information cannot be prosecuted or penalised for refusing or failing to provide that information whether or not the person claimed the privilege when the person refused or failed to provide the information. 
Section 61 continues overleaf 

evidence code and commentary 
Section 61Privilege against self-incrimination 
C252 Section 61(1) indicates the situations in which the privilege may apply, in the absence of legislation to the contrary. These reflect the common law in that the privilege is against compelled, rather than voluntary, self-incrimination. Compulsion is present in the following situations: 
• a person is required by law to make self-incriminating disclosures (eg, under a subpoena, judicial order, or an official's exercise of statutory powers); or 
• a person is under pressure to make self-incriminating disclosures in response to questioning by the police or other officials exercising criminal investigatory powers. 
C253 A person may only claim the privilege for information that, if disclosed, would expose him or her to the risk of prosecution for an offence punishable by imprisonment. This is a significant change to the common law privilege. "Incriminate" and "self-incrimination" are defined in s 4 to exclude the privilege being claimed when the only potential detriment arising from disclosure is a civil penalty or a fine. 
C254 Section 61 covers information-gathering at the investigative stage as well as testimony in proceedings. This broader approach is consistent with the importance of the privilege as a fundamental right affirmed in ss 23(4), 25(d) and 27(1) of the New Zealand Bill of Rights Act 1990. It also avoids the artificiality of treating separately what are stages in a continuous process and recognises the reality that the way investigations are carried out often emerges as an admissibility issue at the hearing. 
C255 The references to "specific information" in s 61(1) and (2) preclude blanket claims of privilege. The privilege can only be claimed for particularised items of information. 
C256 Section 61(2) reflects the common law in precluding prosecutions for refusing to supply required information arising from a person's claim of privilege, even though no claim of privilege was made at the time the person refused to supply the information. 
Section 61 commentary continues overleaf 
evidence code and commentary

s 61 EVIDENCE
(3) Subsections (1) and (2) apply 
(a) unless an enactment explicitly removes the privilege against self-incrimination; and 
(b) to the extent that an enactment does not explicitly remove the privilege against self-incrimination. 
(4) Subsections (1) and (2) do not enable a claim of privilege to be made 
(a) on behalf of a body corporate; or 
(b) on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or 
(c) by a defendant in a criminal proceeding in relation to information about a matter for which the defendant is being tried. 
Definitions: incriminate, information, proceeding, self-incrimination, s 4; legal adviser, s 53(1). 

evidence code and commentary 
Section 61 commentary continued
C257 Section 61(3) reflects the principle that a fundamental right should only be removed or limited by explicit legislation. 
C258 Section 61(4)(a) does not preclude corporate employees or officers claiming the privilege on their own behalf when they are personally liable to self-incrimination. 
C259 The effect of s 61(4)(b) is that a person cannot, by relying on the privilege against self-incrimination, refuse to meet a requirement for information on the ground that someone else may be incriminated _ for example, a spouse. The privilege cannot be invoked by one person on behalf of another, the only exception being a legal adviser who can claim the privilege on behalf a client who is required to provide the information. 
C260 Section 61(4)(c) does not prevent a criminal suspect from claiming the privilege at an investigative stage, or about information that may incriminate him or her in relation to some other offence than the offence for which he or she is being tried. 
evidence code and commentary

s 62 EVIDENCE
62 Discretion as to incrimination under foreign law 
(1) Subsection (2) applies to a person who is required to provide specific information 
(a) in the course of a proceeding; or 
(b) by a person exercising a statutory power or duty; or 
(c) by a police officer or other person holding a public office in the course of an investigation into a criminal offence or a possible criminal offence. 
(2) A judge may direct that such a person need not and cannot be required to provide that information if 
(a) to do so would be likely to incriminate that person in such a manner that the person would be liable to be prosecuted under a foreign law for an offence of a kind for which a sentence of imprisonment, capital punishment, or corporal punishment can be imposed; and 
(b) the judge is of the opinion, having regard to the likelihood of extradition and other relevant matters, that it would be unreasonable to require the person to incriminate himself or herself by providing that information. 
(3) Subsection (1) does not enable the judge to issue a direction to 
(a) a body corporate; or 
(b) any person other than the person required to provide the information (except a legal adviser on behalf of a client who is required to provide information); or 
(c) a defendant in a criminal proceeding in relation to information about a matter for which the defendant is being tried. 
Definitions: incriminate, information, judge, proceeding, s 4; legal adviser, s 53(1). 

evidence code and commentary 
Section 62Discretion as to incrimination under foreign law 
C261 Section 62 essentially enacts the suggestion of Lord Nicholls in Brannigan v Sir Ronald Davison [1997] 1 NZLR 140, 147 (PC) that judges ought to have a discretion to provide protection where it would be harsh to force a person to incriminate himself or herself under foreign law. The discretionary protection is similar in scope to the privilege under s 61. Section 62 recognises the reality that incrimination under foreign law could expose a person to the risk of corporal or capital punishment. 
evidence code and commentary

s 63 EVIDENCE
63 Privilege against self-incrimination in court proceedings 
(1) This section does not 
(a) limit the application of section 61; or 
(b) apply in respect of the evidence of a defendant in a criminal proceeding in relation to information about a matter for which the defendant is being tried. 
(2) If in a court proceeding it appears to the judge that a party or witness may have grounds to claim a privilege against self-incrimination in respect of specific information required to be provided by that person, the judge must satisfy himself or herself that the person is aware of the privilege and its effect. 
Section 63 continues overleaf 

evidence code and commentary 
Section 63Privilege against self-incrimination in court proceedings 
C262 This section provides a certification procedure in court proceedings, whereby a person who voluntarily gives self-incriminating evidence is given a certificate in return which effectively guarantees that the information, and any evidence obtained as a result of the person giving that information, cannot be used against him or her in any other proceeding in New Zealand. 
C263 Section 63(1)(b) is consistent with s 61(4)(c). The effect of these provisions is that defendants in criminal proceedings who choose to testify cannot claim the privilege under s 61, nor be given a certificate under s 63. 
C264 Section 63(2) is modelled on s 132 of the Evidence Act 1995 (Aust), but unlike that provision, which extends to all privileges, the obligation on the judge under subs (2) arises only in relation to a privilege against self-incrimination. 
Section 63 commentary continues overleaf 
evidence code and commentary

s 63 EVIDENCE
(3) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the judge to assess whether self-incrimination is reasonably likely if the person provides the required information. 
(4) If the judge is satisfied that self-incrimination is reasonably likely if the person provides the required information, the judge must inform the person 
(a) that the person need not provide the information; and 
(b) that, if the witness does provide the information, the judge will cause a certificate to be given under this section; and 
(c) of the effect of a certificate under this section. 
(5) If a person does provide information after being informed in accordance with subsection (4), the judge must cause to be given to the person a certificate in the prescribed form. 
(6) Information given by a person for which a certificate has been given under this section and evidence of any information, document, or thing obtained directly or indirectly as a result of the person having given that information cannot be used against the person in any other proceeding in New Zealand except in a criminal proceeding concerning the falsity of the information given. 
Definitions: document, information, judge, party, proceeding, self-incrimination, witness, s 4. 

evidence code and commentary 
Section 63 commentary continued
C265 To comply with s 63(4), the judge must ensure that the person is given all the relevant information to make a decision, with or without the assistance of counsel. The following is offered by way of guideline: 
You have what is called a privilege against self-incrimination for the specific information that you have been required to provide. The effect of that privilege is that you cannot be forced to provide the information in this Court. You cannot be prosecuted if you refuse to provide it. 
If you do provide the information, the Court will give you a certificate that is issued under s 63 of the Evidence Code. The effect of the certificate is that the information you provide cannot be used against you in any other civil or criminal proceeding in the High Court or a District Court in New Zealand. It could be used though if you were to be prosecuted because the information is false. 
In deciding whether to provide the information in return for a certificate of the kind I have described, you should take into account that its effect is limited to other proceedings in the High Court or a District Court in New Zealand. It does not extend to the use of the information by officials exercising statutory investigative powers or to tribunals. 
If you do provide the information, people who become aware of it could possibly use it for making further inquiries and investigations. People could also perhaps use the information against you in some way not involving the High Court or a District Court. You should consider those possibilities. 
If you do not understand what I have said, you should say so now and I will explain further. 
C266 If the person chooses to "waive" the privilege and accept the certificate, the judge is required to issue the certificate. It is not a matter of discretion. 
C267 The immunity of a certificate does not extend beyond court proceedings (for example, they do not apply in tribunal hearings) in New Zealand. However, by virtue of article 19(3) of the First Schedule of the Arbitration Act 1996, witnesses appearing before an arbitral tribunal have the same privileges and immunities as witnesses in proceedings before a court. A person who knowingly gives false information cannot rely on any certificate issued under this section. 
evidence code and commentary

s 64 EVIDENCE
64 Replacement of privilege with respect to Anton Piller orders 
(1) This section applies if a party to a civil proceeding objects to giving particular information in compliance with an Anton Piller order on the grounds that the information may tend to incriminate that person in such a manner that the person is liable to be prosecuted under New Zealand law for an offence of a kind for which a sentence of imprisonment can be imposed. 
(2) A party who is required to provide particular information in a civil proceeding in compliance with an Anton Piller order does not have the privilege provided for by section 61 and must comply with the terms of the order, but if the judge is satisfied that self-incrimination is reasonably likely if the party provides the particular information, the judge is to cause to be given to the party a certificate under this section in the prescribed form. 
(3) A party who objects to giving particular information in the circumstances and on the grounds set out in subsection (1) must offer sufficient evidence to enable the judge to assess whether self-incrimination is reasonably likely if the person provides the required information. 
(4) Information given by a person for which a certificate has been given under this section, and evidence of any information, document, or thing obtained directly or indirectly as a result of the person having given that information, cannot be used against the person in any criminal proceeding in New Zealand, except in a criminal proceeding concerning the falsity of the information. 
Definitions: document, incriminate, information, judge, party, proceeding, self-incrimination, s 4. 

evidence code and commentary 
Section 64Replacement of privilege with respect to Anton Piller orders 
C268 Section 64 codifies the common law prohibiting a party from claiming the privilege against self-incrimination in order to resist an Anton Piller order. 
C269 An Anton Piller order, named after the English Court of Appeal decision in Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55 (CA), is made by a judge in a civil proceeding and directs the defendant to permit the plaintiff to enter its premises in order to establish the presence of certain items and, if warranted, to remove them for safekeeping. It is used when the plaintiff fears the defendant will, if alerted, conceal, remove or destroy incriminating evidence. The order developed as a way of countering piracy in intellectual property by enabling copyright owners to catch infringers and to prevent them from continuing to act in breach of the copyright. In New Zealand the jurisdiction to grant an Anton Piller order rests on High Court Rules 9, 322 and 331, as well as the court's inherent jurisdiction and equitable jurisdiction to order interrogatories. See further McGechan on Procedure (Brooker's, Wellington, 1988) App 7. 
evidence code and commentary

s 65 EVIDENCE
65 Informers 
(1) An informer has a privilege in respect of information that would disclose or is likely to disclose the informer's identity. 
(2) A person is an informer for the purposes of this section if the person 
(a) has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and 
(b) is not called as a witness by the prosecution to give evidence relating to that information. 
(3) An informer may be a member of the Police working undercover. 
Definitions: enforcement agency, witness, s 4. 

evidence code and commentary 
Section 65Informers 
C270 This section codifies the existing law (previously categorised as an aspect of the law protecting state secrets) on protecting those who supply information to assist in law enforcement, on the basis that their identity will be kept secret. As well as police informers, it would include those who tip off the Inland Revenue Department or the Customs Department, for example. The protection extends to undercover police officers who are, however, more comprehensively protected by s 13A of the Evidence Act 1908, which will be re-enacted unamended as part of the Code (see the Comparative Table in Appendix B of the Report). 
evidence code and commentary

s 66 EVIDENCE
66 Protection of journalists' sources 
(1) A journalist who has promised an informant not to disclose that informant's identity and the employer of such a journalist are not, unless an order is made under subsection (2), compellable in a civil or criminal proceeding to answer any question or produce any document that the journalist or employer would, but for this section, be compellable to answer or produce if that answer or production would disclose the identity of the informant or make possible the discovery of that identity. 
(2) The High Court may order that subsection (1) is not to apply if a Judge of the High Court is satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs 
(a) any likely adverse effect of such disclosure on the informant or any other person; and 
(b) the public interest in the communication of facts and opinion by the news media to the public and the corresponding need of the news media for access to the sources of facts. 
(3) The High Court may attach such terms and conditions as it thinks appropriate to an order under subsection (2), including 
(a) an order limiting the publication of the informant's identity or of information making possible the discovery of that identity; 
(b) a condition that the applicant or any other person cannot bring an action for defamation against the informant or any other person or exercise any powers as an employer adversely to the informant or any other person. 
(4) This section does not affect the power or authority of the House of Representatives. 
Section 66 continues overleaf 

evidence code and commentary 
Section 66Protection of journalists' sources 
C271 In recognition of the public interest in press freedom, this section protects the identity of a journalist's informant from disclosure if the journalist has promised the informant that his or her identity will not be disclosed. The High Court may override such a privilege if satisfied that the public interest in disclosure outweighs the need for secrecy. Any order under this section may be made on terms that include restrictions on publication and a disentitlement to seek redress by way of a defamation action. The definition of news medium in s 66(5) is adapted from the definition of "news medium" in the Defamation Act 1992. 
C272 There is Australian precedent for Parliamentary assertion of a select committee's entitlement to ascertain a journalist's sources _ the case of the journalists Fitzpatrick and Browne (the right of the courts to go behind the warrant in that case is reported as R v Richards ex parte Fitzpatrick and Browne (1955) 192 CLR 157). The purpose of s 66(4) is simply to make it clear that s 66 does not affect whatever entitlement the House of Representatives may have in this regard. 
evidence code and commentary

s 66 EVIDENCE
(5) In this section 
informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that such information may be published in a news medium. 
journalist means a person who in the normal course of that person's work may be given information by an informant in the expectation that such information may be published in a news medium. 
news medium means a medium for the dissemination to the public or a section of the public of news and observations on news. 
Definitions: document, party, proceeding, s 4. 
67 Overriding discretion as to confidential information 
(1) A judge may, in the circumstances described in subsection (2), direct that a confidential communication, or confidential information, or information which would or might reveal a confidential source of information, must not be disclosed in a proceeding. 
(2) A judge may give a direction under this section if the judge considers that the public interest in the communication or information being disclosed in the proceeding is outweighed by the public interest in 
(a) preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or 
(b) preventing harm to 
(i) the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or 
(ii) relationships which are of a similar kind to the relationship referred to in subparagraph (i); or 
(c) maintaining activities which contribute to or rely on the free flow of information. 
Section 67 continues overleaf 

evidence code and commentary 
Section 67Overriding discretion as to confidential information 
C273 This section is concerned with protecting confidences not protected by the more specific provisions of the Code. The Code does not repeat the specific protection of medical confidences in civil proceedings to be found in s 32 of the Evidence Amendment Act (No 2) 1980, the intention being that there should be reliance on s 67. Judges have always exercised the right to exclude evidence on the basis that it would be a breach of confidence to give that evidence. The forerunner of the present section is s 35 of the Evidence Amendment Act (No 2) 1980; but whereas the emphasis in that provision is on the "special relationship" existing between the witness and the person who confided in the witness, the present section is not confined to such a relationship. 
C274 Section 67(2) provides that a judge may direct non-disclosure if the normal public interest in putting all relevant facts before a fact-finder is outweighed by the public interest in preserving the confidence, measured in terms of the harm brought about by disclosing the confidences. 
Section 67 commentary continues overleaf 
evidence code and commentary

s 67 EVIDENCE
(3) When considering whether to give a direction under this section, the judge must have regard to 
(a) the likely extent of harm which may result from the disclosure of the communication or information; and 
(b) the nature of the communication or information and its likely importance in the proceeding; and 
(c) the nature of the proceeding; and 
(d) whether other means of obtaining evidence of the communication or information are or may be available; and 
(e) whether means of preventing or restricting public disclosure of the evidence are available if the evidence is given; and 
(f) the sensitivity of the evidence having regard to the time which has elapsed since the communication was made or the information was compiled or prepared and the extent to which the information has already been disclosed to other persons; and 
(g) society's interest in protecting the privacy of victims of sexual offences; 
and the judge may have regard to any other matters which the judge considers relevant. 
(4) A judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged under another section of this Part or would be so privileged except for a limitation or restriction imposed by this Part. 
Definitions: judge, proceeding, s 4. 

evidence code and commentary 
Section 67 commentary continued
C275 Section 67(3) provides a list of factors relevant when determining whether to order non-disclosure. 
C276 Section 67(4) is a fall-back provision enabling a judge to order non-disclosure of information whether or not it is specifically protected by the other provisions in this Part, or of information that is excluded from any specific protection because the provision expressly limits it. 
C277 The power of a judge to disallow privilege under s 71 does not apply to matters covered by ss 67 and 68. Protection under these sections arises on the exercise of a discretion, and not as the result of a privilege. Logically, s 67 or s 68 and s 71 are mutually exclusive: a judge cannot exercise a discretion to order non-disclosure under s 67 or s 68, and in relation to the same matter, also exercise the power to order disclosure. 
evidence code and commentary

s 68 EVIDENCE
68 Discretion as to matters of state 
(1) A judge may direct that a communication or information relating to matters of state must not be disclosed in a proceeding if the judge considers that the public interest in the communication or information being disclosed in the proceeding is outweighed by the public interest in withholding the communication or information. 
(2) A communication or information relating to matters of state includes a communication or information 
(a) in respect of which the reason advanced in support of an application for a direction under this section is one of those set out in sections 6 and 7 of the Official Information Act 1982; or 
(b) which is official information as defined in section 2 of the Official Information Act 1982 and in respect of which the reason advanced in support of the application for a direction under this section is one of those set out in paragraphs (b) to (k) of section 9(2) of that Act. 
(3) A judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged under another section of this Part or would be so privileged except for a limitation or restriction imposed by this Part. 
Definitions: judge, proceeding, s 4. 

evidence code and commentary 
Section 68Discretion as to matters of state 
C278 Section 68 allows the Government, and those affected by government actions, to have communications withheld in the wider public interest. The section puts the present doctrine of public interest immunity into statutory form. It is the counterpart to s 67. Whereas s 67 applies to private confidential information, s 68 applies to information whose confidentiality is important to the state or to the effective conduct of public affairs. The basic principle set out in s 68(1) is the same. When in any particular case it appears to the judge that the public interest in preserving the confidentiality of information relating to the state or public affairs is more important than the public interest in disclosing it, the judge may direct that the information not be disclosed. 
C279 Under s 68(2), the term "matters of state" is defined to include any information in cases where the reason advanced for protecting it corresponds with one of the reasons for protection recognised in the Official Information Act 1982. 
C280 Although it will usually be the Government that applies for a direction under this section, the judge may act of his or her own initiative or on the application of an interested person if there appears to be a wider public interest involved. This could occur, for example, in a situation where the information is not in the Government's possession. It could also occur where a person affected by the disclosure believes there is a public interest in maintaining secrecy, but the Government has declined to oppose the application for disclosure. 
C281 Unlike s 67, this section does not include lists of relevant types of interest or relevant factors. Ample general guidance on the circumstances in which official information should and should not be made available, will be found in the Official Information Act 1982. 
C282 The power of a judge under s 71 to disallow privilege does not apply to matters covered by this section. 
evidence code and commentary

s 69 EVIDENCE
69 Waiver 
(1) A person who has a privilege conferred by this Part may waive that privilege either expressly or impliedly. 
(2) A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality. 
(3) A person who has a privilege waives the privilege if that person 
(a) acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding; or 
(b) institutes a civil proceeding against a person who is in possession of the privileged communication, information, opinion, or document the effect of which is to put the privileged matter in issue in the proceeding. 
(4) A person who has a privilege in respect of a communication, information, opinion, or document which has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege. 
(5) A privilege conferred by section 58 (which relates to settlement negotiations) may be waived only by all the persons who have that privilege. 
Definitions: document, proceeding, s 4. 

evidence code and commentary 
Section 69Waiver 
C283 Waiver of a privilege occurs if privilege holders do something that shows they no longer wish to rely on the confidentiality of information. 
C284 Section 69(2) states the general rule that applies if the privilege holder voluntarily discloses or publishes the privileged information. In general, if that happens, privilege will be lost. But where there has been a limited disclosure, the judge will have to determine whether the disclosure is inconsistent with the intention to preserve confidentiality. As an example, if X obtains a prescription for a prohibited drug from a doctor and then sells the prescription to someone else, at X's trial the Crown should not be precluded by s 60(4) from calling the doctor to give evidence of the prescription. X's sale of the prescription would amount to a voluntary disclosure of the privileged information inconsistent with a claim of confidentiality. 
C285 Section 69(3) As an example, people who sue their lawyer for malpractice cannot rely on legal professional privilege to prevent disclosure of communications between them that are relevant to defending the claim. 
C286 Section 69(4) deals with the case where a privilege holder has involuntarily disclosed or parted with privileged information. Where there is no intention to disclose, privilege is not waived. The person in possession of the information may be ordered not to disclose it in court proceedings _ see s 54(4) (effect and protection of privilege). 
evidence code and commentary

s 70 EVIDENCE
70 Joint and successive interests in privileged material 
(1) A person who jointly with some other person or persons has a privilege conferred by this Part in respect of a communication, information, opinion, or document 
(a) is entitled to assert the privilege against third parties; and 
(b) is not restricted by this Part from having access or seeking access to the privileged matter; and 
(c) may, on the application of another holder of the privilege who wishes the privilege to be maintained, be ordered by a judge not to disclose the privileged matter in a proceeding. 
(2) A personal representative of a deceased person who has a privilege conferred by this Part in respect of a communication, information, opinion or document and any other successor in title to property of a person who has such a privilege 
(a) is entitled to assert the privilege against third parties; and 
(b) is not restricted by this Part from having access or seeking access to the privileged matter 
to the extent that a judge is satisfied that the personal representative or other successor in title to property has a justifiable interest in the communication, information, opinion, or document. 
(3) A personal representative of a deceased person who has a privilege conferred by this Part in respect of a communication, information, opinion or document and any other successor in title to property of a person who has such a privilege, may, on the application of another holder of the privilege who wishes the privilege to be maintained, be ordered by a judge not to disclose the privileged matter in a proceeding. 
Definitions: document, judge, proceeding, s 4. 

evidence code and commentary 
Section 70Joint and successive interests in privileged material 
C287 Section 70(1) sets out the rights of joint privilege holders _ for example, if two clients who are interested in a legal matter employ the same solicitor to deal with it on their behalf. A joint privilege holder may have access to all privileged material (para (b)), and may assert the privilege against third parties (para (a)). This is so even though the material has been provided by the other privilege holder. Further, the other privilege holder may if necessary be ordered not to disclose the material in court proceedings (para (c)). 
C288 Section 70(2) and 70(3) apply the same principles to cases where there are successive privilege holders; for example, 
• a privilege holder who has died, and the privilege holder's personal representative; 
• a privilege holder who formerly owned property, and the privilege holder's successor in title (the communications or information relating to some matter of title). 
However, the two privilege holders may not have precisely the same interests. For example, the Official Assignee, as successor in title to a bankrupt's property, has a right of access to the bankrupt's legal file about an earlier dispute over that property. But the Official Assignee ought not to have access to files relating to the defence of the bankruptcy proceeding itself. The final words of s 70(2) are designed to allow the judge to make appropriate decisions in such matters. 
evidence code and commentary

s 71 EVIDENCE
71 Powers of judge to disallow privilege 
(1) A judge must disallow a claim of privilege conferred by this Part in respect of a communication or information if the judge is satisfied there is a strong prima facie case that the communication was made or received or the information was compiled or prepared for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence. 
(2) A judge may disallow a claim of privilege conferred by this Part in respect of a communication or information if the judge is of the opinion that evidence of the communication or information is necessary to enable the defendant in a criminal proceeding to present an effective defence. 
(3) Any communication or information disclosed as the result of the disallowance of a claim of privilege under subsection (2) and any information derived from that disclosure cannot be used against the holder of the privilege in a proceeding in New Zealand. 
(4) This section does not apply to section 61 (Privilege against selfincrimination). 
Definition: judge, proceeding, s 4. 

evidence code and commentary 
Section 71Powers of judge to disallow privilege 
C289 The power to disallow under s 71 applies to all types of privilege. Once the preconditions are satisfied, s 71(1) imposes on the judge a requirement to disallow a claim of privilege. One of the preconditions is that the holder of the privilege must have actual or constructive knowledge that communication was made for a dishonest purpose or to further an offence. 
C290 Section 71(2) gives the judge a discretion to disallow a claim of privilege if the information is necessary to present an effective defence in a criminal proceeding. Section 71(2) departs from the decision of the House of Lords in Reg v Derby Magistrates' Court [1996] AC 487 and that of the Australian High Court in Carter v Northmore Hale Daly and Leake (1995) 183 CLR 121. In return, however, it absolutely prohibits using the disclosed information against any person in any later proceeding. 
C291 The power to disallow a claim of privilege does not apply to s 61, 62, 66, 67 or 68. This is because in the case of ss 62, 67 and 68 the power to allow or disallow is already discretionary, and s 66(2) already provides a special procedure so that in the situations covered by all four of these sections the additional power in s 71 is not needed. In the case of s 61, the intention is that the privilege against self-incrimination should be absolute. 
evidence code and commentary

s 72 EVIDENCE
72 Orders for protection of privileged material 
(1) A judge may order that evidence must not be given in a proceeding of a communication, information, opinion, or document in respect of which a person has a privilege conferred by this Part and may make an order under this subsection 
(a) on the judge's own initiative; or 
(b) on the application of the person who has the privilege; or 
(c) on the application of an interested person other than the person who has the privilege. 
(2) A judge may give a direction under section 67 (confidential information) or section 68 (matters of state) on the judge's own initiative or on the application of an interested person. 
(3) An application under subsections (1) or (2) may be made at any time either before or after any relevant proceeding is commenced. 
(4) A judge may give such directions as are necessary to protect the confidentiality of, or limit the use which may be made of, 
(a) any privileged communication, information, opinion or document which is disclosed to a judge or other body or person in compliance with a judicial or administrative order; 
(b) any communication or information which is the subject of a direction under section 67 (confidential information) or section 68 (matters of state) but is disclosed to a judge or other body or person in compliance with a judicial or administrative order. 
Definitions: document, judge, proceeding, s 4. 

evidence code and commentary 
Section 72Orders for protection of privileged material 
C292 Section 72 is a procedural section designed to provide machinery for invoking privilege. Section 72(4) provides that if privilege is overridden, the judge may give ancillary directions to prevent the relevant material being disseminated beyond the extent necessary for the purposes of the trial. 
evidence code and commentary

s 73 EVIDENCE
Part 5
The trial process 
Subpart 1 _ Eligibility and compellability 
73 Eligibility and compellability generally 
Except as provided otherwise by this Code or any other Act, 
(a) any person is eligible to give evidence; and 
(b) a person who is eligible to give evidence is compellable to give that evidence. 
Definition: Act, s 4. 
74 Eligibility of judges, jurors and counsel 
(1) Notwithstanding section 73, 
(a) a person who is acting as a judge in a proceeding is not eligible to give evidence in that proceeding; and 
(b) except with the permission of the judge, a person who is acting as a juror or counsel in a proceeding is not eligible to give evidence in that proceeding. 
(2) In this section counsel includes an employment advocate. 
Definitions: judge, proceeding, s 4. 

evidence code and commentary 
Part 5
The trial process 
Subpart 1 _ Eligibility and compellability 
Section 73Eligibility and compellability generally 
C293 This section states the broad principle that everyone is eligible to give evidence, and anyone who is eligible is compellable. Exceptions are set out in ss 74 to 77. The biggest change is that the exceptions do not extend to spouses. 
C294 Section 73 abolishes the common law rule that a person must be competent before he or she can give evidence as a witness. No person, whether on the grounds of age, intellectual disability, or mental disorder, or on any other ground, may be disbarred from giving evidence on the ground of incompetence. This section also abolishes the duty to test the competence of children under 12, and any existing formulations of the competence test are no longer to be considered good law. In the case of witnesses whose testimony is unhelpful _ because of incoherence, for example _ the judge may still exclude that evidence under the general exclusionary provisions in s 8. 
Section 74Eligibility of judges, jurors and counsel 
C295 A judge, juror or counsel cannot give evidence in the proceeding in which they are acting as judge, juror or counsel, as the case may be. They will have to stop acting in those capacities if they wish to give evidence. Counsel is defined to include employment representatives (such as professional and lay advocates) who appear in the Employment Tribunal or Employment Court. 
evidence code and commentary

s 75 EVIDENCE
75 Compellability of defendants in criminal proceedings 
(1) Except as provided otherwise by this Code or any other Act, a defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding. 
(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless 
(a) the associated defendant is being tried separately from the defendant; or 
(b) the proceeding against the associated defendant has been determined. 
(3) A proceeding has been determined for the purposes of subsection (2) if 
(a) the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or 
(b) the associated defendant has been acquitted of the offence; or 
(c) the associated defendant, having pleaded guilty to or been found guilty of the offence, has been sentenced for that offence. 
(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for 
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; or 
(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted. 
Definitions: Act, proceeding, witness, s 4. 

evidence code and commentary 
Section 75Compellability of defendants in criminal proceedings 
C296 Section 75(1) codifies the existing law in making a defendant in a criminal proceeding non-compellable for the prosecution or the defence. 
C297 Under s 75(2), an associated defendant is not compellable for or against a defendant unless the two are being tried separately, or the proceeding against the associated defendant has been determined within the meaning of subs (3). The definition of associated defendant is taken from the Evidence Act 1995 (Aust) with a slight change in wording. Paragraph (a) of the definition makes a person an "associated defendant" if he or she is charged with an offence that is the same as the one facing the defendant (whether jointly or separately charged), or with a different offence from that facing the defendant but arising in connection with the same events. Paragraph (b) covers related offences, an example being where a defendant is charged with the burglary of a building and the associated defendant is charged with receiving the goods stolen in that burglary. 
evidence code and commentary

s 76 EVIDENCE
76 Compellability of Sovereign and certain other persons 
None of the following persons is compellable to give evidence: 
(a) the Sovereign; 
(b) the Governor-General; 
(c) a foreign Sovereign or Head of State of a foreign country; 
(d) a judge, in respect of the judge's conduct as a judge. 
Definition: foreign country, judge, s 4. 
77 Evidence of jury deliberations 
A person cannot give evidence about the deliberations of a jury concerning the substance of a proceeding except in so far as that evidence tends to establish that a juror has acted in breach of the juror's duty. 
Definitions: judge, proceeding, s 4. 

evidence code and commentary 
Section 76Compellability of Sovereign and certain other persons 
C298 This section codifies the current law in making the persons listed non-compellable in any proceeding. Paragraph (d) is of limited application. In matters unrelated to the judge's conduct as a judge, he or she is compellable like any other citizen. 
Section 77Evidence of jury deliberations 
C299 The intention of this section is to maintain the secrecy of jury deliberations, but at the same time allowing evidence to be given if a juror breaches his or her duty as a juror. Evidence about the substance of a jury's deliberation will be allowed if such evidence cannot be avoided in giving evidence about jury misbehaviour. This section does away with the distinction made in the common law that depends on whether the impropriety occurred within or outside the jury room. 
evidence code and commentary

s 78 EVIDENCE
Subpart 2 _ Oaths and affirmations 
78 Witnesses to give evidence on oath or affirmation 
(1) A witness in a proceeding must take an oath or make an affirmation before giving evidence. 
(2) Notwithstanding subsection (1), a witness who is under the age of 12 must not take an oath, make an affirmation or make a promise to tell the truth before giving evidence, but before giving evidence the witness must be informed by the judge of the importance of telling the truth and not telling lies; and evidence given by such a witness may be taken as if that evidence had been given on oath. 
(3) Notwithstanding subsection (1), a witness may give evidence without taking an oath or making an affirmation with the permission of the judge, and that evidence may be taken as if that evidence had been given on oath, but before giving evidence the witness must be informed by the judge of the importance of telling the truth and not telling lies. 
(4) A person who is called only to produce a document or thing to a court need not take an oath or make an affirmation before doing so. 
Definitions: document, judge, proceeding, witness, s 4. 

evidence code and commentary 
Subpart 2 _ Oaths and affirmations 
Section 78 Witnesses to give evidence on oath or affirmation 
C300 This Subpart largely reflects the current law, found in the common law and in the Oaths and Declarations Act 1957, with some changes. 
C301 Section 78(1) retains the current requirement that witnesses take an oath or make an affirmation before giving evidence. 
C302 Section 13 of the Oaths and Declarations Act 1957 permits witnesses under the age of 12 to make a promise or declaration to tell the truth, rather than swear an oath or make an affirmation. Section 78(2) replaces s 13 and stipulates that a witness under 12 must not swear an oath, make an affirmation, or promise to tell the truth. Instead the judge must tell the witness that it is important to tell the truth or not to tell lies. Younger children will often understand the concept of not telling lies better than the concept of telling the truth. Such unsworn evidence is to be treated as if it had been given on oath. 
C303 Section 78(3) is the discretionary equivalent of subs (2) that applies to adult witnesses. It is intended to be used exceptionally _ for example, with intellectually disabled adult witnesses who do not understand the significance of taking an oath or making an affirmation. The judge should advise the jury that, even though the evidence was not given on oath, the witness is still capable of telling the truth. 
C304 Section 78(4) generalises the practice in some courts of allowing a person who is called only to produce a document or an object to do so without taking an oath or making an affirmation. However, if the person is going to be cross-examined, then he or she is doing more than just producing a document or object and must take an oath or make an affirmation. 
evidence code and commentary

s 79 EVIDENCE
79 Interpreters to act on oath or affirmation 
A person must either take an oath or make an affirmation before acting as an interpreter in a proceeding. 
Definitions: interpreter, proceeding, s 4. 

evidence code and commentary 
Section 79Interpreters to act on oath or affirmation 
C305 A court interpreter must currently take an oath or make an affirmation before acting in that capacity, although there is no present statutory provision to that effect. This section codifies that practice and envisages that the form of the oath or affirmation will be prescribed in regulations. 
evidence code and commentary

s 80 EVIDENCE
Subpart 3 _ Support, communication assistance and views 
80 Support persons 
(1) A complainant in a criminal proceeding is entitled, while giving evidence, to have one person, and may apply to the judge for permission to have more than one person, near him or her to give support, but the judge may, in the interests of justice, direct that support may not be provided to a complainant by any person or by a particular person. 
(2) Any other witness may apply to the judge to have one or more support persons near him or her while giving evidence. 
(3) A complainant or other witness who is to have a support person near him or her while giving evidence must, unless the judge orders otherwise, disclose to all parties as soon as practicable the name of each person who is to provide such support. 
(4) The judge may give directions regulating the conduct of a person providing or receiving support under this section. 
Definitions: judge, party, proceeding, witness, s 4. 

evidence code and commentary 
Subpart 3
Support, communication assistance and views 
Section 80Support persons 
C306 This section gives statutory recognition to the current practice of allowing complainants in sexual cases to have a support person near them when they are giving evidence, and extends the entitlement to all complainants in criminal cases. It also enables other witnesses to apply to have a support person. The function of a support person is solely to help reduce stress or trauma for the witness and does not include giving advice or prompting. A support person cannot take the role of a McKenzie friend _ that is, provide advice or assistance in court to an unrepresented litigant, as such assistance goes beyond mere support. A support person should not speak with the witness unless the judge gives permission. 
C307 Section 80(1) gives complainants in criminal cases a statutory entitlement to have a support person near them while giving evidence, whether or not they are giving evidence in the ordinary way. Complainants may also apply to the judge to have more than one support person. The entitlement is not absolute, and may be withdrawn by the judge in the interests of justice. The judge may also rule that a complainant may not have a particular support person, or any support person. It is expected that a judge will give reasons for such a ruling. 
C308 Section 80(2) allows other witnesses, including defendants in criminal cases who elect to give evidence, to apply to have one or more support persons near them while giving evidence. It is envisaged that when making a decision whether to allow witnesses other than complainants to have support persons, the judge would consider some of the factors relevant to alternative ways of giving evidence set out in s 103(3). 
C309 Section 80(3) is intended to allow the judge to give directions on such matters as the physical proximity of the support person to the witness. It may, for example, be appropriate for a young child giving evidence by close-circuit television to have a parent in the same room, provided that there is no prompting. 
evidence code and commentary

s 81 EVIDENCE
81 Communication assistance 
(1) A defendant in a criminal proceeding is entitled to communication assistance in accordance with this section and the regulations to enable that defendant to understand the proceeding and to give evidence if the defendant elects to do so. 
(2) Communication assistance may be provided to a defendant in a criminal proceeding on the application of the defendant in the proceeding or on the initiative of the judge. 
(3) A witness in a civil or criminal proceeding is entitled to communication assistance in accordance with this section and the regulations to enable that witness to give evidence. 
(4) Communication assistance may be provided to a witness on the application of the witness or any party to the proceeding or on the initiative of the judge. 
(5) Communication assistance need not be provided to a defendant in a criminal proceeding if the judge considers that the defendant can sufficiently understand the proceeding and, if the defendant elects to give evidence, can sufficiently understand questions put orally and can adequately respond to them. 
(6) Communication assistance need not be provided to a witness in a civil or a criminal proceeding if the judge considers that the witness can sufficiently understand questions put orally and can adequately respond to them. 
(7) The judge may direct what kind of communication assistance is to be provided to a defendant or a witness. 
(8) Subsections (5), (6) and (7) are subject to section 4 of the Mäori Language Act 1987. 
(9) A person who, while providing communication assistance to a witness, wilfully makes any false or misleading statement to the witness or to the court, commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years. 
Definitions: communication assistance, judge, party, proceeding, statement, witness, s 4. 

evidence code and commentary 
Section 81Communication assistance 
C310 This section codifies and extends the law. It applies to defendants in criminal cases who do not give evidence as well as to those who do. Under the common law and s 24(g) of the New Zealand Bill of Rights Act 1990, a defendant has an absolute right to assistance in having their evidence communicated to the court and also to understand court proceedings. Witnesses who are not defendants may have communication assistance only at the discretion of the judge. 
C311 The section draws a distinction between defendants in criminal cases and other witnesses: both are entitled to communication assistance to enable them to give evidence, but only defendants are entitled to communication assistance to enable them to understand the court proceedings. 
C312 Sections 81(5) and (6) make it clear that communication assistance should be provided only if it is needed. What amounts to "sufficient" understanding of the proceeding and questions will depend on the circumstances of the particular case. These subsections will allow a judge to determine, for instance, that a witness understands English sufficiently not to warrant the high cost of obtaining the services of an interpreter of a relatively obscure language. Subsections (5) and (6) do not diminish the effect of the Mäori Language Act 1987, as s 81(8) makes clear. However, the Mäori Language Act 1987 does not specifically entitle defendants to communication assistance to enable them to understand proceedings, so in this respect s 81 is wider. A Mäori defendant who does not understand English will be entitled to communication assistance under s 81. But where the Mäori Language Act 1987 gives a Mäori speaker an unqualified right to speak Mäori, s 4 of that Act takes precedence. 
C313 "Wilfully" in s 81(9) means intentionally and with knowledge that the statement is false or misleading. 
evidence code and commentary

s 82 EVIDENCE
82 Views 
(1) The judge may hold a view or, if there is a jury, order a view if the judge considers a view is in the interests of justice, and may do so on the application of any party or on the judge's own initiative. 
(2) If there is a jury, a view may be ordered to be held at any time before the jury retires, and the judge may order a further view of the same place or thing during the jury's deliberations. 
(3) If there is not a jury, the judge may hold a view at any time before judgment is delivered. 
(4) Information obtained at a view may be used as though evidence had been given of that information. 
(5) Every party, including the defendant in a criminal proceeding, and lawyers for the parties, are entitled to attend a view, but any party, or that party's lawyer, may waive that entitlement. 
(6) In this section, view means an inspection by the judge and jury (if there is a jury), of a place or thing which is not in the courtroom. 
Definitions: judge, party, proceeding, s 4. 

evidence code and commentary 
Section 82Views 
C314 This section replaces and amends s 28 of the Juries Act 1981. It sets out the circumstances when the judge may order a view and the persons who are entitled to be present at a view. Section 82(6) defines a view for the purposes of this section. 
C315 The Code does not contain separate rules for demonstrations, reconstructions and experiments. These will be permissible when they are relevant and are not excluded by s 8. 
C316 It is not intended that this section will diminish the effect of Rule 322 of the High Court Rules and Rule 340 of the District Courts Rules, which provide for orders for inspection, observation and experimentation in civil proceedings. 
evidence code and commentary

s 83 EVIDENCE
Subpart 4 _ Questioning of witnesses 
83 Ordinary way of giving evidence 
The ordinary way for a witness to give evidence is orally in a courtroom in the presence of 
(a) the judge, or in a jury trial the judge and jury; and 
(b) the parties to the proceeding and their counsel; and 
(c) any member of the public who wishes to be present, unless excluded by order of the judge. 
Definitions: judge, party, proceeding, witness, s 4. 

evidence code and commentary 
Subpart 4
Questioning of witnesses 
Section 83Ordinary way of giving evidence 
C317 The rule on the "ordinary way of giving evidence" contrasts with those set out in Subpart 5 on alternative ways of giving evidence. Evidence given "orally" includes evidence given by a witness who reads a prepared brief, or who has it read to him or her. In providing that a witness gives evidence "orally", it is not intended to preclude or discourage the convenient practice, particularly in civil proceedings, of accepting evidence in written form with the parties' consent. 
C318 An example of where the judge may order the public to be excluded under s 83(c) is when a complainant in a sexual case is giving evidence. 
evidence code and commentary

s 84 EVIDENCE
84 Examination of witnesses 
Unless this Code or any other Act provides otherwise, or the judge directs to the contrary, 
(a) a witness first gives evidence in chief; and 
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and 
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined. 
Definitions: Act, judge, party, witness, s 4. 

evidence code and commentary 
Section 84Examination of witnesses 
C319 This rule codifies the usual order in which a witness gives evidence, subject to the court's inherent powers to regulate its own procedure and any contrary statutory provisions. In multi-party cases, it is expected that the practice will continue of counsel agreeing on the order in which they cross-examine witnesses, and failing agreement, of counsel cross-examining in the order in which the parties appear on the indictment or on the entituling in a civil proceeding. 
evidence code and commentary

s 85 EVIDENCE
85 Unacceptable questions 
(1) The judge may disallow, or direct that a witness is not obliged to answer, any question that the judge considers intimidating, improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand. 
(2) Without limiting the matters that the judge may take into account for the purposes of subsection (1), the judge may have regard to 
(a) the age or maturity of the witness; and 
(b) any physical, intellectual, or psychiatric disability of the witness; and 
(c) the linguistic or cultural background of the witness; and 
(d) the nature of the proceeding; and 
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding. 
Definitions: judge, proceeding, witness, s 4. 

evidence code and commentary 
Section 85 Unacceptable questions 
C320 This rule applies to all questioning of witnesses. It will probably be used most often to control cross-examination. It gives the judge a wide discretion to control the nature of the questions and the manner in which they are put. 
C321 This rule replaces s 14(a) of the Evidence Act 1908, which prohibits scandalous or indecent questions. It is expected that such questions will continue to be disallowed as improper. The operation of the proposed rule is not limited to the effect of the questioning on the particular witness: for example, the rule would control questions that are improper in a general sense. 
C322 The matters set out in s 85(2) are intended to give some guidance on situations where particular care may be necessary. They are expressly stated to be non-exclusive. They are also sufficiently wide to enable the judge to ensure that no party or witness is unfairly disadvantaged by the way he or she is questioned. 
C323 The question-and-answer format is not the way Mäori traditionally resolve disputes or discuss issues. Thus cross-examination of kaumatua can amount to an insult to their mana, especially when questioning is directed at impeaching their credibility or exposing them to ridicule. While no sensible exceptions can be made for Mäori or other cultural groups under the adversarial system, s 85(2)(c) will allow judges to exert some control over cross-examination that may be culturally offensive. One way is to encourage counsel to state a possible position to which the kaumätua is invited to respond, instead of directly questioning a kaumätua. 
evidence code and commentary

s 86 EVIDENCE
86 Restriction of publication 
A person commits a contempt of court who prints or publishes 
(a) without the express permission of the judge, any question that is disallowed by the judge, or any evidence given in response to such a question; or 
(b) any question, or any evidence given in response to a question, that the judge has informed a witness he or she is not obliged to answer and has ordered must not be published. 
Definitions: judge, witness, s 4. 
87 Privacy as to witness's precise address 
(1) Except with permission of the judge, 
(a) no question can be put to any witness and no evidence can be given; and 
(b) no statement or remark can be made in court by a witness, lawyer, officer of the court or any other person involved in the proceeding 
as to the precise particulars of a witness's address (for example, by asking or referring to details of the street and number). 
(2) The judge must not grant permission unless satisfied that the question to be put, the evidence to be given, or the statement or remark to be made, is of such direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice. 
(3) An application for permission may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers. 
Definition: judge, statement, witness, s 4. 

evidence code and commentary 
Section 86Restriction of publication 
C324 This provision replaces s 15 of the Evidence Act 1908. This section is not intended to limit the operation of other statutory provisions that allow a judge to order that evidence not be published. 
Section 87 Privacy as to witness's precise address 
C325 The intention of this section is to protect the safety and privacy of witnesses when they give evidence in open court, by not allowing evidence of or statements and questions about the particulars of a witness's address, except with the judge's permission. Unlike s 23AA of the Evidence Act 1908, which only applies to complainants in sexual cases, this section applies to all witnesses. 
evidence code and commentary

s 88 EVIDENCE
88 Restriction on disclosure of complainants' occupations in sexual cases 
(1) In a sexual case, except with the permission of the judge, 
(a) no question can be put to the complainant or any other witness and no evidence can be given; and 
(b) no statement or remark can be made in court by a witness, lawyer, officer of the court or any other person involved in the proceeding 
as to the complainant's occupation. 
(2) The judge must not grant permission unless satisfied that the evidence to be given or the question to be put is of such direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice. 
(3) An application for permission may be made before or after the commencement of any hearing, and is, where practicable, to be made and dealt with in chambers. 
Definitions: judge, sexual case, proceeding, statement, witness, s 4. 
89 Leading questions in examination in chief and re-examination 
A leading question must not be put to a witness in examination in chief or reexamination unless 
(a) the question relates to introductory or undisputed matters; or 
(b) the question is put with the consent of all other parties; or 
(c) the judge, in exercise of the judge's discretion, allows the question. 
Definitions: judge, leading question, party, proceeding, witness, s 4. 

evidence code and commentary 
Section 88Restriction on disclosure of complainants' occupations in sexual cases 
C326 This section and s 87 replace s 23AA of the Evidence Act 1908 (which prohibits anyone stating in open court the addresses and occupations of complainants in sexual cases). Section 88 only applies in relation to occupation, since the s 87 prohibition in relation to full street addresses applies to any witness, including a complainant. 
Section 89Leading questions in examination in chief and re-examination 
C327 This rule codifies the existing law, which generally does not allow leading questions to be asked in examination in chief or re-examination. 
C328 The exceptions in s 89(a) and (b) allow counsel to lead on uncontroversial matters. 
C329 It is anticipated that the general discretion in s 89(c) will be used sparingly. The problems associated with examining witnesses who are very young, frightened, or intellectually disabled, or who are not fluent in English, are best addressed by allowing them to give evidence in an alternative way (Subpart 5), to have a support person close by for emotional support (s 80), or by providing them with communication assistance (s 81). 
evidence code and commentary

s 90 EVIDENCE
90 Use of written statements in questioning witness 
(1) A party cannot, for the purpose of questioning a witness in a proceeding, use a written statement that is inadmissible, and a witness cannot consult a written statement that is inadmissible while giving evidence. 
(2) If when questioning a witness a party shows a written statement to the witness or a witness consults a written statement while giving evidence, that written statement must be shown to every other party to the proceeding. 
Definitions: judge, party, proceeding, statement, witness, s 4. 
91 Editing of inadmissible statements 
If a statement is determined by the judge to be inadmissible in part in a proceeding, a party who wishes to use an admissible part of the statement may, subject to the direction of the judge, edit the statement by excluding any part of it which is inadmissible if, in the opinion of the judge, the inadmissible parts of the statement can be excluded without obscuring or confusing the meaning of the admissible part of the statement. 
Definitions: judge, party, proceeding, statement, s 4. 

evidence code and commentary 
Section 90Use of written statements in questioning witness 
C330 Section 90(1) This provision prevents the use of inadmissible statements during the examination of a witness. The rule also applies to witnesses who may wish to consult a document while testifying. If the document is inadmissible, they may not consult it. 
C331 Section 90(2) is new. It is intended to discourage the practice of the "silent read" whereby, without disclosing the contents to anyone else in court, counsel hands a witness a written statement and asks the witness to read it silently. Under s 90(2), if counsel shows a written statement to a witness under examination, or the witness consults a written statement while giving evidence, the statement must be shown to every other party. This enables other counsel to raise objection if the statement is inadmissible. For example, if the statement was made by someone who is a witness in the proceeding, it must comply with s 37(a) (previous consistent statements rule). If the statement was made by a person who is not a witness, admissibility under the hearsay rule must first be established. 
C332 Section 96 (cross-examination on previous statements of witnesses) sets out when a prior inconsistent statement must be shown to a witness who is being crossexamined on it. Section 90(2) requires a statement that must be shown to the witness under s 96(2) to be shown to every other party to the proceeding. 
Section 91Editing of inadmissible statements 
C333 This section allows the inadmissible portions of a statement to be removed, so that the remaining parts may be used in examining a witness. However, this is conditional on the judge agreeing that the inadmissible portions can be removed without making what is left confusing or ambiguous. 
evidence code and commentary

s 92 EVIDENCE
92 Cross-examination duties 
(1) A party must cross-examine a witness on substantial matters of the party's case that contradict the evidence of the witness if 
(a) the witness is, or might be, in a position to give admissible evidence on such matters; and 
(b) the witness or the party who called the witness may be unaware that they are a part of the cross-examining party's case. 
(2) If a party fails to comply with this section, the judge may 
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or 
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or 
(c) exclude the contradictory evidence; or 
(d) make any other order which the judge considers just. 
Definitions: judge, party, witness, s 4. 

evidence code and commentary 
Section 92Cross-examination duties 
C334 This rule largely codifies existing law and practice. Section 92(1) clarifies one aspect of the law: that the duty is limited to questioning the witness about those parts of the cross-examiner's case, including points made or to be made in counsel's submissions, which contradict the evidence of the witness. Challenges to the witness's credibility (truthfulness and accuracy) should be put to the witness if the challenging party intends to call evidence on the witness's credibility subsequently. Cross-examining counsel need not put every aspect of his or her case in robotic fashion to the witness, if it is clear from the pleadings or the prior conduct of the proceeding which of the witness's assertions are under challenge. 
C335 Section 92(2) sets out a number of discretionary measures a judge can take in the interests of justice if a party fails to comply, and it is not intended to limit the court's inherent power to control its own proceedings. 
evidence code and commentary

s 93 EVIDENCE
93 Cross-examination in civil proceeding 
If a party in a civil proceeding cross-examines a witness who has the same, or substantially the same, interest in the proceeding as the cross-examining party, the judge may, in the interests of justice, limit the extent to which leading questions may be asked in that cross-examination. 
Definitions: judge, party, proceeding, witness, s 4. 
94 Cross-examination by party of own witness 
The party who called a witness may, if the judge determines the witness to be hostile and gives permission, cross-examine the witness to the extent authorised by the judge. 
Definitions: hostile, judge, party, witness, s 4. 

evidence code and commentary 
Section 93Cross-examination in civil proceeding 
C336 This section applies in civil proceedings only. It provides a useful judicial discretion to limit the extent leading questions may be asked of a compliant and willing witness who has substantially the same interests as the cross-examining party. This discretion is not intended to derogate from the judge's general power to exclude evidence under s 8. 
Section 94Cross-examination by party of own witness 
C337 Section 94(1) codifies the common law rule that allows a party to cross-examine a witness whom the party has called if the witness is declared hostile and the judge gives permission. This includes the situation where a party is called by the cross-examiner. The cross-examination may not range wider than the judge authorises. "Hostile" is defined in s 4. 
C338 A party who has permission may cross-examine its own witness about the witness's truthfulness, but the evidence must be substantially helpful in assessing the witness's truthfulness and comply with other aspects of the truthfulness rules (ss 39 to 41). 
C339 The effect of the definition of "witness" in s 4 is that a person who is called as a witness but refuses to take the oath or make an affirmation, or having taken the oath or made an affirmation, refuses to give evidence, is not a witness and cannot be cross-examined as a hostile witness under s 94. 
C340 The Code's treatment of hearsay and witnesses' previous statements will to a considerable extent eliminate the objection to the prosecution calling a witness known to be hostile, since under the Code both reliable hearsay and a witness's previous inconsistent statement will be admissible to prove the truth of the content. 
evidence code and commentary

s 95 EVIDENCE
95 Restrictions on cross-examination by unrepresented parties 
(1) Notwithstanding section 354 of the Crimes Act 1961, a defendant in a criminal proceeding is not entitled to personally cross-examine 
(a) a complainant in a sexual case; or 
(b) a complainant in a proceeding involving domestic violence; or 
(c) a child who is a witness in a sexual case or a proceeding involving domestic violence. 
(2) In a civil or criminal proceeding, a judge may 
(a) on the application of a witness, order that a party to the proceeding who is not represented by a lawyer must not personally cross-examine the witness; and 
(b) on the judge's own initiative, order that a party to the proceeding who is not represented by a lawyer must not personally cross-examine a witness. 
(3) An order under subsection (2) may be made on one or more of the following grounds: 
(a) the age or maturity of the witness; 
(b) the physical, intellectual, or psychiatric disability of the witness; 
(c) the linguistic or cultural background of the witness; 
(d) the nature of the proceeding; 
Section 95 continues overleaf 

evidence code and commentary 
Section 95Restrictions on cross-examination by unrepresented parties 
C341 This section is a much broader version of the provision in s 23F of the Evidence Act 1908, which it replaces. Section 23F applies only to child complainants and mentally handicapped complainants in sexual cases. This new section enacts an absolute bar on cross-examination by unrepresented defendants of all complainants and child witnesses in sexual cases, and all complainants and child witnesses in domestic violence cases. 
C342 Under s 95(2), the judge has discretion to disallow personal cross-examination in all other cases, on grounds set out in s 95(3). 
C343 Section 95(3)(a) "Age of the witness" is intended to include the elderly as well as children. 
C344 Section 95(3)(b) "Intellectual disability" is equivalent to the term "mentally handicapped" used in the Evidence Act 1908. It appears to be the term most frequently used in New Zealand. "Psychiatric disability" is intended to cover not only those people suffering from the long-term effects of mental illness, but also those in the acute phase of any mental illness. 
C345 Section 95(3)(c) "Linguistic background" refers to anyone who speaks a language other than English _ the language of the court system. The phrase "cultural background" is intended to capture those witnesses who because of their cultural background may be particularly ill-equipped to answer a defendant directly _ for example, a young witness giving evidence against a person to whom, in the witness's culture, obedience is generally owed, such as a person of chiefly status in a Pacific Island community. 
C346 Section 95(3)(d) As an example, an application is likely to be granted in relation to a criminal case involving a history of harassment. 
Section 95 commentary continues overleaf 
evidence code and commentary

s 95 EVIDENCE
(e) the relationship of the witness to the unrepresented party; 
(f) any other grounds likely to promote the purpose of the Code. 
(4) When considering whether or not to make an order under subsection (2), the judge must 
(a) ensure the fairness of the proceeding and, in a criminal proceeding, that the defendant has a fair trial; and 
(b) have regard to 
(i) the need to minimise the stress of the complainant or witness; and 
(ii) any other factor that is relevant to the just determination of the proceeding. 
(5) Subject to subsection (6), an unrepresented defendant or party to a proceeding who under this section is precluded from personally cross-examining a witness may have his or her questions put to the witness by the judge or a person appointed by the judge for the purpose. 
(6) In respect of each question, the judge may 
(a) put the question, or allow the question to be put, to the witness; or 
(b) put the question, or require the question to be put, to the witness in a form rephrased by the judge; or 
(c) refuse to put, or refuse to allow the question to be put, to the witness. 
Definitions: child, domestic violence, judge, party, proceeding, sexual case, witness, s 4. 

evidence code and commentary 
Section 95 commentary continued
C347 Section 95(3)(e)The expression "the relationship of the witness to the unrepresented party" is intended to capture those situations where a prior relationship of some kind, especially one involving unequal power, existed between the witness and the unrepresented party (which would include the defendant in a criminal trial). For example, if a woman is required to give evidence against her partner in a sexual case, or in family proceedings, she may be unable to do so at all if personally confronted by someone who had subjected her to physical and emotional abuse. 
C348 Section 95(3)(f) allows the judge to base a decision on grounds not precisely anticipated by the Code provisions, but justified by the purpose of the Code. 
C349 Section 95(4)In identifying factors the judge must consider when deciding whether to make an order, this provision gives particular emphasis to ensuring fairness of the proceeding and, in a criminal proceeding, ensuring a fair trial for the defendant. 
C350 Section 95(5) carries forward the provisions of s 23F(3) and (5) of the Evidence Act 1908 in allowing an unrepresented party who is precluded from personally cross-examining a witness to put questions to the witness through the judge or through a person appointed by the judge for this purpose. In considering whom to appoint, the judge should have regard to the factors in s 95(3) and (4). It may not be appropriate, for example, for a friend or relative of the unrepresented party to ask the questions. Under s 95(6), the judge is given express powers to rephrase a question or require that it be rephrased, or to refuse to allow the question to be put _ for example, if it is unacceptable in terms of s 85. 
evidence code and commentary

s 96 EVIDENCE
96 Cross-examination on previous statements of witnesses 
(1) A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness provided that the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness. 
(2) If a witness does not expressly admit making the statement and the party wishes to prove that the witness did make the statement 
(a) the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing; and 
(b) the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness's testimony. 
(3) If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the defendant's rights to a non suit or to make a no-case application and the defendant's rights in relation to the order of addressing the court are not affected by that use. 
Definitions: document, party, proceeding, previous statement, statement, witness, s 4. 

evidence code and commentary 
Section 96Cross-examination on previous statements of witnesses 
C351 This section replaces ss 10 and 11 of the Evidence Act 1908. It covers both oral and written prior statements of a witness and applies to civil as well as criminal proceedings. It is concerned with how a witness may be cross-examined on a previous statement. "Previous statement" is defined in s 4. 
C352 A previous statement cannot be used in cross-examination if it is inadmissible _ s 90. The previous consistent statements rule in s 37 (which limits the admissibility of previous consistent statements) does not exclude previous inconsistent statements. If not otherwise excluded, previous inconsistent statements are admissible to prove the truth of their contents. However, if the purpose of offering such statements is solely or mainly to challenge the truthfulness of the maker, the truthfulness rules apply _ s 4(2)(b). 
C353 The purpose of s 96(1) and (2) is to state clearly at what stage and in what circumstances a previous statement must be shown to a witness who is being cross-examined on it. Once it is shown to the witness being questioned, s 90(2) requires the statement to be shown to every other party to the proceeding. 
C354 Section 96(3) preserves a defendant's position in relation to a non suit, a no-case application and the order of addressing the jury if the defendant uses a document to cross-examine a witness but does not offer it in evidence. However, s 90(2) requires the document to be shown to every other party to the proceeding. 
evidence code and commentary

s 97 EVIDENCE
97 Re-examination 
(1) On re-examination, a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, including any qualification in cross-examination of evidence given by the witness in examination in chief, but may not be questioned about any other matter except with the permission of the judge. 
(2) If permission is given under subsection (1), the judge must allow other parties to cross-examine the witness on the additional evidence given and may allow further re-examination on matters arising out of that cross-examination. 
Definition: judge, party, witness, s 4. 
98 Further evidence after closure of case 
(1) Except with the permission of the judge, a party may not offer further evidence after closing that party's case. 
(2) In a civil proceeding, the judge may grant permission under subsection (1) unless any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both. 
(3) In a criminal proceeding, the judge may grant permission to the prosecution under subsection (1) in the interests of justice 
(a) if the further evidence relates to a purely formal matter; or 
(b) if the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or 
(c) if the further evidence was not available or admissible before the prosecution's case was closed; or 
(d) in any other exceptional circumstance. 
Section 98 continues overleaf 

evidence code and commentary 
Section 97Re-examination 
C355 This rule largely codifies existing law and practice. 
C356 Section 97(1) clarifies a possible ambiguity about the scope of questions that may be asked in re-examination. If a witness under cross-examination qualifies something said in examination in chief, s 97(1) treats the qualification as a matter arising out of the cross-examination on which the witness may be re-examined. A party calling a witness who is declared hostile may re-examine the witness on matters raised by the cross-examination of that witness by other parties. 
C357 Section 97(2) seeks to encourage uniformity in a varying practice by requiring a judge who gives a party permission to re-examine a witness on matters other than those arising out of cross-examination, to allow the other parties to cross-examine that witness on the additional evidence. 
Section 98Further evidence after closure of case 
C358 Section 98(1) codifies the general rule that a party must lead all evidence before closing its case. The judge has a discretion to allow further evidence, and is likely to do so if the Code specifically provides for it; for example, under s 92(2)(a). 
C359 Section 98(2) In a civil proceeding, the judge is likely to permit a party to call further evidence _ especially if it is in rebuttal _ unless any unfairness caused to any other party in doing so cannot be remedied by an adjournment or an award of costs. 
C360 Section 98(3) sets out the circumstances in which a judge may allow the prosecution in a criminal case to offer further evidence in the interests of justice. Paragraph (a) would allow, for example, formal evidence that the Attorney-General has given the necessary consent to a prosecution under s 144A of the Crimes Act 1961 (sexual conduct with children outside New Zealand). Paragraph (b) confirms that it is no longer necessary for rebuttal evidence to deal with a matter no human ingenuity could have foreseen. As well as evidence that was not previously available, para (c) allows further evidence that would not have been admissible and therefore could not have been led in chief. An example would be evidence of a prosecution witness's previous consistent statement that is introduced to rebut an allegation of recent fabrication made by the defence after the prosecution has closed its case _ s 37(a). 
Section 98 commentary continues overleaf 
evidence code and commentary

s 98 EVIDENCE
(4) In a criminal proceeding, the judge may grant permission to a defendant under subsection (1) if the interests of justice require the further evidence to be admitted. 
(5) The judge may grant permission under subsections (2), (3), and (4) at any time until the jury retire to consider their verdict (if there is a jury) or until judgment is delivered in any other proceeding. 
Definitions: judge, party, proceeding, s 4. 
99 Witnesses recalled by the judge 
(1) The judge may recall a witness who has given evidence in a proceeding if the judge considers that it is in the interests of justice to do so. 
(2) The judge may recall a witness under this section at any time until the jury retire to consider their verdict (if there is a jury) or until judgment is delivered in any other proceeding. 
Definitions: judge, proceeding, witness, s 4. 
100 Questioning of witnesses by the judge 
(1) The judge may ask a witness such questions as justice requires. 
(2) If the judge questions a witness, 
(a) every party, other than the party who called the witness, may cross-examine the witness on any matter raised by the judge's questions; and 
(b) the party who called the witness may re-examine the witness. 
Definitions: judge, party, proceeding, witness, s 4. 

evidence code and commentary 
Section 98 commentary continued
C361 In the case of a defendant in a criminal case, the judge's discretion may be exercised in the interests of justice without further qualification _ s 98(4). 
Section 99Witnesses recalled by the judge 
C362 It is expected that a judge's discretion to recall a witness will be exercised sparingly. 
C363 The time limit in s 99(2) for the judge to recall a witness coincides with the time limit for the admission of further evidence under s 98. 
Section 100Questioning of witnesses by the judge 
C364 Section 100(1) is a reminder that a judge's questioning of a witness should be circumscribed by the requirements of justice. Case law discussing the scope of acceptable judicial questions can still be a useful guide; for example, E H Cochrane v MOT (1987) 3 CRNZ 38 (CA), R v Loumoli (1995) 13 CRNZ 7 (CA), and R v Fotu (1995) 13 CRNZ 177 (CA). 
C365 Practice varies on whether parties are given an opportunity to question a witness on matters arising from answers given to the judge. Section 100(2) codifies the fairer practice. 
evidence code and commentary

s 101 EVIDENCE
101 Jury questions 
(1) If a jury wishes to put a question to a witness in a proceeding, the jury must first inform the judge of the question and the judge must determine whether the question should be put to the witness and, if the question is to be put to the witness, whether the parties may question the witness about matters raised by the question. 
(2) If a question from the jury is put to a witness, 
(a) every party, other than the party who called the witness, may crossexamine the witness on any matter raised by the jury's question; and 
(b) the party who called the witness may re-examine the witness. 
Definitions: judge, party, proceeding, witness, s 4. 

evidence code and commentary 
Section 101Jury questions 
C366 This section recognises the value of the jury, as judges of fact, being able to have its questions put to a witness, subject to the judge deciding whether the question should be put. The judge is likely to alert counsel, because in many cases it will be appropriate for counsel to put the question. If a jury question is put to a witness, the parties will be entitled to question the witness on matters arising from the jury's question. 
evidence code and commentary

s 102 EVIDENCE
Subpart 5 _ Alternative ways of giving evidence 
102 Directions about way child complainants are to give evidence 
(1) In a criminal proceeding in which there is a child complainant, the prosecution must apply for directions about the way in which the complainant is to give evidence in chief and be cross-examined. 
(2) An application for directions must be made to the court as early as practicable before the proceeding is to be heard; but the court may accept and hear an application for directions at a later time. 
(3) When considering an application under this section, the judge must 
(a) ensure the fairness of the proceeding and that the defendant has a fair trial; and 
(b) have regard to the wishes of the complainant and 
(i) the need to minimise the stress of the complainant; and 
(ii) the need to promote the recovery of the complainant from the alleged offence; and 
(iii) take into account any other factor that is relevant to the just determination of the proceeding. 
Definitions: child, child complainant, judge, party, proceeding, s 4. 

evidence code and commentary 
Subpart 5
Alternative ways of giving evidence 
C367 This Subpart provides ways of giving evidence that are alternative to the ordinary way of giving evidence provided for in s 83. This Subpart replaces and extends the provisions of sections 23D and 23E of the Evidence Act 1908. 
Section 102 Directions about way child complainants are to give evidence 
C368 This provision carries forward in an extended form s 23D of the Evidence Act 1908. It changes the current law in several ways: 
• applications will not be mandatory for "mentally handicapped" witnesses; 
• applications will be mandatory for all child complainants, not only in sexual cases; 
• the provision applies to summary as well as indictable proceedings; 
• the directions cover cross-examination as well as examination in chief. 
C369 The phrase "as early as practicable" in s 102(2) is intended to ensure that the question of how a child complainant is to give evidence is dealt with as soon as possible. Timeliness is particularly important in the case of applications to offer videotaped evidence, where one of the purposes is to obtain fresh evidence from witnesses who may be more susceptible to memory loss. Applications may be made before a preliminary hearing in indictable proceedings where the witness has been required to testify in person. 
C370 Section 102(3) sets out the factors which the judge must take into account in considering an application, including the wishes of the child complainant. This is in keeping with New Zealand's obligations under the United Nations Convention on the Rights of the Child, and is supported by research suggesting it is helpful for children to feel they have some control over the process. 
evidence code and commentary

s 103 EVIDENCE
103 Directions about alternative ways of giving evidence 
(1) In any proceeding, the judge may, either on the application of a party or on the judge's own initiative, direct that a witness is to give evidence in chief and be cross-examined in the ordinary way or in an alternative way as provided in section 105. 
(2) An application for directions must be made as early as practicable before the proceeding is to be heard; but the judge may accept and hear an application at a later time. 
(3) A direction that a witness is to give evidence in an alternative way may be made on the grounds of 
(a) the age or maturity of the witness; 
(b) the physical, intellectual, or psychiatric disability of the witness; 
(c) trauma suffered by the witness; 
(d) the witness's fear of intimidation; 
(e) the linguistic or cultural background of the witness; 
(f) the nature of the proceeding; 
(g) the nature of the evidence that the witness is expected to give; 
(h) the relationship of the witness to any party to the proceeding; 
(i) the absence of the witness from New Zealand; 
(j) any other ground likely to promote the purpose of the Code. 
(4) In giving directions under subsection (1), the judge must 
(a) ensure the fairness of the proceeding and, in particular in a criminal proceeding, that the defendant has a fair trial; and 
(b) have regard to the wishes of the witness and 
(i) the need to minimise the stress of the witness; and 
(ii) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and 
(iii) any other factor that is relevant to the just determination of the proceeding. 
Definitions: judge, party, proceeding, witness, s 4. 

evidence code and commentary 
Section 103Directions about alternative ways of giving evidence 
C371 This section is new. It empowers a judge in a civil or criminal proceeding to give directions about how a witness should give evidence in chief and be cross-examined. The power may be exercised on the application of the party calling the witness or on the judge's own initiative. Although "witness" includes a defendant in a criminal case, it is expected that an application for a defendant to give evidence in an alternative way will only be granted in the most exceptional cases. 
C372 Section 103(2)Applications must be made as early as practicable before the hearing commences, although the court is given a discretion to accept and deal with an application at a later time. If the witness is required to give evidence in person at a preliminary hearing, the application must be made as early as practicable before that hearing. 
evidence code and commentary

s 104 EVIDENCE
104 Chambers hearing before directions for alternative ways of giving evidence 
Before giving any directions about the way in which a witness is to give evidence in chief and be cross-examined, the judge must give each party an opportunity to be heard in chambers; and the judge may call for and receive a report from any person considered by the judge to be qualified to advise on the effect on the witness of giving evidence in the ordinary way or any alternative way. 
Definitions: judge, party, witness, s 4. 
Note: The ordinary way of giving evidence is described in section 83. 
105 Alternative ways of giving evidence 
(1) A judge may direct under section 103 that the evidence of a witness is to be given in an alternative way so that 
(a) the witness gives evidence 
(i) while in the courtroom but unable to see the defendant or specified party or witness; or 
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or 
(iii) by a video record made before the hearing of the proceeding; and 
(b) any appropriate practical and technical means enable the judge, the jury (if any), and lawyers to see and hear the witness giving evidence as provided in the regulations; and 
(c) in a criminal proceeding, the defendant is able to see and hear the witness, except where the judge directs otherwise; and 
(d) in a proceeding in which a witness anonymity order has been made, effect is given to the terms of that order. 
Section 105 continues overleaf 

evidence code and commentary 
Section 104Chambers hearing before directions for alternative ways of giving evidence 
C373 This section carries forward the procedure set out in s 23D(2) and (3) of the Evidence Act 1908 for dealing with applications for directions on how witnesses may give evidence. The right of each party to be heard under s 104(1) relates to the decision on whether the application should be granted and if so, to the terms of the directions. A judge is not confined to calling for or receiving a report only from persons who qualify as experts as defined in s 4. The decision as to who is qualified to provide a report is one for the judge, who may or may not choose to hear submissions from counsel on the point. The parties will have a right to be heard on the substance of any report received by the judge, but not on the choice of who should be asked to provide it. 
Section 105Alternative ways of giving evidence 
C374 This section sets out the various alternative ways in which evidence may be given. 
C375 Section 105(1) recognises that alternative ways of giving evidence achieve their purpose by separating the witness, spatially or temporally, while allowing the judge, jury, counsel and the defendant in a criminal proceeding to see and hear the witness. Any witness anonymity order will have precedence over s 105(1). 
C376 The effect of s 105(1)(a)(ii), (b) and (c) is to allow evidence to be given by videolink on any of the grounds listed in s 103(3). The wide terms of s 105(1) are intended to cater for new ways of giving evidence that advancing technology may make possible. 
C377 Section 105(2) carries forward the provisions of s 23E(3) of the Evidence Act 1908 in requiring a judge who has directed that the evidence of a witness may be given in the form of a video record, to also give directions about the way in which that witness is to be cross-examined and re-examined. 
Section 105 commentary continues overleaf 
evidence code and commentary

s 105 EVIDENCE
(2) If a video record of the witness's evidence is to be shown at the hearing of the proceeding, the judge must give directions as to the manner in which cross-examination and re-examination of the witness is to be conducted. 
(3) The judge may admit evidence that is given substantially in accordance with the terms of a direction under this section despite a failure to observe strictly all of those terms. 
Definitions: judge, party, proceeding, video record, witness, s 4. 
106 Video record evidence 
(1) In a criminal proceeding tried on indictment, the video record evidence of a witness that is to be offered as an alternative way of giving evidence at the trial may be the same video record that was offered in evidence at the preliminary hearing. 
(2) A video record offered as an alternative way of giving evidence must be recorded in compliance with the regulations. 
(3) A video record that is to be offered as an alternative way of giving evidence in a proceeding must be viewed by the judge and offered for viewing by all parties or their lawyers before it is offered in evidence unless the judge directs otherwise; and all parties must be given the opportunity to make submissions with regard to the admissibility of all or any part of the video record. 
(4) The judge may order to be excised from a video record offered as evidence any material that, if the evidence were given in the ordinary way, would or could be excluded in accordance with this Code. 
(5) The judge may admit a video record that is recorded and offered as evidence substantially in accordance with the terms of a direction under this Subpart and the terms of regulations referred to in this section despite a failure to observe strictly all of those terms. 
Definitions: judge, party, proceeding, video record, witness, s 4. 

evidence code and commentary 
Section 105 commentary continued
C378 Although counsel and other trial participants have a duty to comply with the judge's directions, s 105(3) gives the judge a discretion to admit evidence that does not strictly conform to those directions. This is discussed in more detail in relation to s 106(5). 
Section 106Video record evidence 
C379 Section 106(1) changes s 23E(1)(a) of the Evidence Act 1908, which it replaces. Under s 23E(1)(a), a video record offered as evidence in chief must have been shown at the preliminary hearing. Under s 106(1), a video record is admissible whether it was made before or after the preliminary hearing. This will enable video-recorded evidence to be offered if initial expectations that a witness will be able to give evidence in the ordinary way are not subsequently borne out. If for any reason a witness whose evidence has been video-recorded later becomes unavailable for cross-examination, the evidence is hearsay and must comply with the hearsay rules. 
C380 The provisions of s 23E(4) of the Evidence Act 1908 have not been re-enacted. 
C381 Section 106(5) contains a provision similar to s 105(3). Current case law requires "substantial but not slavish" compliance with the regulations. One breach considered to be substantial by the courts is the failure to establish the witness's competence. The abolition of the competence requirement by s 73 means there is no longer any need to make this inquiry. 
C382 Evidence given by way of a video record or in another alternative way must comply with any of the applicable rules in Subpart 4 on questioning of witnesses. Such evidence is also subject to the general exclusion provisions of s 8. 
evidence code and commentary

s 107 EVIDENCE
Subpart 6 _ Corroboration, judicial warnings and judicial directions 
107 Corroboration 
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to offences of 
(a) perjury; and 
(b) false oaths; and 
(c) false statements or declarations; and 
(d) treason. 
(2) Subject to subsection (1) and section 108, if there is a jury, it is not necessary for the judge to 
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or 
(b) give a direction relating to the absence of corroboration. 
Definition: judge, proceeding, s 4. 

evidence code and commentary 
Subpart 6
Corroboration, judicial warnings and judicial directions 
Section 107 Corroboration 
C383 This section extends and replaces ss 12B and 23AB of the Evidence Act 1908. Section 107(1) abolishes the need for prosecution evidence in a criminal proceeding to be corroborated, except for the offences listed. Section 107(2) abolishes the need for the judge to give a jury warning or direction about uncorroborated evidence. This is not intended to limit the power to give a warning in a particular case, and is expressly subject to s 108, which requires the judge to warn the jury about potentially unreliable evidence. 
evidence code and commentary

s 108 EVIDENCE
108 Judicial warnings about unreliable evidence 
(1) If the judge in a criminal proceeding tried with a jury is of the opinion that evidence may be unreliable, the judge must warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. 
(2) In a criminal proceeding tried with a jury, the judge must consider whether to warn the jury under subsection (1) whenever there is 
(a) hearsay evidence; or 
(b) evidence of a confession that is the only evidence of an offence; or 
(c) evidence offered by a witness who may have a motive to give false evidence that is prejudicial to a defendant. 
Section 108 continues overleaf 

evidence code and commentary 
Section 108Judicial warnings about unreliable evidence 
C384 This section contains a general requirement for the judge to warn the jury about any evidence that in the judge's opinion may be unreliable; it also replaces the statutory and common law rules requiring judicial warnings about specific classes of evidence. 
C385 The three categories mentioned in s 108(2) are to be treated as potentially unreliable evidence requiring the judge to consider in every case whether to give a warning. A warning is necessary only if the judge forms the opinion that the evidence in the particular case is potentially unreliable. Paragraph (c) re-enacts the substance of s 12C of the Evidence Act 1908. If in a joint trial the judge gives a warning under para (c) about one defendant's evidence that is prejudicial to a co-defendant, it would be appropriate for the judge to also give the jury a warning about lies (s 110). 
C386 With regard to hearsay, the following is an adaptation of a suggested warning issued by the Judicial Studies Board of Great Britain that may be appropriate: 
As you know, the general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box. However, there are certain circumstances where a witness is unavailable and the statement of that witness is read out. That has happened here in the case of the witness X. That statement is evidence in the case which you can consider, but as he/she did not come to court, his/her evidence has not been tested under cross-examination, and therefore you have not had the opportunity of seeing how the evidence survived this form of challenge. You must therefore consider the evidence of X in the light of this limitation. You should only act upon it, if having taken this [and other matters I will shortly mention] into account, you are nevertheless sure that it is reliable. 
C387 The jury may also find it helpful to be told that in estimating the weight they should give to hearsay evidence, they must consider all the circumstances from which any inference can reasonably be drawn about the reliability or otherwise of the hearsay evidence. The jury may be assisted by having their attention directed to the circumstances that are relevant in the particular case. These may include the following (the list is not intended to be exhaustive): 
(a) whether the hearsay statement was made at the same time as the occurrence or existence of the matters to which it refers; 
(b) whether the evidence involves multiple hearsay; 
(c) whether any person involved had any motive to conceal or misrepresent matters; 
Section 108 commentary continues overleaf 
evidence code and commentary

s 108 EVIDENCE
(3) In a criminal proceeding tried with a jury, a party may request the judge to warn the jury in accordance with subsection (1), but the judge need not comply with such a request if the judge is of the opinion that to do so might unnecessarily emphasise evidence or for any other good reason. 
(4) It is not necessary for a judge to use a particular form of words in giving the warning. 
(5) This section does not affect any other power of the judge to warn or inform the jury. 
(6) If there is no jury, the judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable. 
Definitions: hearsay, judge, party, proceeding, witness, s 4. 

evidence code and commentary 
Section 108 commentary continued
(d) whether the hearsay statement was an edited account, or was made in collaboration with another person for a particular purpose; 
(e) whether the circumstances in which the hearsay is offered suggest an attempt to prevent proper evaluation of its weight. 
C388 Section 108(3) enables a judge's common sense and judgment to override a request for a warning that may be ill-advised. 
C389 This section is expressly stated not to limit or otherwise affect the power of the judge to warn or inform the jury _ s 108(5). 
C390 Section 108(6) is a reminder to a judge sitting without a jury to be mindful of the need for caution before entering a conviction on the basis of potentially unreliable evidence. 
evidence code and commentary

s 109 EVIDENCE
109 Judicial directions about certain ways of offering evidence 
If in a criminal proceeding tried with a jury 
(a) a witness offers evidence in an alternative way under Subpart 5; or 
(b) the defendant is not permitted to personally cross-examine a witness; or 
(c) a witness offers evidence in accordance with a witness anonymity order, 
the judge must direct the jury that the law makes special provision for the manner in which evidence is to be given or questions are to be asked in certain circumstances and the jury must not draw any adverse inference against the defendant because of such manner of giving evidence or questioning. 
Definitions: judge, proceeding, witness, s 4. 
110 Judicial warnings about lies 
(1) This section applies to evidence offered in a criminal proceeding that a defendant has lied either before or during the proceeding. 
(2) Where evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence except as required by subsection (3). 
(3) If, in a criminal proceeding tried with a jury, a defendant so requests or the judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the judge must warn the jury that 
(a) the jury must be satisfied before using the evidence that the defendant did lie; and 
(b) people lie for various reasons; and 
(c) the jury should not necessarily conclude that just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried. 
(4) In a criminal proceeding tried without a jury, the judge must bear in mind the matters set out in subsection (3) before placing any weight on evidence of a defendant's lie. 
Definitions: judge, proceeding, s 4. 

evidence code and commentary 
Section 109Judicial directions about certain ways of offering evidence 
C391 This section follows and extends s 23H(a) of the Evidence Act 1908. Its purpose is to counteract as much as possible any adverse effect on the defendant arising from the fact that a witness has given evidence in an alternative way under s 105, or anonymously under a witness anonymity order, or if a defendant has been precluded by s 95 from personally crossexamining a witness. In each case, a direction is mandatory. It would be appropriate for the judge to tell the jury that these ways of giving evidence or questioning are options available under the law. 
Section 110Judicial warnings about lies 
C392 This section applies to lies alleged to have been told by a defendant before a proceeding or in the defendant's testimony at a proceeding. 
C393 Section 110(2) changes the law by allowing evidence of a defendant's lies to be left to the jury without any further or specific direction about how the jury should use that evidence. Under subs (2), if the prosecution alleges that the defendant lied because he or she had a guilty mind, the issue becomes a matter of inference for the fact-finder. The judge will no longer be required to explain to the jury just how and why the lie could point to guilt. 
C394 Under s 110(3) a warning is mandatory if a defendant requests it or if the judge considers that there is a risk the jury may draw unwarranted inferences against the defendant. 
C395 Section 110(4) is a reminder to a judge sitting without a jury of the matters set out in subs (3). 
evidence code and commentary

s 111 EVIDENCE
111 Judicial directions about children's evidence 
(1) In a proceeding tried with a jury in which the complainant is a child at the time the proceeding commences, the judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the judge would not have given such a warning had the complainant been an adult. 
(2) In a proceeding tried with a jury in which a witness is a child, the judge must not, in the absence of expert evidence to the contrary, instruct the jury that there is a need to scrutinise the evidence of children generally with special care nor suggest to the jury that children generally have tendencies to invention or distortion. 
(3) Despite subsection (2), if in a proceeding tried with a jury in which a witness is a child under the age of 6 the judge is of the opinion that the jury may be assisted by a direction about the evidence of very young children and how the jury should assess such evidence, the judge may give the jury a direction to the following effect: 
• even very young children can accurately remember and report things that have happened to them in the past, but because of development differences, children may not report their memories in the same manner or to the same extent as an adult would; this does not mean that a child witness is any more or less reliable than an adult witness; 
• one difference is that very young children typically say very little without some help to focus on the events in question; 
• another difference is that, depending on how they are questioned, very young children can be more open to suggestion than older children or adults; 
• thus the reliability of the evidence of very young children depends crucially on the way they are questioned, and it is important, when deciding how much weight to give to their evidence, to distinguish open questions aimed at obtaining information from leading questions which put words into their mouths. 
(4) This section does not affect any other power of the judge to warn or inform the jury. 
Definitions: child, judge, proceeding, witness, s 4. 

evidence code and commentary 
Section 111Judicial directions about children's evidence 
C396 Section 111(1) and (2) extend s 23H(b) and (c) of the Evidence Act 1908 to all proceedings tried with a jury. Section 111(2) preserves the prohibition on the judge telling the jury that children as a class have a tendency to invent or distort, but contains an added qualification allowing judicial comment if there is expert evidence to the contrary. The general prohibition in s 111(2) applies to all children and is about an assumed tendency to invent or distort spontaneously and without prompting, whereas s 111(3) applies to very young children and is about the possible contamination of their evidence by suggestive questioning. The two are therefore complementary. 
C397 Section 111(3) contains a direction intended to be of assistance to a jury in assessing evidence from very young children. The direction was formulated with the assistance of experts in child psychology and contains what appears to be common ground in the considerable volume of research on the subject. It is intended to be used in its totality, because omitting any aspect of it will have the effect of making the direction unbalanced and misleading. The intention of s 111(3) is to direct attention away from discussions about the inherent reliability of very young children's evidence relative to that of older children or adults, and to focus instead on the way information has been obtained from them at all stages of the investigation and at trial. Since the reliability of very young children's evidence depends crucially on the way they are questioned, full disclosure of all questioning is essential. The Law Commission is working on a statutory regime for criminal discovery that will include an obligation on the prosecution to disclose relevant information that the prosecution knows exists or is in the possession of third parties. 
evidence code and commentary

s 112 EVIDENCE
112 Judicial warnings about identification evidence 
(1) Where in a criminal proceeding with a jury the case against the defendant depends wholly or substantially on the correctness of one or more visual or voice identifications of the defendant or any other person, the judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification. 
(2) The warning need not be in any particular words but must 
(a) warn the jury that a mistaken identification can result in a serious miscarriage of justice; and 
(b) alert the jury to the possibility that a mistaken witness may be convincing; and 
(c) where there is more than one identification witness, refer to the possibility that all of them may be mistaken. 
Definitions: judge, proceeding, visual identification evidence, voice identification evidence, witness, s 4. 

evidence code and commentary 
Section 112Judicial warnings about identification evidence 
C398 This section re-enacts and extends s 344D of the Crimes Act 1961 and applies to both visual and voice identification. In addition to the matters set out in s 112(2), or in elaborating one or more of those matters, a warning could include, if relevant, the following: 
• the difficulty of assessing the reliability of identification evidence, particularly as a witness's confidence, or lack of confidence, does not necessarily indicate how reliable their identification evidence is; 
• the ways in which events surrounding the witness's observation of the defendant may have influenced the quality of the identification evidence (eg, time of observation, lighting, distance of witness from offender, weather conditions, the stress inherent in the situation, whether violence was used, or whether a weapon was involved); 
• the ways in which any factors particular to the individual witness may have influenced the quality of the identification evidence (eg, poor eyesight or hearing, or bias); 
• the ways in which any factors relating to the defendant may have influenced the quality of the identification evidence (eg, the use of a disguise); 
• the fact that if the witness and defendant are of a different race/ethnicity, the identification may be less reliable; 
• the greater the period of time between the sighting and the identification, the greater the likely deterioration of memory; 
• the fact that memory of peripheral detail, and the quality or consistency of descriptions given by the witness, may not be indicators of reliability. 
evidence code and commentary

s 113 EVIDENCE
113 Delayed complaints or failure to complain in sexual cases 
If in a sexual case evidence is given or a question is asked or a comment is made that tends to suggest that the person upon whom the offence is alleged to have been committed delayed making or failed to make a complaint in respect of the offence, the judge may tell the jury that there may be good reasons for the victim of such an offence to delay making or fail to make such a complaint. 
Definition: judge, sexual case, s 4. 

evidence code and commentary 
Section 113Delayed complaints or failure to complain in sexual cases 
C399 This section re-enacts the substance of s 23AC of the Evidence Act 1908. Under the Code, evidence of recent complaint may only be given within the terms of s 37(a): that is, as a previous consistent statement to meet a challenge to credibility. 
evidence code and commentary

s 114 EVIDENCE
Subpart 7 _ Judicial notice and reference to reliable public documents 
114 Judicial notice 
Judicial notice may be taken of the following: 
(a) facts so known and accepted generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned; and 
(b) facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. 
Definition: proceeding, s 4. 
115 Admission of reliable published documents 
(1) A judge may, in matters of public history, literature, science, or art, admit as evidence such published documents as the judge considers to be reliable sources of information on the subjects to which they respectively relate. 
(2) Subpart 1 of Part 3 (hearsay evidence) and Subpart 2 of Part 3 (opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1). 
Definition: document, s 4. 

evidence code and commentary 
Subpart 7
Judicial notice and reference to reliable public documents 
Section 114Judicial notice 
C400 This section sets out the facts of which judicial notice may be taken. The judge may accept those facts without requiring them to be proved, and if there is a jury, the judge may direct the jury to treat those facts as if they have been proved. 
Section 115Admission of reliable published documents 
C401 This section replaces s 42 of the Evidence Act 1908. It codifies a common law exception to the hearsay rule which admitted accredited public histories, scientific works and maps to prove facts of a public nature. In New Zealand, reports of the Waitangi Tribunal have been admitted under s 42 as evidence on matters of historical fact and Mäori custom _ Te Runanga o Muriwhenua v Attorney-General [1990] 2 NZLR 641, 653 (CA). 
evidence code and commentary

s 116 EVIDENCE
Subpart 8 _ Evidence of foreign law 
116 Evidence of foreign law 
(1) A party may offer as evidence of a statute or other written law, proclamation, treaty, or act of state, of a foreign country 
(a) evidence given by an expert; or 
(b) a copy of the statute or other written law, proclamation, treaty, or act of state that is certified as a true copy by a person who might reasonably be supposed to have the custody of the statute or other written law, proclamation, treaty, or act of state; or 
(c) any document containing the statute or other written law, proclamation, treaty, or act of state that purports to have been issued by the government or official printer of the country or by authority of the government or administration of the country; or 
(d) any document containing the statute or other written law, proclamation, treaty, or act of state that appears to the judge to be a reliable source of information. 
(2) In addition, or as an alternative, to the evidence of an expert, a party may offer as evidence of the unwritten or common law of a foreign country or as evidence of the interpretation of a statute or other written law or a proclamation of a foreign country a document containing reports of judgments of the courts of the country if the document appears to the judge to be a reliable source of information about the law of that country. 
(3) A party may offer as evidence of a statute or other written law of a foreign country or of the unwritten or common law of a foreign country any publication which describes or explains the law of that country, if it appears to the judge to be a reliable source of information about the law of that country. 
(4) A judge is not bound to accept or act on a statement in any document as evidence of the law of a foreign country. 
(5) A reference in this section to a statute of a foreign country includes a reference to a regulation, rule, by-law or other instrument of subordinate legislation of the country. 
(6) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. 
Definitions: document, expert, foreign country, offer evidence, party, statement, s 4. 

evidence code and commentary 
Subpart 8 
Evidence of foreign law 
Section 116Evidence of foreign law 
C402 Paragraph (a) of s 116(1) codifies the common law and paras (b) to (d) carry forward the provisions of ss 39 to 41 of the Evidence Act 1908 on the methods of proving foreign law. Without the assistance of an expert, a judge is likely to be cautious in seeking to understand and interpret foreign legal material, or in trying to establish how authoritative and up-to-date an apparently reliable source may be. However, these are issues of weight rather than admissibility. 
C403 In the absence of evidence about the foreign law, a judge will apply the New Zealand law on the relevant matter. If the foreign law is the same or substantially the same as New Zealand law, no need to prove the foreign law will arise. 
C404 A judge is not bound to accept a book or other publication as conclusive of any matter stated in the book or publication _ s 116(4). The judge's acceptance or otherwise is likely to depend, among other things, on how familiar the judge is with the legal system of the jurisdiction and thus whether the judge is able to understand the statements in their context and to assess how authoritative the publication may be. 
C405 The hearsay rules are expressly excluded, but the opinion rule applies to evidence of foreign law. 
evidence code and commentary

s 117 EVIDENCE
Part 6
Documentary evidence and evidence produced by 
machine, device or technical process 
117 Offering documents in evidence without calling a witness 
(1) A party may give notice in writing to every other party that the party proposes to offer a document, including a public document, as evidence in the proceeding without calling a witness to produce the document. A copy of the document must be attached to the notice. 
(2) A party who on receiving a notice wishes to object to the authenticity of the document to which the notice refers or to the fact that it is to be offered in evidence without being produced by a witness must give a notice of objection in writing to every other party. 
(3) If no party objects to a proposal to offer a document as evidence without calling a witness to produce it or if the judge dismisses an objection to the proposal, the document, if otherwise admissible, may be admitted in evidence and it will be presumed, in the absence of evidence to the contrary, that the nature, origin, and contents of the document are as shown on its face. 
(4) A party must give notice of a proposal to offer a document without calling a witness to produce it 
(a) a sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the proposal; or 
(b) within such time, whether before or after the commencement of the hearing, as the judge may allow and subject to any conditions that the judge may impose. 
(5) A party must give notice of objection to a proposal to offer a document without calling a witness to produce it 
(a) a sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the notice; or 
(b) within such time, whether before or after the commencement of the hearing, as the judge may allow and subject to any conditions that the judge may impose. 
Section 117 continues overleaf 

evidence code and commentary 
Part 6
Documentary evidence and evidence produced by machine, device or technical process 
C406 This Part of the Code contains provisions on the admissibility and authenticity of documentary evidence. It also contains a provision about evidence produced by a machine, device or technical process. 
C407 Part 6 aims to simplify, shorten and clarify the existing rules. Current technology can assure accuracy in many instances without the need to produce the original, and indeed, it is often impossible to distinguish a copy from the original. It will, of course, always remain open to a party to dispute the accuracy of secondary evidence. 
C408 If the authenticity of documents is not in dispute, as is often the case _ especially in civil proceedings _ the Code allows the documents to be admitted without the need to produce them through a witness _ s 117. This follows logically from s 13, which allows a judge to look at a document and draw inferences about authenticity from the document itself. 
C409 The provisions contained in this Part have no bearing on the application of the hearsay rule. The two rules are complementary. Unless the operation of the hearsay rules is expressly excluded, any document that contains hearsay must also comply with the hearsay rule in the Code. 
Section 117Offering documents in evidence without calling a witness 
C410 Section 117 is intended to simplify the process of producing documents in evidence, including public documents (defined in s 4). This section introduces a new procedure whereby a party who wishes to offer a document in evidence without calling a witness to produce the document, gives notice of its intention to do so and annexes a copy of the document to the notice. It is expected that in the case of a paper document (as opposed to an audiotape or video record) the copy will be a photocopy. If no other party objects, or if the judge dismisses the objection, the document will be admitted and will be presumed to be what it purports to be and to contain what it purports to contain on its face. 
Section 117 commentary continues overleaf 
evidence code and commentary

s 117 EVIDENCE
6) The judge may dispense with the requirement to give notice under subsection (1) or (2) on such conditions as the judge may impose. 
Definitions: copy, document, judge, party, proceeding, public document, witness, s 4. 
118 Summary of voluminous documents 
(1) A party may, with the permission of the judge, give evidence of the contents of a voluminous document or a voluminous compilation of documents by means of a summary or chart. 
(2) A party offering evidence by means of a summary or chart must, if the judge so directs on the request of another party or on the judge's own initiative, either produce the voluminous document or compilation of documents for examination in court during the hearing or make it available for examination and copying by other parties at a reasonable time and place. 
Definitions: document, judge, offer evidence, party, s 4. 

evidence code and commentary 
Section 117 commentary continued
C411 The notice requirement is in addition to any disclosure that occurred during discovery. Its purpose is to indicate to other parties which documents will be produced in evidence without calling a witness to produce them. Compliance should be a simple matter. For instance, parties may indicate by reference to the list of documents provided at discovery which documents will be produced in this way. 
C412 Both notice and counter-notice must be given in sufficient time before a hearing to enable other parties to consider the issues, or within the time the judge allows. This is to promote efficiency and economy by ensuring that problems are dealt with before the hearing. However, the judge has a discretion to allow notice to be given even after the hearing has commenced. 
C413 Under s 117(6), the judge may dispense with notice altogether, subject to any conditions thought necessary. Subsection (6) also enables the judge to develop a specific regime for a particular case _ for example, a complex case with a large volume of documents. This may be done in the context of a system of case management or an application for directions under Rules 438 or 446H of the High Court Rules or Rule 434 of the District Courts Rules. 
C414 The procedural requirements in s 117 are additional to the admissibility requirements elsewhere in the Code; for example, the hearsay rules. 
Section 118Summary of voluminous documents 
C415 Section 118 allows a party, with the permission of the judge, to produce the contents of a voluminous document or compilation of documents in the form of a summary or chart. The section is modelled on Rule 1006 of the United States Federal Rules of Evidence and is designed to meet a practical need. Section 118(2) obliges a party who has given evidence in this way to produce (if the judge so directs) the voluminous document in court or elsewhere at a reasonable time and place for examination by other parties. 
evidence code and commentary

s 119 EVIDENCE
119 Translations and transcripts 
(1) A party may offer a document which purports to be a translation into English of a document in a language other than English if notice is given to all other parties a sufficient time before the hearing to provide those other parties with a fair opportunity to scrutinise the translation. 
(2) The translation will be presumed to be an accurate translation unless evidence sufficient to raise doubt about the presumption is offered. 
(3) A party may offer a document which purports to be a transcript of information or other matter that is recorded 
(a) in a code (including shorthand writing or programming code); or 
(b) in such a way as to be capable of being reproduced as sound or script, 
if notice is given to all other parties a sufficient time before the hearing to provide those other parties with a fair opportunity to scrutinise the transcript. 
(4) A party who offers a transcript of information or other matter in a sound recording under subsection (3) must play all or part of the sound recording in court during the hearing if the sound recording is available and the judge so directs, either on the application of another party or on the judge's own initiative. 
Definitions: document, judge, party, s 4. 
120 Proof of signatures on attested documents 
The signature, execution or attestation of a document (including a testamentary document) that is required by law to be attested may be proved by any satisfactory means and an attesting witness need not be called to prove that the document was signed, executed or attested (whether by handwriting, digital means or otherwise) as it purports to have been signed, executed or attested. 
Definitions: document, witness, s 4. 

evidence code and commentary 
Section 119Translations and transcripts 
C416 Section 119(1) and (2) introduce a presumption that a translation into English of a document in another language is an accurate translation if notice is given in sufficient time before the hearing to enable other parties to examine the translation. For the presumption to apply, however, the contents of the original document must be admissible under the Code. 
C417 Section 119(3) enables a party to offer evidence of information recorded in a code, sound recording or script (such as a microfiche) in the form of a transcript. The words "information or other matter" are deliberately wide in order to include matter not consisting of words _ for example, figures, symbols, music and other sounds, such as radar blips. However, the transcript will be admissible only if the information it transcribes is admissible. The notice requirement will enable opposing parties to apply to have the sound recording played in whole or in part if the accuracy of the transcript is in doubt. 
Section 120Proof of signatures on attested documents 
C418 Section 120 is based on s 18 of the Evidence Act 1908. It abrogates the old rule that one of the subscribing witnesses to an attested document must be called unless all such witnesses are unavailable. Section 120 allows any relevant evidence of due execution or attestation to be given to prove these issues, whether or not the attesting witness is available. Unlike s 18 of the Evidence Act 1908, s 120 applies to wills. 
evidence code and commentary

s 121 EVIDENCE
121 Evidence produced by machine, device or technical process 
(1) If a party offers evidence that was produced wholly or partly by a machine, device, or technical process and the machine, device, or technical process is of a kind that ordinarily does what a party asserts it to have done, it is presumed that on a particular occasion the machine, device, or technical process did what that party asserts it to have done, unless another party offers evidence sufficient to raise a doubt about the presumption. 
(2) If information or other matter is stored in such a way that it cannot be used by the court unless a machine, device, or technical process is used to display, retrieve, produce or collate it, a party may offer a document that was or purports to have been displayed, retrieved, or collated by use of the machine, device, or technical process. 
Definitions: document, offer evidence, party, s 4. 

evidence code and commentary 
Section 121Evidence produced by machine, device or technical process 
C419 The general words "machine, device or technical process" are intended to encompass technological developments, both current and future. A "machine" or a "device" will include, for example, a photocopier, a computer, word processor or a fax machine. "Technical process" is intended to cover a chemical or other process that might not aptly be described as carried out by a machine or device. 
C420 In outline, s 121 provides that if the proponent of machine-produced evidence adduces evidence of the operation that a machine of that kind ordinarily performs (or if the fact-finder is able to take judicial notice of the machine's operation), it is presumed that on the particular occasion the machine did what it ordinarily does. The presumption is rebuttable by evidence sufficient to raise a doubt about it, a lower standard than the formula "evidence to the contrary". 
C421 The objective of the presumption is to facilitate the proof of documents and other things by reducing the need for complex and expensive technical evidence about the workings of a machine when those matters are not seriously in issue. When the presumption is successfully challenged, in addition to evidence on the workings of the class of machines to which the particular machine belongs, the proponent will also have to offer evidence that the particular machine was reliable and was properly operated on the occasion in question. This will enable the fact-finder to infer what would otherwise be presumed: ie, that on the occasion in question, the machine did what it ordinarily does. 
C422 Section 121(2) offers a practical solution to the obvious problem that information stored in a computer or on microfiche, for example, or on sound and video recordings, cannot be accessed without display on a screen or conversion to paper form. The subsection provides that a party may offer a document that purports to display, retrieve or collate such information. "Document" is widely defined in s 4. 
C423 The hearsay and other rules apply to evidence produced by machines. The effect of s 5 is that s 121 will be overridden by other legislative provisions on evidence produced by machines. 
evidence code and commentary

s 122 EVIDENCE
122 Authenticity of public documents 
(1) A document that purports to be a public document, or a copy of or an extract from or a summary of a public document, and to have been 
(a) sealed with the seal of a person or a body that might reasonably be supposed to have the custody of that public document; or 
(b) certified to be such a copy, extract or summary by a person who might reasonably be supposed to have the custody of that public document, 
is presumed, unless the contrary is proved, to be a public document or a copy of the public document or an extract from or summary of the public document, and may be offered in evidence to prove the truth of its contents. 
(2) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. 
Definitions: copy, document, public document, seal, s 4. 

evidence code and commentary 
Section 122Authenticity of public documents 
C424 Section 122(1) contains a rebuttable presumption that a sealed public document ("public document" is defined in s 4) or a certified copy ("copy" is also defined in s 4), extract or summary of a public document is presumed to be what it purports to be. The seal must be the seal of a person or body that might reasonably be supposed to have the custody of the public document _ for example the Clerk of the House of Representatives may reasonably be supposed to have the custody of Acts of Parliament. Similarly, the certification must be by such a person. 
C425 The effect of s 122(2) is that a sealed public document or a certified copy of a public document is admissible to prove the truth of its contents without the restrictions of the hearsay rule. 
evidence code and commentary

s 123 EVIDENCE
123 Evidence of convictions, acquittals, and other judicial proceedings 
(1) Evidence of the following facts, where admissible, may be given by a certificate purporting to be signed by a judge, a registrar or other officer having custody of the court records: 
(a) the conviction or acquittal of a person charged with an offence and the particulars of the offence and of the person, including the name and date of birth of a natural person and the name and date and place of incorporation of a body corporate; 
(b) the sentencing by a court of a person to any penalty and the particulars of the offence for which that person was sentenced and of the person, including the name and date of birth of a natural person and the name and date and place of incorporation of a body corporate; 
(c) an order or judgment of a court and the nature, parties and particulars of the proceeding to which the order or judgment relates; 
(d) the existence of a criminal or civil proceeding, whether or not the proceeding has been concluded and the nature of the proceeding. 
(2) A certificate under this section is sufficient evidence of the facts stated in it without proof of the signature or office of the person appearing to have signed the certificate. 
(3) The manner of proving the facts referred to in subsection (1) authorised by this section is in addition to any other manner of proving any of those facts authorised by law. 
(4) If a certificate under this section is offered in evidence in a proceeding for the purpose of proving the conviction or acquittal of a person, or the sentence by a court of a person to a penalty, or an order made by a court concerning a person, and the name of the person stated in the certificate is substantially similar to the name of the person concerning whom the evidence is offered, it is presumed, in the absence of evidence to the contrary, that the person whose name is stated in the certificate is the person concerning whom the evidence is offered. 
(5) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. 
Definitions: conviction, judge, party, proceeding, s 4. 

evidence code and commentary 
Section 123Evidence of convictions, acquittals, and other judicial proceedings 
C426 This provision sets out the means by which convictions, acquittals, sentences, judgments, orders or pending proceedings may be proved, once it has been determined that evidence of the conviction, acquittal, sentence, judgment, order or pending proceeding is admissible. 
C427 When a fact described in any of the paragraphs in s 123(1) is admissible, that fact may be proved by means of a certificate signed by the person with custody of court records. The certificate will in itself be sufficient to prove the existence of that fact. It will not be necessary to prove the signature or office of the signatory. 
C428 Section 123(4) provides a convenient way of proving the identity of the person about whom the facts referred to in subs (1) are sought to be proved. If the name in a certificate given under subs (1) is substantially similar to the name of the person about whom such a fact is sought to be proved, it is presumed that that person was the person named in the certificate. The presumption can be rebutted by evidence to the contrary. 
C429 Since the hearsay rule does not apply, a certificate issued under subs (1) is admissible to prove the truth of its contents, unless the evidence is precluded by any other provision in the Code. 
evidence code and commentary

s 124 EVIDENCE
124 Proof of conviction by fingerprints 
(1) A certificate is admissible in evidence to prove the identity of a person alleged to have been convicted in a country of an offence if 
(a) the certificate purports to be signed by a fingerprint examiner; and 
(b) copies of the fingerprints of the person are exhibited to or shown on the certificate; and 
(c) the certificate certifies that those copies are copies of the fingerprints of a person who was convicted in the fingerprint examiner's country of the offence of which particulars are given. 
(2) A certificate that 
(a) purports to be signed by a fingerprint examiner; and 
(b) certifies that the copies of the fingerprints which are exhibited to or shown on the certificate made under subsection (1) and the fingerprints of the person in respect of whom a conviction is sought to be proved (a copy of which fingerprints is exhibited to or shown on the certificate made under this subsection) are the fingerprints of the same person 
is evidence that the person in respect of whom the conviction is sought to be proved was convicted of the offence of which particulars were given in the certificate made under subsection (1). 
(3) The manner of proving a conviction authorised by this section is in addition to any other manner of proving the conviction authorised by law. 
(4) The Governor-General may by Order in Council declare that certificates purporting to be made by specified persons or classes of persons in any country other than New Zealand, Australia, United Kingdom, or Canada in respect of convictions for offences committed in that country and to the same effect as certificates under subsection (1) are evidence as if they had been made under subsection (1). 
(5) In this section 
fingerprint examiner means a fingerprint examiner who is 
(a) a member or employee of the Police; or 
(b) a member or employee of a police force in the United Kingdom; or 
(c) a member or employee of a police force of Australia or the police force of a State or Territory of Australia; or 
(d) a member or employee of a police force of Canada or the police force of a Province or Territory of Canada. 
(6) Subparts 1 (hearsay evidence) and 2 (opinion evidence) of Part 3 do not apply to evidence offered under this section. 
Definitions: conviction, country, hearsay, opinion evidence, proceeding, s 4. 

evidence code and commentary 
Section 124Proof of conviction by fingerprints 
C430 This section largely re-enacts s 12A of the Evidence Act 1908. It uses the term fingerprint examiner instead of "fingerprint expert". The definition of "fingerprint examiner" is the same as the definition of "fingerprint expert" in s 12A, except that the definition of "fingerprint examiner" includes civilian police employees as well as police officers. 
C431 Section 124(6) expressly excludes the operation of the hearsay and opinion rules. 
evidence code and commentary

s 125 EVIDENCE
125 New Zealand and foreign official documents 
(1) A document that purports 
(a) to be the Gazette; or 
(b) to have been printed or published by authority of the New Zealand Government; or 
(c) to have been printed or published by the Government Printer; or 
(d) to have been printed or published by order of or under the authority of the House of Representatives, 
is presumed, unless the contrary is proved, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published. 
(2) A document that purports 
(a) to be a government or official gazette (by whatever name called) of a foreign country; or 
(b) to have been printed or published by the government or official printer of a foreign country; or 
(c) to have been printed or published by the authority of the legislative, executive, or judicial branch of the government of a foreign country; or 
(d) to have been printed or published by an international organisation; 
is presumed, unless the contrary is proved, to be what it purports to be and to have been so printed or published and to have been published on the date on which it purports to have been published. 
(3) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. 
Definitions: document, foreign country, international organisation, New Zealand, s 4. 

evidence code and commentary 
Sections 125 to 127 
C432 Sections 125 to 127 contain various presumptions about documentary evidence. They replace some 29 sections of the Evidence Act 1908 (and its amendments), which are complicated and difficult to relate to each other. The presumptions must be distinguished from the admissibility rules in the Code. The presumptions simply assist or facilitate the admission of documentary evidence or the proof of particular facts. Sections 125 to 127 are concerned with official and public documents and impose a burden of proof (not merely an evidential burden) on parties seeking to controvert them. 
C433 The Code does not include a presumption about ancient documents produced from proper custody. Section 13 (about self-authenticating documents) makes such a presumption unnecessary. 
Section 125New Zealand and foreign official documents 
C434 In s 125(2)(c) the words "legislative, executive or judicial branch of the government of a foreign country" are intended to be sufficiently wide to embrace all kinds of executive and legislative bodies. The wide definition of "country" in s 4 means that states, provinces and territories are regarded as a country for the purposes of s 125. 
evidence code and commentary

s 126 EVIDENCE
126 Notification of acts in official documents 
(1) If the doing of an act by the Governor-General or the House of Representatives or by a person authorised to do the act by the law of New Zealand is notified or published in 
(a) the Gazette; or 
(b) a document that was printed or published by authority of the New Zealand Government; or 
(c) a document that was printed or published by the Government Printer; or 
(d) a document that was printed or published by order of or under the authority of the House of Representatives 
it is presumed, unless the contrary is proved, that the act was done and that it was done on the date (if any) that appears in the Gazette or document. 
(2) If the doing of an act by a foreign legislature or a person authorised to do the act by the law of a foreign country is notified or published in 
(a) a government or official gazette (by whatever name called) of a foreign country; or 
(b) a document that was printed or published by the government or official printer of a foreign country; or 
(c) a document that was printed or published by the authority of the legislative, executive, or judicial branch of the government of a foreign country, 
it is presumed, unless the contrary is proved, that the act was done and that it was done on the date (if any) that appears in the gazette or document. 
(3) If the doing of an act by an international organisation is notified or published in a document that was printed or published by the international organisation, it is presumed, unless the contrary is proved, that the act was done and that it was done on the date (if any) that appears in the document. 
(4) Subpart 1 of Part 3 (hearsay evidence) does not apply to evidence offered under this section. 
Definitions: document, foreign country, international organisation, s 4. 

evidence code and commentary 
Section 126Notification of acts in official documents 
C435 Section 126(1) is an adaptation of s 46 of the Evidence Act 1908. The presumption relates to an act notified in an official document and is not, strictly speaking, a presumption about a document. It is placed in this Subpart for convenience, because the presumption has a direct relationship to documents offered in evidence. 
C436 Section 126(2) and (3) extend the provisions of subs (1) to the notified acts of foreign governments and parliaments, and international organisations. 
C437 Section 126 covers a wide variety of publications but it does not presume the accuracy of all the facts mentioned in those publications. For example, although s 126 covers the published reports of Royal Commissions and annual reports of departments printed in the Appendix to the Journals of the House of Representatives, it does not operate to presume that the Royal Commissions' findings or the departmental accounts are correct. These are not acts "notified or published" in the publication. On the other hand, s 126 does operate to presume that an Order in Council notified in the Gazette was made, and, if the Audit Office has certified the accounts of a government department, that they were certified. 
C438 Unlike s 46 of the Evidence Act 1908, s 126 does not explicitly presume the lawfulness of the action notified or published in the official publication. The Law Commission considers that a presumption of lawfulness, as opposed to a presumption that the act was in fact done, is unnecessary. It does not add anything to the common law presumption of the regularity of official acts and is best considered as a matter of substantive administrative law. 
evidence code and commentary

s 127 EVIDENCE
127 Presumptions as to New Zealand and foreign official seals and signatures 
(1) The imprint of a seal that appears on a document and purports to be the imprint of the Seal of New Zealand, or the former Public Seal of New Zealand, or one of the seals of the United Kingdom on a document relating to New Zealand, or the seal of a foreign country, is presumed, unless the contrary is proved, to be the imprint of that seal and the document is presumed, unless the contrary is proved, to have been sealed as it purports to have been sealed. 
(2) The imprint of a seal that appears on a document and purports to be the imprint of the seal of a body (including a court or tribunal) exercising a function of a public nature under the law of New Zealand or the law of a foreign country is presumed, unless the contrary is proved, to be the imprint of that seal and the document is presumed, unless the contrary is proved, to have been sealed as it purports to have been sealed. 
(3) The imprint of a seal that appears on a document and purports to be the imprint of the seal of a person holding a public office or exercising a function of a public nature under the law of New Zealand or the law of a foreign country is presumed, unless the contrary is proved, to be the imprint of that seal and the document is presumed, unless the contrary is proved, to have been sealed as it purports to have been sealed. 
(4) A document that purports to have been signed by a person as the holder of a public office or in the exercise of a function of a public nature under the law of New Zealand or the law of a foreign country is presumed, unless the contrary is proved, to have been signed by that person acting in an official capacity. 
Definitions: document, foreign country, seal, s 4. 

evidence code and commentary 
Section 127Presumptions as to New Zealand and foreign official seals and signatures 
C439 Section 127 contains presumptions about the authenticity of various seals and signatures. These presumptions depart from the approach of existing statutory provisions that provide for certain seals, stamps and signatures to be judicially noticed. 
C440 Examples of holders of public office to whom the presumption in s 127(4) apply are: 
• the Sovereign; 
• the Governor-General; 
• a Minister of the Crown; 
• a member of the Executive Council; 
• a Judge of a New Zealand or foreign court; 
• the Solicitor-General; 
• a Justice of the Peace or Community Magistrate; 
• the Speaker of the House of Representatives; 
• the Clerk of the House of Representatives; 
• the Clerk of the Executive Council. 
evidence code and commentary

s 128 EVIDENCE
Part 7
Miscellaneous 
128 Regulations 
The Governor-General may make regulations by Order in Council prescribing all matters that are required or permitted by this Code to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Code and in particular 
(a) prescribing the procedure to be followed, the type of equipment to be used, and the arrangements to be made, where a person's evidence is to be video recorded; 
(b) providing for the approval of interviewers, or classes of interviewers, for child complainants in sexual cases, and providing for such approvals to be proved by production of certificates in the prescribed form; 
(c) prescribing the form of certificate by which an interviewer is to formally identify a video record; 
(d) providing for the consent of persons to be video recorded and specifying who may give consent on behalf of children who are to be video recorded; 
(e) prescribing the uses to which any video records may be put and prohibiting their use for other purposes; 
(f) providing for the safe custody of video records intended to be offered as evidence; 
(g) providing for the preparation of transcripts of video records and for their uses and safe custody; 
(h) prescribing the form of certificates to be given under sections 63 and 64 by judges to certain witnesses claiming a privilege against self-incrimination; 
(i) regulating the provision of communication assistance to defendants and witnesses. 
Definitions: child complainant, self-incrimination, sexual case, video record, witness, s 4. 

evidence code and commentary 

evidence code and commentary

s 129 EVIDENCE
129 Transitional provisions 
The transitional provisions in Schedule 1 have effect on the commencement of this Code. 
130 Repeals 
The enactments specified in Schedule 2 are repealed. 
SCHEDULE 1 
Transitional Provisions 
1 Notice of hearsay in criminal proceedings 
(1) The reference in subsection (1) of section 20 to giving notice of a proposal to offer a hearsay statement as evidence a sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in that subsection before the commencement of that section. 
(2) The reference in subsection (2) of section 20 to giving a notice of objection as soon as practicable is taken to include a reference to giving notice of the kind referred to in that subsection before the commencement of that section. 
2 Admissibility, notice and disclosure of expert evidence 
The reference in subsection (2) of section 25 to giving a notice under subsection (1) of that section in sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in subsection (2) before the commencement of that section. 
3 Evidence of co-defendants' truthfulness 
The reference in subsection (3) of section 41 to giving a notice under subsection (2) of that section in sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in subsection (3) before the commencement of that section. 
Schedule 1 continues overleaf 

evidence code and commentary 
SCHEDULE 1 
Transitional Provisions 
C441 By virtue of s 5(3), the Code applies to all hearings commenced on or after the date of commencement of the Code. The transitional provisions enable parties, ahead of the Code's date of commencement, to give any notices and to make any applications the Code requires. Such notices or applications will be treated as if they were made under the relevant sections of the Code. This means parties do not have to wait until the Code starts to operate before taking any procedural steps that are preconditions to getting certain types of evidence admitted at hearings to which the Code applies. 
C442 Section 5 expressly excludes the operation of ss 47 and 48 in relation to identifications made before the day the Code starts to operate. 
evidence code and commentary

sch 1 EVIDENCE
4 Propensity evidence about co-defendants 
The reference in subsection (3) of section 44 to giving a notice under subsection (2) of that section in sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in subsection (3) before the commencement of that section. 
5 Identifications already carried out 
Subpart 6 of Part 3 (identification evidence) does not apply in relation to an identification made before the commencement of that section. 
6 Support persons 
(1) The references in subsection (1) and (2) of section 80 to the application of a complainant or a witness are taken to include references to an application of the kind referred to in those subsections before the commencement of that section. 
(2) The reference in subsection (3) of section 80 to disclosing the name of each person who is to provide support to a complainant or witness under that section as soon as practicable is taken to include a reference to disclosing such a name before the commencement of that section. 
7 Restrictions on cross-examination by unrepresented parties 
The reference in subsection (2) of section 95 to the application of a witness is taken to include a reference to an application of the kind referred to in that subsection before the commencement of that section. 
8 Directions about way child complainants are to give evidence 
The reference in subsection (2) of section 102 to making an application for directions under subsection (1) of that section as early as practicable is taken to include a reference to making such an application before the commencement of that section. 
9 Directions about alternative ways of giving evidence 
The reference in subsection (2) of section 103 to making an application for directions under subsection (1) of that section as early as practicable is taken to include a reference to making such an application before the commencement of that section. 
Schedule 1 continues overleaf 

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evidence code and commentary

sch 1 EVIDENCE
10 Offering documents in evidence without calling a witness 
(1) The reference in subsection (4) of section 117 to giving notice of a proposal to offer a document without calling a witness to produce it a sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in that subsection before the commencement of that section. 
(2) The reference in subsection (5) of section 117 to giving a notice of objection to a proposal to offer a document without calling a witness to produce it a sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in that subsection before the commencement of that section. 
11 Summary of voluminous documents 
A party is taken, for the purpose of section 118(2), to have made a summary or chart available for examination and copying if the summary or chart was made so available before the commencement of that section. 
12 Translations and transcripts 
(1) The reference in subsection (1) of section 119 to giving notice of a proposal to offer a translation of a document in a language other than English a sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in that subsection before the commencement of that section. 
(2) The reference in subsection (3) of section 119 to giving notice of a proposal to offer a transcript of information or other matter a sufficient time before the hearing is taken to include a reference to giving notice of the kind referred to in that subsection before the commencement of that section. 

evidence code and commentary 

evidence code and commentary

sch 2 EVIDENCE
SCHEDULE 2 
Enactments Repealed
1908, No.56 _ The Evidence Act 1908. (R.S. Vol. 28, p 455) except for sections 13A to 13J, and 48 to 48J. 
1945, No.16 _ The Evidence Amendment Act 1945. (R.S. Vol. 28, p 493) 
1950, No.29 _ The Evidence Amendment Act 1950. (R.S. Vol. 28, p 496) 
1952, No.50 _ The Evidence Amendment Act 1952. (R.S. Vol. 28, p 497) 
1957, No.88 _ The Oaths and Declarations Act 1957: Section 13 (R.S. Vol. 28, p 821) 
1958, No.17 _ The Evidence Amendment Act 1958. (R.S. Vol. 28, p 501) 
1961, No.43 _ The Crimes Act 1961: Sections 344D and 369. (R.S. Vol. 1, p 635) 
1962, No.34 _ The Evidence Amendment Act 1962. (R.S. Vol. 28, p 502) 
1963, No.87 _ The Evidence Amendment Act 1963. (R.S. Vol. 28, p 503) 
1966, No.24 _ The Evidence Amendment Act 1966. (R.S. Vol. 28, p 503) 
1972, No.57 _ The Evidence Amendment Act 1972. (R.S. Vol. 28, p 503) 
1974, No.84 _ The Evidence Amendment Act 1974. (R.S. Vol. 28, p 504) 
1976, No.89 _ The Evidence Amendment Act 1976. (R.S. Vol. 28, p 504) 
1977, No.13 _ The Evidence Amendment Act 1977. (R.S. Vol. 28, p 504) 

evidence code and commentary 
1980, No.6 _ The Evidence Amendment Act 1980. (R.S. Vol. 28, p 505) 
1980, No.27 _ The Evidence Amendment Act (No. 2) 1980. (R.S. Vol. 28, p 505) except for sections 25 and 37 to 49 
1981, No.23 _ The Juries Act 1981: Section 28 
1982, No.48 _ The Evidence Amendment Act 1982. (R.S. Vol. 28, p 527) 
1985, No.54 _ The Evidence Amendment Act 1985. (R.S. Vol. 28, p 527) 
1985, No.161 _ The Evidence Amendment Act (No. 2) 1982. (R.S. Vol. 28, p 527) 
1986, No.74 _ The Evidence Amendment Act 1986. (R.S. Vol. 28, p 528) 
1986, No.87 _ The Evidence Amendment Act (No. 2) 1986. (R.S. Vol. 28, p 529) 
1987, No.138 _ The Evidence Amendment Act 1987. (R.S. Vol. 28, p 529) 
1988, No.116 _ The Evidence Amendment Act 1988. (R.S. Vol. 28, p 530) 
1988, No.222 _ The Evidence Amendment Act (No. 2) 1988. (R.S. Vol. 28, p 530) 
1989, No.104 _ The Evidence Amendment Act 1989. (R.S. Vol. 28, p 530) 
1990, No.46 _ The Evidence Amendment Act 1990. (R.S. Vol. 28, p 532) except for section 10A. 
evidence code and commentary

evidence code and commentary 
Other Law Commission publications: 
Report series 
nzlc r1 Imperial Legislation in Force in New Zealand (1987) 
nzlc r2 Annual Reports for the years ended 31 March 1986 and 31 March 1987 (1987) 
nzlc r3 The Accident Compensation Scheme (Interim Report on Aspects of Funding) (1987) 
nzlc r4 Personal Injury: Prevention and Recovery (Report on the Accident Compensation Scheme) (1988) 
nzlc r5 Annual Report 1988 (1988) 
nzlc r6 Limitation Defences in Civil Proceedings (1988) 
nzlc r7 The Structure of the Courts (1989) 
nzlc r8 A Personal Property Securities Act for New Zealand (1989) 
nzlc r9 Company Law: Reform and Restatement (1989) 
nzlc r10 Annual Report 1989 (1989) 
nzlc r11 Legislation and its Interpretation: Statutory Publications Bill (1989) 
nzlc r12 First Report on Emergencies: Use of the Armed Forces (1990) 
nzlc r13 Intellectual Property: The Context for Reform (1990) 
nzlc r14 Criminal Procedure: Part One: Disclosure and Committal (1990) 
nzlc r15 Annual Report 1990 (1990) 
nzlc r16 Company Law Reform: Transition and Revision (1990) 
nzlc r17(S) A New Interpretation Act: To Avoid "Prolixity and Tautology" (1990) (and Summary Version) 
nzlc r18 Aspects of Damages: Employment Contracts and the Rule in Addis v Gramophone Co (1991) 
nzlc r19 Aspects of Damages: The Rules in Bain v Fothergill and Joyner v Weeks (1991) 
nzlc r20 Arbitration (1991) 
nzlc r21 Annual Report 1991 (1991) 
nzlc r22 Final Report on Emergencies (1991) 
nzlc r23 The United Nations Convention on Contracts for the International Sale of Goods: New Zealand's Proposed Acceptance (1992) 
nzlc r24 Report for the period l April 1991 to 30 June 1992 (1992) 
nzlc r25 Contract Statutes Review (1993) 
nzlc r26 Report for the year ended 30 June 1993 (1993) 
nzlc r27 The Format of Legislation (1993) 
nzlc r28 Aspects of Damages: The Award of Interest on Money Claims (1994) 
nzlc r29 A New Property Law Act (1994) 
nzlc r30 Community Safety: Mental Health and Criminal Justice Issues (1994) 
nzlc r31 Police Questioning (1994) 
nzlc r32 Annual Report 1994 (1994) 
nzlc r33 Annual Report 1995 (1995) 
nzlc r34 A New Zealand Guide to International Law and its Sources (1996) 
nzlc r35 Legislation Manual: Structure and Style (1996) 
nzlc r36 Annual Report 1996 (1996) 
nzlc r37 Crown Liability and Judicial Immunity: A response to Baigent's case and Harvey v Derrick (1997) 
nzlc r38 Succession Law: Homicidal Heirs (1997) 
nzlc r39 Succession Law: A Succession (Adjustment) Act (1997) 
nzlc r40 Review of the Official Information Act 1982 (1997) 
evidence code and commentary

nzlc r41 Succession Law: A Succession (Wills) Act (1997) 
nzlc r42 Evidence Law: Witness Anonymity (1997) 
nzlc r43 Annual Report 1997 (1997) 
nzlc r44 Habeas Corpus: Procedure (1997) 
nzlc r45 The Treaty Making Process: Reform and the Role of Parliament (1997) 
nzlc r46 Some Insurance Law Problems (1998) 
nzlc r47 Apportionment of Civil Liability (1998) 
nzlc r48 Annual Report 1998 (1998) 
nzlc r49 Compensating the Wrongly Convicted (1998) 
nzlc r50 Electronic Commerce Part One: A Guide for the Legal and Business Community (1998) 
nzlc r51 Dishonestly Procuring Valuable Benefits (1998) 
nzlc r52 Cross-Border Insolvency: Should New Zealand adopt the 
uncitral Model Law on Cross-Border Insolvency? (1999) 
nzlc r53 Justice: The Experiences of Mäori Women : Te Tikanga o te Ture: 
Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei 
nzlc r54 Computer Misuse (1999) 
Study Paper series 
nzlc sp1 Women's Access to Legal Services 
Preliminary Paper series 
nzlc pp1 Legislation and its Interpretation: The Acts Interpretation Act 1924 and Related Legislation (discussion paper and questionnaire) (1987) 
nzlc pp2 The Accident Compensation Scheme (discussion paper) (1987) 
nzlc pp3 The Limitation Act 1950 (discussion paper) (1987) 
nzlc pp4 The Structure of the Courts (discussion paper) (1987) 
nzlc pp5 Company Law (discussion paper) (1987) 
nzlc pp6 Reform of Personal Property Security Law (report by Prof J H Farrar and M A O'Regan) (1988) 
nzlc pp7 Arbitration (discussion paper) (1988) 
nzlc pp8 Legislation and its Interpretation (discussion and seminar papers) (1988) 
nzlc pp9 The Treaty of Waitangi and Mäori Fisheries _ Mataitai: Nga Tikanga Mäori me te Tiriti o Waitangi (background paper) (1989) 
nzlc pp10 Hearsay Evidence (options paper) (1989) 
nzlc pp11 "Unfair" Contracts (discussion paper) (1990) 
nzlc pp12 The Prosecution of Offences (issues paper) (1990) 
nzlc pp13 Evidence Law: Principles for Reform (discussion paper) (1991) 
nzlc pp14 Evidence Law: Codification (discussion paper) (1991) 
nzlc pp15 Evidence Law: Hearsay (discussion paper) (1991) 
nzlc pp16 The Property Law Act 1952 (discussion paper) (1991) 
nzlc pp17 Aspects of Damages: Interest on Debt and Damages (discussion paper) (1991) 
nzlc pp18 Evidence Law: Expert Evidence and Opinion Evidence (discussion paper) (1991) 
nzlc pp19 Apportionment of Civil Liability (discussion paper) (1992) 

evidence code and commentary 
nzlc pp20 Tenure and Estates in Land (discussion paper) (1992) 
nzlc pp21 Criminal Evidence: Police Questioning (discussion paper) (1992) 
nzlc pp22 Evidence Law: Documentary Evidence and Judicial Notice (discussion paper) (1994) 
nzlc pp23 Evidence Law: Privilege (discussion paper) (1994) 
nzlc pp24 Succession Law: Testamentary Claims (discussion paper) (1996) 
nzlc pp25 The Privilege Against Self-Incrimination (discussion paper) (1996) 
nzlc pp26 The Evidence of Children and Other Vulnerable Witnesses (discussion paper) (1996) 
nzlc pp27 Evidence Law: Character and Credibility (discussion paper) (1997) 
nzlc pp28 Criminal Prosecution (discussion paper) (1997) 
nzlc pp29 Witness Anonymity (discussion paper) (1997) 
nzlc pp30 Repeal of the Contracts Enforcement Act 1956 (discussion paper) (1997) 
nzlc pp31 Compensation for Wrongful Conviction or Prosecution 
(discussion paper) (1998) 
nzlc pp32 Juries in Criminal Trials: Part One (discussion paper) (1998) 
nzlc pp33 Defaming Politicians: A Response to Lange v Atkinson
(discussion paper) (1998) 
nzlc pp34 Retirement Villages (discussion paper) (1998) 
nzlc pp35 Shared Ownership of Land (discussion paper) (1999) 
nzlc pp36 Coroners: A Review (discussion paper) (1999)
evidence code and commentary
Evidence Miscellaneous Paper 13

Total Recall? The Reliability of Witness Testimony
1. Introduction
1	The testimony of witnesses about events and the people
	involved in them, or, more accurately, their recollection of those events, is central to the functioning of criminal and civil proceedings. Potential witnesses may be required to identify suspects, and describe events to the police or their lawyers. In court, witnesses are asked to give evidence about events which may constitute a criminal offence, or may form part of a series of events concerning a civil dispute. Judges and juries must then assess the reliability of witnesses’ evidence.
2	We are not well-informed about the nature of memory and the circumstances in which memories may be reliable or unreliable. Research demonstrates that commonly held perceptions about how our minds work, and how well we remember, are often wrong. For example, a recent study of 116 graduate students in the United States found that 64 percent agreed that once an event is experienced, information about it is permanently stored in the brain (Garry, Brown and DuBreuil, 1997). Similar results were obtained in an unpublished national study using a much broader base (1044 people) (Brown, 1998). Studies conducted in Australia, the USA (for example, Loftus, 1979/1996:177), Canada and the UK (for example, Noon and Hollin, 1987) on general knowledge about factors influencing the reliability of eyewitness testimony demonstrated the limited knowledge of the general public, the police (in the UK study) and psychology and law students (in the Australian study).1 Studies also show that the judiciary and jurors believe children have poorer memory than adults, are highly suggestible and susceptible to the influence of others, and prone to fantasy (see, Cashmore and Bussey, 1996; Schmidt and Brigham, 1996). Psychological literature presents a different, more complex picture.
3	Broadly, the aim of publishing this paper is an educational one: to counter incorrect perceptions and stereotypes about the reliability of memory; and to provide an aid to judges, lawyers and other trial participants about the nature of human memory. It is intended to assist judges in formulating directions to juries, but it is not intended to replace expert evidence in a trial, or judicial directions in a particular case. In fact, a central theme of this paper is that, because of the complexity of memory processes, each case and the reliability of a person’s recall must be assessed on an individual basis. 
4	As the Law Commission publishes this paper we also release our final report on the law of evidence, which recommends a comprehensive Evidence Code for New Zealand. These recommendations take into account scientific knowledge about the functioning of human memory, particularly in relation to eyewitness identification, children’s evidence and memories of traumatic childhood events. This paper is intended as a companion guide to the Evidence Code, to enable those considering and applying the Code to better understand the scientific knowledge on which the Code provisions are based.
5	Apart from this introductory chapter, the paper is divided into four sections. Chapter 2 is a description of the generally accepted theory of the three stages of our memory processes – acquisition, storage and recall – and the factors which may affect the reliability of memory. Just as important as an individual’s ability to remember events accurately are the techniques used to elicit the narrative retelling of events. A description of the different types of long term memory is also included. This is essential to understanding the reliability of our memories for autobiographical events and how they may be altered over time. The chapter concludes with an outline of the theory of source monitoring, which describes the attribution of memories to their correct source.
6	The remaining chapters focus on three difficult and at times controversial areas relating to memory and reliability: 
•	eyewitness identification, 
•	children’s memories (especially those of young children), and
•	adults’ memories of traumatic childhood events such as sexual abuse (including discussion of “recovered” memories and “false memory syndrome”). 
Each chapter summarises the findings of the most up-to-date psychological research in the area and identifies gaps in current knowledge and where further research is required.
7	There is a vast amount of research literature, experimental studies, and archival and survey studies on these subjects. We have relied on summaries by expert psychologists and consulted with expert New Zealand psychologists. We occasionally refer to meta-analytical reviews, particularly in chapter 3 (eyewitness identification). Meta-analysis uses quantitative techniques to develop an integrative review of empirical research. Traditional reviews on the other hand use qualitative techniques. Since the 1970s, meta-analyses have grown in sophistication and acceptance. They allow reviewers to assess variability in research findings and to determine whether further research is necessary in order to account for such variability.2 For more in-depth knowledge about psychological studies in the areas covered by this paper readers should, as a starting point, see the texts listed in the bibliography. Cutler and Penrod’s Mistaken Identification: The Eyewitness, Psychology, and the Law (Chapter 4) contains a useful description of scientific psychological research methods, their advantages and limitations, and a glossary of terms used in experimental literature.
8	Psychological research, whether it is conducted in a controlled laboratory setting or a more realistic field setting, has its limitations. Field research is limited by the lack of control over the environment, while ethical restraints and other issues may limit laboratory research. Further, most experiments treat the eyewitness as a bystander, whereas an unaffected bystander is a rather rare occurrence in forensic contexts (Kapardis, 1997:28). Researchers also conduct archival studies of eyewitness experiences, often based on police records. These studies have the benefit of analysing real life data but are limited by factors such as possible discrepancies in recording information and a non-uniform approach: for example, in the conduct of identification procedures. 
9	There is on-going debate among psychologists about the external or “ecological” validity of experimental research, particularly that based in laboratories. Another factor to be considered is that research reports statistical information regarding the group being studied. Individual differences exist within the group and an individual may not be typical of the group. The applicability of the findings of experimental research to the real world must be assessed with caution, and in light of other research.
10	There are no simple or straightforward answers to questions about the reliability of witness testimony. While much of the research in relation to eyewitness testimony, children’s evidence and adults’ memories of traumatic events has focused on the limitations of memory, there is a danger of exaggerating that scepticism. As Lindsay and Read (1994:293) put it: “It is important not to exaggerate the fallibility of human memory. Memory is often wonderfully detailed and accurate.”
2. Memory theory
Introduction
11	Memories are not permanently stored as if recorded on
	tape, unaltered, to be played back some time later as an exact recording of the event. Nor are memories always completely accurate. It is generally agreed by psychologists that memory is both a reconstructive and reproductive process. So, memory depends in part on knowledge and in part on other sources of information additional to what is recorded when an event is first experienced. It is an active rather than a passive process. In contrast, the legal/adversarial approach often makes such erroneous assumptions:
A witness is often asked to play the role of a kind of tape recorder on whose tape the events of the crime have left an impression. The prosecutor probes for stored facts and scenes and tries to establish that the witness’s recording equipment was and still is in perfect running order. The defence cross-examines the witness to show that there are defects in the recorder and gaps in the tape. Both sides and the witness too, succumb to the fallacy that everything was recorded and can be played back later through questioning.
Neither perception nor memory is a copying process. Perception and memory are decision-making processes affected by the totality of a person’s abilities, motives and beliefs, by the environment and by the way his recollection is eventually tested. The observer is an active rather than a passive perceiver and recorder; he reaches conclusions on what he has seen by evaluating fragments of information and reconstructing them. (Buckhout, 1974:23–24)
The Three stages of memory 
12	Many theories present memory as involving three stages: acquisition, storage and recall. Processes involved with each stage influence how accurately and completely any witnessed event will later be recalled. The first stage is acquisition, when information is encoded in memory. This involves transferring the information from “short-term” (working memory which holds information for a few seconds) to “long-term” (more permanent) memory (Gudjonsson, 1992:83). Processes relating to perception, attention and understanding, including the stress or shock of an event or a person’s expectations of what will happen, may influence what information is encoded in memory and how well is it encoded.
13	Second is the retention stage, the period of time that passes between an event and the eventual recollection of a particular piece of information. Once information enters memory, it may reside there for a period of time before the witness attempts to retrieve it. Psychological research indicates that stored information is malleable and subject to change and distortion during this retention stage. Memories may change simply as a function of time, particularly following very long delays. Also, the relationship between memory and the retention interval is a “negatively decelerating” one. This means memory retention drops off rapidly at first and then the decay is much more gradual (Loftus, 1979/1996:222). Memories may also change as a result of similar intervening experiences, rehearsal of the event (for instance, thinking and talking about it), and exposure to other information about the event. Many factors which affect encoding also affect the retention stage.
14	Third is the retrieval stage, during which a person recalls the information about the event. Recall is influenced by the cues available to retrieve the memory; for example, as provided by questions, or physical cues such as photographs or a reinstatement of the original context of the event. Recall is also affected by the social context in which the person is asked to recall the information. Forgetting, that is, failure to retrieve information from our memory, may indicate: 
•	failure to store information correctly;
•	displacement of information; 
•	the memory trace has faded away or decayed with the passage of time;
•	interference from later input which sounded similar and impacted negatively on the short-term memory or information which is semantically similar and interfered with information stored in the long-term memory; 
•	lack of appropriate retrieval cues. 
Some psychologists hypothesise that some forgetting, for example of traumatic events, may be caused by mechanisms other than those related to ordinary forgetting. This is particularly relevant to the debate concerning “recovered” memories, see chapter 5. Retention and retrieval stages recur with each instance of recall or reporting.
15	Therefore, the accuracy and comprehensiveness of any person’s recall, depends on factors such as the personal significance of the event, the emotive content of the event, the time lapsed since the event, the occurrence of other related events, why and by whom the person is asked to recall their memories, and the kinds of retrieval cues provided at the time of recall. The fundamental question of whether forgetting is the result of actual loss of information stored, or whether it is the loss of access to that information (which remains stored forever), or whether it is the result of both, may be unanswerable (see also para 57).
Types of memory
16	As mentioned in para 12 there is a well-established distinction between short-term memory (sometimes called working memory) and long-term memory. There is growing evidence of an intermediary phase which may last months or even years before the memory is fully consolidated into long-term storage. 
17	Psychologists now distinguish between different types of memory. This is best understood “as reflecting the different processes that can be used to access a common memory trace” (Squire et al, 1993:482, cited in Kapardis, 1997:25). However, it should be noted that some memories may not be neatly pigeonholed into a single category. The following are terms which are commonly used by psychologists, and are used occasionally in this paper, for different types of long term memory. Some types of long-term memory may be more vulnerable to change than others.
18	Implicit memory is memory which operates at an unconscious level. It is sometimes known as non-declarative memory and is seen operating in habits, skills, emotions and reflexive actions. The memory is not available for conscious verbal recall but may impact on a person’s behaviour. Somatosensory memory, a type of implicit memory, refers to physical sensations and reactions. We may have physiological reactions to situations and people, without necessarily being able to consciously recall or reflect on their origins.
19	Explicit (or recollective) memory is memory which is accessible to the consciousness; it is sometimes also known as declarative memory. These memories may be recalled verbally. Theorists argue that the distinction between implicit and explicit memory is merely one of the strength of available cues, however, there is evidence that these memories depend on two different neural systems and each have different properties. 
20	Many theorists have also distinguished two kinds of explicit memory: semantic memory and episodic memory. Semantic memory refers to our general knowledge of the world, of the sort that may be recorded in an encyclopaedia or a dictionary. Episodic memory refers to the memory for events that involve the individual, of the sort that may be recorded in a personal diary, that happen at a specific time in a particular place. These are the most fragile of memories and are probably not fully formed until a child has developed a concept of self and the necessary cognitive skills.
21	Autobiographical memory system refers to the system by which we organise the episodic memories that make up our personal histories. They are significant memories that are related to our concept of ourselves in some way. This system is dependent on the development of cognitive skills, particularly language. Even in adulthood our autobiographical memory is likely to be patchy and subject to distortions, the more so the more distant the memory.
Source Monitoring
22	Source monitoring refers to the set of processes involved in making attributions about the origins of memories, knowledge and belief (Johnson, Hastroudi and Lindsay, 1993:3). Source monitoring theory is relevant to all the issues discussed in this paper because the accuracy of any memory crucially depends on being able to attribute it to its correct source. In a 1993 review, Johnson, Hastroudi and Lindsay developed a source monitoring theory that suggests that there are at least three important types of source monitoring: reality monitoring, external source monitoring and internal source monitoring. 
23	Reality monitoring involves discriminating memories of internally generated information from memories of externally derived information, for example, distinguishing memories of thoughts and imaginations from memories of perceived events. External source monitoring refers to discriminating between externally derived sources, for example, statements made by A from statements made by B. Internal source monitoring refers to discriminating between internally generated sources, for example, discriminating memories of what one thought from memories of what one said.
24	According to Johnston et al, two processes are involved in each type of source monitoring. The first is a relatively automatic evaluation of characteristics of the memory such as perceptual information, context in space and time, semantic detail, emotional characteristics and cognitive operations that were established when the memory was formed. The second is a more reflective process and involves retrieval of supporting memories, noting or discovering relations and reasoning (eg asking yourself “does this seem like a real memory, given other things I know?”). Each process can provide a check on the other. After reflective reasoning, a memory with a lot of sensory detail may be rejected as a memory of an actual event on the basis of implausibility. Similarly, lack of sensory detail may challenge the reality of recollections that would otherwise be readily accepted because they fitted with one’s general knowledge and beliefs. 
25	Source monitoring is not an absolute concept. You may remember that you were told about an event rather than experienced it but not remember who told you or where. Source monitoring depends on the quality of the information initially encoded, the uniqueness of the characteristics associated with given sources (the more similar the memory characteristics from two or more sources, the more difficult it will be to specify the source correctly) and the quality of the decision processes when source monitoring judgments are made. 
3. Eyewitness identification
Introduction
26	The identity of the person who has committed an offence
	is often disputed in a criminal trial. In such circumstances, it may be difficult to judge whether an eyewitness’s evidence is reliable. Like all mental processes, the process of identification, in which a witness compares a remembered image with a person physically before them, or an image of a person, is a complex and dynamic one.
27	Eyewitness identification can be flawed simply because of the processes of memory that occur whenever human beings acquire, retain, or attempt to recall information. Eyewitness identification can be further influenced by the investigative procedures used by the police to gain descriptive information about an offender, or by the identification procedures used once they have a suspect. In other words, eyewitness error is likely to be the product of both inherent human cognitive limitations and the methods used to obtain information from eyewitnesses (Wells et al, 1994:241).
28	Over the years much concern has been expressed about the accuracy of eyewitness testimony. A study of post-1900 wrongful convictions in the USA indicated that eyewitness misidentification was a factor in 52 percent of the cases (Rattner, 1988:291). Unsatisfactory identification was also found to be a significant factor in wrongful convictions in an English study covering the years 1950 to 1970 (Brandon and Davies, 1973, cited in Rattner, 1988:285). 
29	Hundreds of experimental studies have been conducted on varying aspects of eyewitness identification (Cutler and Penrod, 
1995:67–69; Kapardis, 1997:21). Many of these studies raise legitimate concerns about the reliability of eye witness identification. However, some caution is needed in generalising about the reliability of eyewitness evidence based on the results of psychological research. It is always important to consider the soundness of particular research, its ecological validity and its applicability to the facts of the case. It is also important not to exaggerate the practical importance of psychological studies in the context of the criminal justice system (Kapardis, 1997:23). Police in New Zealand estimate that identification issues arise in about 20–24 percent of cases. After pre-trial conferences and guilty pleas just 5–10 percent of these cases result in defended hearings.3 Judges are also aware of the danger of relying on identification evidence, and jury trials form only a small proportion of all criminal proceedings.
event perception 
30	The process of identification begins when a witness sees another person in circumstances which suggest that an offence may have been committed. The witness may not have seen the person actually committing the offence; for example, the witness may only observe a person covered in blood or driving away from a robbery scene, not the actual robbery. Numerous factors will affect the accuracy of the initial perception. Some of these factors are inherent in the event itself, such as the distance between the offender and the witness. Other factors, such as whether the witness has poor eyesight, or how the stress of seeing the offence affected the witness, are inherent in the witness. Others relate to the characteristics of the offender, such as the use of a disguise.
31	Psychologists have analysed the effect of various factors in order to determine to what extent they may be used to predict eyewitness accuracy. Divisions between witness or event or offender factors are not absolute (eg, the type of event, such as an armed robbery, is closely related to a witness’s level of physiological arousal or stress). While these factors have primarily been analysed in relation to the encoding of an event in a witness’s memory, they may also be relevant to retention, later recall of the event and recognition of an offender.4 For example, a person’s age is relevant to performance at all stages of the memory process, whereas the light available during a witnessed event will impact primarily on the encoding of the memory for that event.
Event factors
32	Many factors relating to the event itself are obvious and their effect on identification is widely understood. They include: 
•	the duration of the sighting;
•	the number of times the subject was seen by the witness; 
•	the position of the witness relative to the subject; 
•	whether any objects obscured that view;
•	available light; and
•	the complexity of the event witnessed. 
As Cutler and Penrod comment (1995:101), common sense tells us that the amount of time available for viewing a perpetrator is positively associated with the witness’s ability to make a later identification, and this conclusion is supported by the psychological literature (Kapardis, 1997:37). 
33	It has been hypothesised that the seriousness of the crime will have an effect on the ability of eyewitnesses to make accurate identifications. However, the few studies on this topic have methodological problems, and have encountered ethical limitations on the types of experiments which can be undertaken. Related studies have examined the anxiety and stress inherent in an event. Anxiety and stress may have an effect on the quality of the witness’s perception, although the precise impact is often difficult to assess. Experimental studies have reported that a high level of stress impacts adversely on memory accuracy, however other researchers, using real life events, found that contrary to what the experimental literature predicts, a high level of stress is good for memory (Christianson, 1992:286; Kapardis, 1997:41). 
34	To some extent the conflicts in findings can be explained by differences in methodology; for example, some studies measure inaccuracy in terms of errors of omission, while others are concerned with memory decline over time and errors of commission (Kapardis, 1997:42–43). There is no doubt that subjects in simulation studies are unlikely to experience the same degree of emotional arousal, stress and trauma experienced by real-life witnesses, whether as bystanders or victims (Kapardis, 1997:39). Studies which have attempted to surmount ethical limitations on experimental research, usually through the use of violent and non-violent videotapes of crimes, have resulted in a range of different findings. This indicates that there is no simple relation between stress and the accuracy or amount of information recalled. A recent laboratory study, for instance, found that participants who witnessed a negative emotional event (a violent film) recalled less information prior to and following the event than the group of participants who witnessed a comparable neutral event, but they recalled more information about the critical event itself. Repeated testing increased the amount recalled about either event; and repeated testing enhanced recall equally for both groups of participants (Bornstein, Liebel and Scarberry, 1998:129).
35	Another limitation on research is that most of the studies in fact examine the influence of arousal on eyewitness recall rather than on eyewitness identification of an offender (Cutler and Penrod, 1995:104). In any event, it is likely that arousal is not a single construct and various forms of arousal may differently influence eyewitness memory (Christianson, 1992, cited by Cutler and Penrod, 1995:105, and Kapardis, 1997:40).
36	One aspect relating to the seriousness of a crime is the presence of a weapon. It is hypothesised that a witness’s attention becomes fixated on the weapon used in an offence and, since the witness’s attention is diverted from details relevant to identification, identification accuracy declines. This is known as the “weapon focus” hypothesis. Steblay’s meta-analysis5 (1992) of 19 studies of “weapon focus”, found that the presence of a weapon had a small but statistically significant effect on eyewitness performance. The effect is greater when the weapon is visible, compared to situations where the weapon is concealed but the witness is aware of its presence (see Cutler and Penrod, 1995:102). 
37	Tollestrup, Turtle and Yuille found in their 1994 archival study that eyewitnesses and victims of robberies provided more detailed descriptions in crimes involving a weapon than those involved in a crime with no weapon; further, victims provided more detail than eyewitnesses (156). In terms of accuracy of description, they found no significant effects in relation to the presence of a weapon or whether the witness was a bystander or victim (157). The authors concluded that the presence of a weapon has complex effects and does not appear to have a detrimental influence on the amount or accuracy of descriptive information provided by actual eyewitnesses. However, the presence of a weapon negatively affects subsequent recognition of the person holding the weapon (158). This fits with what the experimental literature predicts.
Witness factors
38	Witness factors are divided into stable and malleable characteristics. Stable witness characteristics include the witness’s age, gender, race, intelligence, face recognition skills, and personality characteristics. Malleable characteristics are characteristics which are subject to change, such as the eyewitness’s state of intoxication or what the witness is thinking at the time of the crime. An example of the latter is the expectation of bank tellers, during a robbery, that they will later be asked to identify the offender.
39	Age is the only stable witness characteristic that studies indicate has an effect on eyewitness identification accuracy (Cutler and Penrod, 1995:84–85). Some studies show that elderly eyewitnesses (usually 60 years old or older) do not perform as well on identification tests as younger adults (Adams-Price, 1991; Bartlett and Fulton, 1991; O’Rourke, Penrod, Cutler and Stuve, 1989, cited by Cutler and Penrod, 1995:83). Others find no recognition differences between adult and elderly populations (Smith and Winograd, 1978; Yarmey and Kent, 1980, cited by Cutler and Penrod, 1995:83) Nevertheless, after discussing these studies, Cutler and Penrod felt able to conclude that elderly subjects had been shown to perform more poorly in making accurate identifications than other adults. Children are significantly more likely than adults to make an inaccurate identification when the target is not present in a photograph lineup or showup. However, they are as accurate as adults when the target is present. (Gross and Hayne, 1996; Lindsay et al, 1997). This suggests that the inaccuracy is due to the child’s social need to perform well at the task set rather than any inaccuracy in memory. See further chapter 4.
40	Other stable witness factors may possibly affect the reliability of identifications but their effect is not so easily recognised or measured. Gender studies have reported mixed results when a witness’s gender is independently considered. However, there have been some interesting studies suggesting that witnesses will more easily identify someone of the same gender than someone of a different gender (Kapardis, 1997:57, citing Jalbert and Getting, 1992; Shapiro and Penrod, 1986; although noting that this evidence is contradicted by Cross et al, 1971; see also Cutler and Penrod, 1995:104). This effect has also been demonstrated in relation to differences in ethnicity or race between the witness and the offender (Shepherd and Deregowski, unpublished manuscript; Cutler and Penrod, 1995:104). However, it is probably premature to draw any firm conclusions based on these studies.
41	Cutler and Penrod (1995:84–85) also conclude that face recognition skills (as measured by prior performance of the witness rather than self-reporting), and the verbal ability of eyewitnesses, appear to be promising predictors of identification accuracy and warrant further research. 
42	Cutler and Penrod’s meta-analysis found mixed results as to whether malleable witness characteristics, such as training in face recognition, are good predictors of witness accuracy (1995:89). Police officers, due to their training, are generally believed to be more accurate witnesses than civilians. However, studies on this topic found conflicting results. Some reported that better recall is associated with the length of service with the police, while others do not support the view that police are more vigilant in perceiving offences and suspicious circumstances. A recent Swedish study shows a higher level of accuracy for police officers, compared to civilians, in remembering some crime-relevant information, particularly the characteristics of the perpetrator’s appearance. However, the officers’ performance on memory questions relating to the victim, bystanders and objects at the scene of the staged criminal event, were not significantly different from that of the civilians (Lindholm, Christianson and Karlsson, 1997:441). 
43	Moderate quantities of alcohol impair the process of forming new memories, while short-term memory and retrieval are unaffected (Loftus, 1980, cited by Gudjonsson, 1992:95). Two studies have examined the effects of alcohol on eyewitness performance (Yuille and Tollestrup, 1990; and Read, Yuille and Tollestrup, 1992; cited in Cutler and Penrod, 1995:88–89). The results of the 1990 study gave strong support for the hypothesis that even a mild level of intoxication significantly impairs memory, and also interferes with the acquisition and encoding of the observed event rather than with retrieval. The 1992 study examined the effect of intoxication and arousal on memory performance. This experiment was rather unusual in that the subjects played the role of thieves in a simulated robbery, and the level of arousal was manipulated by varying subjects’ perceptions of how likely they were to be caught by a bystander. Results suggested that high levels of arousal may overcome the debilitating effects of alcohol. It is difficult to draw conclusions about the effect of alcohol given the limited number of studies (Cutler and Penrod, 1995:89–90).
44	Whether a witness is also the victim of the crime is another factor to consider. Again, studies have reported conflicting findings in this area. A study which reported that bystanders gave less information both about appearance and events may be attributable to the fact that victim-witnesses may be asked more questions by the police (Kapardis, 1997:61, describing the study by MacLeod, 1987).
Offender factors
45	Stable offender characteristics, such as an offender’s gender or race, are not good predictors of eyewitness accuracy. On the other hand, the distinctiveness6 of an offender has been shown to be a good predictor (Cutler and Penrod, 1995:97–98). Few studies have considered offender body height and size, and these may be fruitful areas of future research. Kapardis notes that researchers have perhaps neglected offender variables in their studies, and that more research is needed (1997:72–73).
46	The physical appearance of an offender can be malleable; it often changes between the crime and the identification. For example, the offender may change his or her hairstyle, or may have worn a cap, sunglasses or a disguise. Even a simple thing such as wearing a hat can conceal hairstyle, making a person harder to recognise. These and other changes can have a significant impact on the later identification process. Studies reviewed by Cutler and Penrod show that changes to a person’s appearance as a result of ageing, changes to facial hair, or disguises, have a reliable and significant detrimental effect on subsequent accurate recognition by witnesses (1995:100).
the impact of time
47	Many witnesses to a crime will be asked to describe the event and alleged offender, and to identify him or her, some time after the incident, whether minutes later, or days or many months. Common sense, and psychological research, tells us that memory declines over time. Does identification accuracy also decline as the time between the crime and the identification increases? 
48	It is well established that recall and recognition accuracy are at their best immediately after encoding the information, and that both decline at first rapidly and then gradually over time (Kapardis, 1997:74, citing Hunter, 1968; Thomson, 1984; and Shapiro and Penrod, 1986). Face recognition and person identification have been found to be more resistant to the effects of delay than 
recall (Kapardis, 1997:75, citing Deffenbacher, 1989; Ellis, 1984; Loftus, 1979; and Shepherd at al, 1982). However, longer delays increase the likelihood of post-event information interfering with the original memory and impacting on both accurate recall and recognition (see paras 55–65).
investigative procedures and interviewing eyewitnesses
49	Eyewitnesses may be asked to recall their memory of an event a number of times before actually identifying a person as the offender, usually as part of the initial police investigation to form a suspect profile. This may involve describing the event, or searching through police mugshots, or even, in some rare cases, undergoing forensic hypnosis. Psychologists have studied aspects of these investigative procedures both in the real world, and in laboratory and field studies.
Interviewing techniques
50	Two interview techniques studied by psychologists are the cognitive interview (CI) and forensic hypnosis. The cognitive interview was developed largely by two American psychology professors, Fisher and Geiselman, utilising four principles derived from psychological literature about information retrieval. The principles are:
•	mentally reinstating the environmental and personal context that existed at the time of the original event;
•	reporting everything, however trivial;
•	recounting the event in a variety of orders; and
•	recounting the event from a variety of perspectives (Kapardis, 1997:86).
Available psychological research shows that the CI has a number of merits. For example, it results in a witness providing significantly more information than a typical police interview without an increase in the ratio of inaccurate to accurate information. However, the technique does have limitations. As the developers of the CI themselves acknowledge:
Research in developing the CI is still in its infancy. It has generally been found successful as a memory enhancer, but only in a limited number of conditions. … More research needs to be done to refine the procedure and to expand and define its domain of effectiveness. (Fisher, McCauley and Geiselman, 1994:266)
In particular, there are some aspects of the CI that are not appropriate for use with children, especially young children. Nevertheless, with children over the age of 7 or 8, aspects of the CI can be used.
51	Forensic hypnosis is defined as “hypnotic techniques applied to information-gathering for evidential purposes” (Haward, 1990:60, cited by Kapardis, 1997:87). Hypnosis interviews were first used by American police, in the 1950s, to assist witnesses to remember, and by the 1970s detectives were being trained in hypnotic techniques. In the UK and Australia, hypnosis was usually conducted by psychiatrists and qualified psychologists, never police officers (Kapardis, 1997:87–88). This is also the position in New Zealand, where the practice of conducting forensic hypnotic interviews is rare.
52	There are a number of issues related to the use and effectiveness of forensic hypnosis, such as the consent of the witness, the subsequent admissibility of such evidence (in New Zealand see R v McFelin [1985] 2 NZLR 750 (CA)), and whether hypnosis can actually interfere with a witness’s memory of an event. McConkey’s view about the benefits of hypnosis reflects that generally held by psychologists:
there is no guarantee that any benefits (such as increased recall) will occur, and there is a likelihood that some costs (such as inaccurate recall, and inappropriate confidence) may be incurred when hypnosis is used to enhance memory . . . [and] . . . A similar conclusion comes from using hypnosis in the forensic setting. (1995:2) 
The literature on hypnosis is discussed in an authoritative 1998 review by Kirsch and Lynn.
Number of efforts made to recall
53	Usually witnesses are asked to recall details of an event more than once. Few studies have examined the effect of repeatedly recalling a memory of an event or person. There is evidence that having an eyewitness recall a memory several times can increase the sum of information reported overall, without a severe increase in errors (eg, Turtle and Yuille, 1994:268, cited in Kapardis, 1997:76).
54	Turtle and Yuille note that while repeated recall may produce more accurate information for the police investigation, any inconsistencies between successive accounts by the witness will be fuel for lawyers to discredit such a witness. This concern, they point out, will be counterbalanced by the fact that repeated recall will yield more facts about the case. Also, “a unified position on how [memory] is affected by multiple-retrieval attempts should make people aware that gaining and losing details on successive recall is typical of how memory works” (Turtle and Yuille, 1994:269, cited in Karpardis, 1997:77). See also Fisher and Cutler’s study which confirms that consistency of testimony in interviews is a poor predictor of identification accuracy (discussed in Cutler and Penrod, 1995:94).
The influence of post-event information
55	One of the principal causes of distortion of a witness’s memory is information relating to the observed event that is received subsequently: post-event information. Not only may eyewitnesses be interviewed more than once, but they may also be asked to look at mugshots, they may discuss the events with other witnesses or the police, the interviewer may include other misleading information when questioning the witness, and there may be media reports about the event.
56	During the past two decades researchers in eyewitness testimony have used the “misinformation” paradigm to study how and when information encountered after an event contaminates a witness’s memory and makes it unreliable (Kapardis, 1997:77). Experiments show that people take in information acquired during the retention interval and integrate it into their memories, either supplementing their memory or altering or adding to their memories. People are particularly susceptible to having their memories modified when the passage of time allows the original memory to fade, and will be most susceptible if they repeat the misinformation as fact (Loftus, 1979/1996:viii). Post-event information may come from different sources and even from different modalities: a witness may see events, and hear or read a piece of post-event information, then integrate it to produce something that is different from what was actually experienced (Loftus, 1979/1996:226). The effect of the post-event information will be influenced by the strength of the original memory.
57	There is theoretical debate among cognitive psychologists about what effect new information has on the original memory, that is, whether it erases or alters the original memory (integration theory), or creates a new memory which is more readily accessible than the original memory (co-existence theory). Integration theory claims post-event information replaces the original memory and becomes permanently integrated into the person’s memory of the event. Others argue that the original memory is not impaired or weakened and that it could be made accessible given the right retrieval environment. Recovery of the original memory is thus never impossible but is increasingly more difficult. It is argued that the misleading information is accepted by the person who fails to remember original critical details. (See generally Gudjonsson, 1992:91, and Kapardis, 1997:79) This debate is relevant to the issues concerning adults’ memories of traumatic childhood events, see chapter 5.
58	Irrespective of whether the original memory can be recalled, the distorted memory created by post-event information may significantly reduce the reliability of an eyewitness’s memory of an event and offender. Further, witnesses may strongly believe in their memories, even though aspects of those memories are verifiably false (see, for example, Weingardt, Toland and Loftus, 1994).
Mugshot searches
59	Eyewitnesses are sometimes asked to browse through mugshots of known criminals of a certain type to see if they recognise a crime perpetrator. Experiments indicate that witnesses are able to eliminate a very high proportion of innocent people as suspects and to reduce initially large pools of possible perpetrators to manageable numbers (Lindsay, Nosworthy, Marting, and Martynuck, 1994:122; cited in Kapardis, 1997:238). Clearly, this is very helpful to the police and indicates that mugshots are a useful investigative tool. While it will be clear to the witness that the photographs are of people with a police record, this cannot be prejudicial at the investigative stage.
60	However, problems may arise if the eyewitness is later asked to identify an offender. A number of studies (discussed in Cutler and Penrod, 1995:106–108) have focused on the possible influence of viewing mugshots prior to identifying an offender or suspect. Exposure to mugshots does not influence the accuracy of subsequent identifications if none of the people in the mock lineup were present in the mugshot arrays. However, several experiments have found that people appearing in mock lineups, who also appeared in the mugshots, may be identified as frequently as the actual target is identified. Brigham and Cairns found that prior exposure to mugshots interferes with later identification accuracy but that the errors depend on the decision at the mugshot stage. Subjects tend to remain committed to their earlier decisions. Interestingly, subjects who were asked to rate the mugshot photographs for attractiveness but not to identify anyone, performed only slightly less accurately at a later photograph array identification than subjects who were not exposed to the photographs. As the mugshot research is based on experimental settings that do not involve real criminals there is no indication as to the effect that the knowledge that a person who appeared in a mugshot must be a criminal will have if that person subsequently appears in a lineup. However, a witness who remembered that he or she had seen the suspect previously in the mugshot would not mistakenly make an identification based on mere familiarity or memory confusion. (The discussion of “unconscious transference” at paras 63–65 is relevant to this issue).
Leading or misleading questions
61	It is well established that the use of leading questions by the police when questioning a witness may impact on the accuracy of the witness’s memory. This practice can have the effect of altering the witness’s memory through the unconscious adoption, by the witness, of details referred to by the police (Woocher, 1977:985). For example, in a case where the witness’s memory of the offender is weak, if the witness is asked whether the offender had a beard, then the witness may incorporate an imaginary beard into his or her memory of the offender. Repeated questioning on details about which the witness is unsure may also cause problems, because once the witness comes to an incorrect conclusion, however tentative, subsequent questioning has the effect of reinforcing the error through repetition.
62	The impact of the misleading questions or suggestions depends on the length of time between the observed event, the witness being given the misleading information, and the identification of the suspect (eg, Loftus, 1979/1996; Hall, Loftus and Tousignant, 1984). Post-event information has the greatest effect when the misleading information is introduced before recall and a long time after acquisition. If the misleading information is an incidental part of a statement rather than the subject, it is more likely that the witness will store the information without scrutinising it for accuracy (Hall, Loftus and Tousignant, 1984; Shepherd, Ellis and Davies, 1982). Similar research has been conducted specifically examining the response of children to different types of questioning, see paras 124–128. Available research indicates that post-event contamination by police officers is more likely when a witness believes that the police know exactly what happened (Kapardis, 1997:79, citing Smith and Ellsworth, 1987). In addition, developmentally handicapped and mentally disordered witnesses are particularly vulnerable to the misinformation effect (Kapardis, 1997:80, citing Gudjonsson, 1995; Perlman et al, 1994).
Unconscious transference
63	Aside from factors present in the identification procedures described above, there may be other explanations for a mistaken identification in a lineup. “Unconscious transference” (UT) or “displacement” refers to a misidentification of an innocent person (“bystander”) who had been previously seen by the witness to the crime in a different context from the crime itself (Read, 1994:57). There have been several studies on unconscious transference (see, for example, Brown, Deffenbacher and Sturgill, 1977 and the other studies mentioned by Cutler and Penrod, 107). The source of the transference may be either post-event information, or memories which predate the event. An example is the frequently cited real life case in which 
[a] ticket agent at a rail road station who was held up at gunpoint subsequently recognised a sailor in a lineup as the culprit. The sailor had a strong alibi, however, and was eventually released from custody. The ticket agent, who was later interviewed in an attempt to determine why he had misidentified the sailor, said that when he saw the sailor in a lineup, his face looked familiar. It was learned the sailor’s base was near the rail road and on three occasions prior to the robbery he had purchased tickets from this agent. What had happened was that the ticket agent mistakenly assumed that the familiarity related back to the robbery when it undoubtedly related back to the three times when the sailor bought train tickets. (Re, 1984:512)
64	Ross et al (1994) identify three theoretical approaches to UT. The theory of automatic processing maintains that the witness is not aware of having seen the bystander previously, and that the witness selects the bystander on the basis of familiarity. The theory of source monitoring maintains that the witness remembers both the offender and the bystander separately, but confuses the two memories because of similarities between the memories. The theory of memory blending suggests that even though the witness remembers having encountered both the real offender and the bystander, the witness thinks they are the same person. 
65	Ross et al (1994) surveyed the previous literature on UT and concluded that the laboratory studies which comprised the bulk of the research in the area were convincing but lacking in ecological validity (85). Ross et al’s own experiments provided evidence for the existence of UT and the memory blending theory, however, the authors cautioned that laboratory studies do not capture the level of stress or personal involvement experienced by witnesses of real crimes (98). Experiments reported by Read also provided support for UT but suggested that the phenomenon was in fact due to a failure in source monitoring (Read, 1994).
Quality of eyewitness descriptions
66	Several studies have examined the extent to which the general quality of a witness’s description of the perpetrator at the time of the offence can be relied upon as an indicator of the accuracy of their identification. Pigott et al’s 1990 field study (discussed in Cutler and Penrod, 1995:93) examined the correlation between identification accuracy and three factors relating to the description: accuracy (the extent to which the description matched the person who committed the mock crime), completeness (the amount of detail in the description), and congruence (the extent to which the description matched the person identified in the lineup). This study found that the correlation was not significant; in other words, there was at most a very weak relationship between description quality and identification accuracy. This finding corroborates those of other earlier experimental studies.
67	More recently, Van Koppen and Lochun (1997) studied archival data (2229 descriptions by 1313 witnesses of 582 different robbers in the Netherlands) from official court records kept by prosecution offices.7 The authors examined how much information witnesses include in their descriptions, how accurate it is, what factors influence the completeness and accuracy of descriptions, and whether description accuracy can be predicted from description completeness. They found that the most frequently mentioned characteristic used to describe the suspect was sex, the second was the height of the suspect, and over half of the descriptions contained information about the age, appearance (including race), skin colour and type of head covering or disguise worn by the offender (670–671). Overall the completeness of the descriptions was rather poor (671–672). 
68	The researchers analysed the witness statements in terms of 21 descriptors of the suspect (eg, sex, type of hair, eye shape). Accuracy varied greatly. Sex was reported with perfect accuracy, hair colour descriptions were 73 percent accurate, and both age and appearance were correctly reported in about 60 percent of the descriptions. In contrast, facial hair was almost always incorrect, and both type of hair and type of speech were reported incorrectly in two-thirds of the descriptions in which they were reported (672). They also found that a shorter delay between the crime and the provision of the description, and a shorter distance between the witness and robber, were associated with more complete descriptions.
69	The authors concluded that their study confirmed the results commonly found in both laboratory and real-life studies: descriptions are usually vague and general; witnesses mostly describe general characteristics of the offenders, such as sex, race, height and age. In describing these characteristics witnesses are more often right than wrong (677). Further, their findings confirmed those mentioned above; that completeness of description does not seem to provide a useful tool which could be used by law enforcement agencies for judging the accuracy of a description. The results also suggest that the accuracy of offender descriptions cannot be predicted very reliably from the witness and situational factors measured (680), discussed above at paras 32–44.
70	These results are further supplemented by MacLeod, Frowley and Shepherd’s (1994:129–130) review of studies on memory for non-facial body features. Their review suggests that the witness’s own physical characteristics can affect judgments about the height and weight of others: in other words, they are used as “norms” or “anchors” against which relative judgments are made (1994:129).
Eyewitness confidence
71	It is typical for police investigators to ascertain an eyewitness’s confidence regarding his or her ability to make an identification, both during an interview and once a suspect is identified. Judges, lawyers and jurors also make assessments about the reliability of eyewitness evidence based on their perception of an eyewitness’s confidence. (Experiments confirm the commonly held expectation that a person’s observed confidence will reflect their subjective confidence: see Nolan and Markham, 1998:44). Studies have consistently found, for example, that jurors regard eyewitness confidence as a valid predictor of the accuracy of eyewitness testimony.
72	A substantial amount of research has been devoted to the association between a witness’s confidence and the accuracy of the identification. Cutler and Penrod (1989) meta-analysed nine studies and found confidence in one’s ability to make a correct identification was shown to be a poor predictor of identification accuracy (Cutler and Penrod, 1995:95). Bothwell, Deffenbacher, and Brigham (1987) produced a slightly different result when they meta-analysed 40 relevant studies. They found that witnesses who are highly confident in their identifications were only somewhat more likely to be correct compared to witnesses who displayed little confidence in their identifications (Cutler and Penrod, 1995:95).
73	Different explanations have been offered for these findings. For example, Bothwell et al concluded that their results may be over-estimates due to the fact that the confident identifications were more likely to have been obtained under optimal conditions of viewing, retention and recognition (cited in Nolan and Markham, 1998:44). Luus and Wells, in their review of eyewitness confidence studies, cautioned against assuming a reliable relationship between witnesses’ confidence about their identifications and their actual accuracy (1994:358–359). By contrast, Sporer et al’s (1995) meta-analysis has cast doubt on the findings of earlier reviews that the confidence-accuracy relationship in eyewitness research is a weak one (Kapardis, 1997:64).
74	Confidence is a complex construct that warrants a more sophisticated analysis than has been the case in much eyewitness research (Kapardis, 1997:66). Recent studies have examined the accuracy-confidence relationship in relation to other “moderator variables”, particularly different personality factors. There is some evidence that a witness’s subjective confidence judgment and the accuracy-confidence correlations may be affected by certain personality types (summarised by Nolan and Markham, 1998:45). For example, Nolan and Markham’s 1989 study investigated the role of anxiety at the time of witness questioning in moderating the relationship between accuracy and confidence in an eyewitness recall task. They suggest that “highly anxious” (HA) participants express lower confidence in the accuracy of their answers than “low-anxious” (LA) participants (50). Both subjective and perceived confidence were significantly correlated with accuracy for HA participants but not for LA participants (52). 
75	Another factor influencing witness confidence may be confirming feedback offered after an identification. Wells and Bradford (1998) found that witnesses confidence in their identifications increased after they received confirming feedback. The witnesses had all made incorrect identifications from a photograph lineup in which the target was absent.
identification procedures
76	Recognition memory is the memory that is activated when a person sees someone (or something) that they have seen previously. Identification procedures test a witness’s recognition memory rather than his or her ability to recall the appearance of the offender and verbally describe it. It should be noted that it is possible for a witness to provide a detailed and unique verbal description which may enable the police to accurately identify the offender. For example, a witness may describe a person as male, Caucasian, 5 feet tall, with red hair, heavy build, with a tattoo of the Virgin Mary on one upper shoulder, and “Mum” on the other. If the police find a suspect with exactly these features, then an identification by the witness would be unnecessary. However, such witness descriptions are very rare. 
77	A range of identification procedures are used by the Police, including showups, photographic lineups, video-film lineups and live lineups. In a showup a witness is taken to a location where the suspect is expected to be or might appear and asked to point the offender out. In a lineup the witness is asked to identify the culprit from a group of people which will include a suspect and a number of innocent participants (called “distractors” or “foils”) who closely resemble the suspect. In real life situations, police identification procedures always include a suspect. That person, who may be innocent, is suspected of being the culprit of the crime. Psychological experiments on the other hand usually test the identification accuracy of their subjects using two lineups, one containing the culprit (the target) from the staged event or film used in the experiment (known as a “target-present” lineup) and one in which the culprit is absent (known as a “target-absent” lineup). 
78	Eyewitness identifications take place in a social context in which the eyewitness’s performance can be influenced by expectations and inferences. These may be influenced by the verbal and non-verbal behaviours of investigators, the structure of the identification test, and the environment in which the identification test is conducted (Cutler and Penrod, 1995:113; Kapardis, 1997:73). Other factors already discussed, such as the witness’s personality, age, previous memories, and post-event information, may be relevant. As noted in para 39, children are more likely than adults to make an incorrect selection in a target absent lineup, despite being just as accurate as adults in a target present lineup. This appears to be because they are more vulnerable than adults to the implicit demand that they make a choice. The following sections focus on aspects of different types of identification procedures which may influence eyewitness identification accuracy.
Showups
79	Showups are used frequently by the NZ Police and vary greatly in practice. For example, an officer may drive the witness around the vicinity of the crime in the hope that the witness will identify the suspect. Or, the witness may be taken to the entrance of a court where it is known the suspect will appear, and be asked to identify anyone who resembles the alleged offender. In another scenario the suspect will be asked to sit inside an unmarked police car at the crime scene and the witness asked to identify the alleged offender from the people at the scene.8
80	Police in New Zealand and other jurisdictions favour the use of such informal procedures largely on the grounds of practical convenience. Some psychologists have expressed concern that these procedures are significantly more likely to lead to false identifications than lineups (eg, Kassin et al’s 1989 survey of USA eyewitness testimony experts, cited in Kapardis, 1997:240). However, results of psychological experiments which examine identification accuracy of showups versus multiple person lineups are mixed (Wagenaar and Veefkind, 1992:282; Gonzalez, Ellsworth and Pembroke, 1993). The difference in findings may reflect differences in the events staged, the subjects used, the length of retention period, and the option provided to witnesses in one study to say that they could not remember (Kapardis, 1997:242).
81	Gonzalez et al analysed data from 172 actual live showups and 50 actual photograph lineups and found that in both live and photographic procedures witnesses were more cautious in making an identification in a showup than in a lineup (Kapardis, 1997:
241–242). Later experimental studies attempted to take into account guessing by subjects. Yarmey et al’s 1994 study found that, taking into account guessing, witnesses were more likely to identify a target in a 6-person lineup than in a showup. Accuracy in showups was little better than chance (cited in Kapardis, 1997:242). In a later study Yarmey, Yarmey and Yarmey (1996) concluded that accuracy of performance was superior in 6-person photographic lineups than in showups over time (comparing performance immediately, then after 30 minutes, 2 hours and 24 hours) and that false identifications of a lookalike innocent suspect were significantly greater in showups than 6-person lineups. 
Photographic and live lineups
82	In New Zealand, photographic lineups are the most commonly used identification procedure. When compiling a photographic lineup, the police assemble photographs of at least 7 people who resemble the suspect. The witness is shown these photographs with a photograph of the suspect and asked to identify the offender. The police also have a new computerised photographic image management system (PIMS). All negatives of prisoner photographs are sent to Police National Headquarters (PNHQ) to be stored on this system. Police can now send a request to PNHQ for a photographic lineup comprising photographs of people who are similar in appearance to the suspect (the photographs are front and side profile, head and shoulder colour photographs; sometimes the top part of the person’s clothing is visible).9
83	There are a number of limitations to photographs as an identification medium compared to video or live identification procedures: photographs are static; they test a person’s picture recognition accuracy rather than face recognition accuracy (Bruce, 1988); often they give information about a person’s face from only one or two views (face on and a side on profile) and they do not provide information about the person’s body (eg, height and weight) (Davies, 1989; cited in Kapardis, 1997:233). Unlike a static picture, motion gives information about a face from a variety of views as well as information about the effects of illumination, and thus can provide information that can be used to increase identification accuracy (Pike and Kemp, 1995:26, in Kapardis, 1997:233). Whether these differences impact on identification accuracy is discussed at paras 85–87.
84	Live lineups are rare in New Zealand. No statistics are kept by the NZ Police, however, an informal survey of police throughout the country gave the impression that identification is an issue in roughly one quarter of all criminal cases, and in less than 20% of those cases identification parades are held.10 This is similar to police practice in other Western English-speaking countries such as Britain, Australia, Canada and the USA. Kapardis points out that the tendency of psychologists to focus on the reliability of lineup identifications, to the exclusion of other more commonly used identification procedures, is unfortunate and may skew the overall picture of the reliability of eyewitness identifications:
Without wishing to downplay the seriousness of witness misidentification and the conviction of innocent suspects, the reader should note that psychologists’ exclusive focus on misidentification of innocent suspects in lineup identification, and by presenting this phenomenon in a somewhat stereotypical way against an over-typical background, most probably distorts the picture, for there is generally a failure by researchers to locate the issue of misidentification in a broad psycholegal context.  . . .  The need to also know about the incidence and factors underpinning accurate witness identification with different identification procedures cannot be overemphasised. (Kapardis, 1997:243; emphasis added)
Medium
85	The identification test medium is the medium through which the person whose identity is being tested is shown to the witness. It may be a live appearance, video-film, photograph or drawing. The medium of an identification test can pose limits on the cues (that is, all a person’s physical features that potentially contribute to recognition) available to an eyewitness. For example, photographs cannot provide cues concerning a person’s gait or other forms of body movement or voice; in addition, mugshots showing only a front, head and shoulders view of a person do not provide cues that would be available from a profile or three-quarter, or full body view (Cutler, Berman, Penrod and Fisher, 1994:164). In theory, identification test media which provide a greater number of cues could result in more accurate identifications. 
86	Do different identification test media produce different identification performance? There is some evidence that procedures using live subjects produce more reliable results than those using video recordings, while procedures using video recordings produce more reliable results than those using photographs (eg, Egan, Pittner and Goldstein, 1977 (photographs vs live lineups); Cutler, Fisher and Chicvara, 1989 (videotaped vs live lineups)). Davies, Ellis and Shepherd’s 1978 study on face recognition as a function of mode of representation found that subjects recognised photographs significantly more accurately than line drawings, which in turn were superior to outlines (1978:186).
87	However, in their recent meta-analysis of experimental studies (including Shapiro and Penrod’s 1986 meta-analysis of facial recognition studies, outlined in Cutler and Penrod, 79–81) Cutler, Berman, Penrod and Fisher found that the effect of the identification test medium used (live lineups, photograph arrays, video-taped lineups, slides, and line drawings) varied considerably across experiments. They found that when averaged across studies, varying availability of cues produced a trivial effect on identification accuracy. They stated:
With respect to current practices, the conservative conclusion is that, based on available research, there is no reason to believe that live lineups, video-taped lineups, or photograph arrays produce substantial differences in identification performance. Based on what is currently known, identifications from photograph arrays should therefore not be given less weight in investigations or in trials than identifications from live lineups. Another conclusion is that, given the apparent compatibility of live lineups and photograph arrays, it is not worth the trouble and expense to use live lineups. (1994:181)
Size
88	The term “functional size” refers to the number of distractors in a lineup in relation to the number of suspects. The number and quality of distractors in an array or lineup have been shown to influence its fairness.11 To minimise chance identifications, Wells et al recommend that an array contain only one suspect and a minimum of five appropriate distractors (Wells et al, 1994:229). They acknowledge that there is an arbitrary aspect to this number, but argue that there are clear theoretical arguments about the rate at which false identifications can be expected to decline as a function of the ratio of distractors to innocent suspects.
89	Whether distractors are chosen due to their similarity with the suspect, or the witness’s initial description of the offender, may impact on the functional size of a lineup (Wells et al, 1994:229; see also Kapardis, 1997:251 and Cutler and Penrod, 1995:125). Wells et al make their functional size recommendation dependent on “appropriate” distractors being chosen (this is discussed below).
Distractors
90	Historically, psychologists have advocated maximising the similarity of appearance between distractors and the suspect (Cutler and Penrod, 1995:124). Wells, Lindsay and Ferguson (1979), however, disagree and argue that given this advice the ideal lineup would be one of clones (see also Luus and Wells, 1991, citing Shepherd, Ellis and Davies, 1982, and Wells and Luus, 1990). Instead, Wells et al advocate lineups comprising distractors who match descriptions given by the witness at the time of the crime on all features mentioned, but that the distractors should be permitted to vary on features not mentioned in the witness’s description. They argue that in this way innocent suspects are protected from being selected by witnesses. The features that are common only to one or a small number of the distractors are the features that test the recognition of the witness (see Luus and Wells, 1991:48–51).
91	There is some relatively recent scientific evidence to support the proposition that distractors should be chosen by their similarity to the witness’s initial description of the offender (Luus and Wells, 1991:43; Navon, 1992:575) however, further research is required. Luus and Wells note that this strategy for selecting distractors may be problematic in at least three types of situation, including when the eyewitness’s description does not resemble the suspect but the police have some other evidence against the suspect (eg, possession of stolen goods) (1991:53–55). They suggest some useful strategies to adopt in such situations.
Clothing
92	Studies have examined the extent to which the clothes worn by lineup members influence identification performance, and whether witnesses use clothing as a cue in the identification process. This is significant if a suspect is wearing clothing similar to that worn by the offender. Lindsay, Wallbridge, and Drennan (1987) combined data from three experiments conducted on 392 subjects and found that the rate of false identifications was significantly higher where biased clothing conditions were used (ie, only the suspect wore identical clothing to that worn by the perpetrator during the staged crime). They concluded that clothing-biased lineups substantially increased the likelihood of false identifications (described and cited in Cutler and Penrod, 1995:126–127; Kapardis, 1997:250–251). The study indicates that when a perpetrator is in the lineup, the degree of similarity in clothing between the suspect and the distractors does not influence the number of correct identifications, but does lead to significantly fewer false identifications if distractors are dressed in exactly the same clothes as the perpetrator.
Instructions
93	Instructions given to eyewitnesses prior to identification can vary in their degree of suggestiveness (in the sense that they may enhance the likelihood that the person will make a positive identification, whether correct or not). As described by Steblay:
The witness is provided with a scenario in which the task is clearly defined (choose the perpetrator from the lineup), and in which the familiar script is augmented by instructions from an authority figure which may provide informational social influence (the perpetrator is in the lineup) as well as normative social influence (the correct response is to make a choice). (Steblay, 1997:284)
94	In their review of studies in this area, Cutler and Penrod concluded that there is strong evidence that suggestive identification instructions influence witness performance: they will substantially increase the likelihood of false identifications, particularly in lineups where the offender is not present (122). Kapardis, on the other hand, notes that Köhnken and Maass challenge using the research on biased instructions to draw conclusions about actual lineups because their own findings indicate that “the instructional bias effect observed in previous experiments is limited to subjects who are fully aware that they are participating in an experiment”. They suggest that the fact that they failed to find a significant increase in false identifications as a function of biased instructions “suggests that eyewitnesses are better than their reputation” (Köhnken and Maass, 1988:369, cited in Karpardis, 1997:253).
95	More recently Steblay has conducted a meta-analysis of 18 articles providing 22 tests of hypotheses regarding the effect of lineup instructions. The sample included work published between 1975 and 1996, representing 2588 subjects (1997:287). This meta-analysis supports the hypothesis that biased instructions significantly affect eyewitness lineup identification performance, producing the strongest effect when it is suggested to the witness that the perpetrator is present and no explicit option is given to reject the lineup (294).
96	Interestingly, instructions that suggested to the witness that the perpetrator was in the lineup and that provided no explicit option to reject the lineup produced significantly more correct identifications in a target-present lineup than did the unbiased instructions. This is likely to be due to the fact that, where an uncertain eyewitness believes that the perpetrator is present in the lineup and feels compelled to make a choice, they are likely to use a relative judgement strategy and choose the person who most resembles their memory of the perpetrator. In a controlled experiment where the target is present in the lineup, this strategy works. However, in real lineups there is no certainty that the perpetrator is present and the person chosen may be an innocent suspect who resembles the true culprit. More pertinently, results clearly demonstrated that biased instructions significantly decreased identification accuracy in target-absent lineups (Steblay, 1997:294). More studies are required in this area to determine to what extent these findings apply to real life situations.
Presentation
97	There has been great interest in the scientific community about the best method of presenting lineups. NZ Police use simultaneous presentation for identification procedures: the witness is shown all the participants or images at once and asked to decide which one is, or represents, the offender. This involves comparing the participants or images before coming to a conclusion and may include an element of guessing. In a sequential procedure the witness is shown the participants or images individually and asked if this person or image is the offender. The participants or images follow one another in a cycle until they are all finished or the witness has identified the offender. It is hypothesised that sequential procedures involve absolute judgment processes, which are better and more accurate than the relative judgments required in a simultaneous presentation. Because sequential procedures only allow the witness to see one image at any one time, the witness must therefore analyse the image, compare it with the memory of the offender, and then make an absolute judgement regarding identity.
98	Psychological studies indicate that using sequential procedures rather than simultaneous procedures only slightly increases the incidence of correct identifications when the target is present. However, sequential procedures do result in a significantly lower rate of false identification than simultaneous procedures in target-absent lineups. For example, in Lindsay and Wells’ (1985) experiment 43 percent of eyewitnesses exposed to a simultaneous lineup made a false identification whereas only 17 percent of eyewitnesses shown the same lineup sequentially made a false identification (Cutler and Penrod, 1995:128). The results of these studies have been replicated a number of times over. The reduction in the number of false identifications in target-absent lineups implies that witnesses are guessing less often when sequential procedures are used. Sequential procedures appear to have similar beneficial effects for children’s performance (Parker and Ryan, 1993:21; Cutler and Penrod, 1995:135).
99	Lindsay, Lea and Fulford (1991) conducted a series of experiments examining whether sequential presentation reduces the impacts of other biasing aspects of identification procedures for clothing, distractors or instructions. The first experiment replicated earlier results in finding that sequential presentation significantly reduces the false identification rate in the target-absent situation. Their second experiment found that the influence of clothing bias was minimised by sequential presentation. It also appears from their third and fourth experiments that sequential presentation minimises the effect of distractor and instruction bias respectively. Their fifth experiment found that sequential presentation overcame the combined influence of all three types of bias (clothing, distractor, and instruction). These experiments did not, however, explore the impact of investigator bias, that is, whether the person conducting the lineup knows the identity of the suspect (see para 102).
100	Research has shown that the reduction of false identifications in sequential procedures, as compared to simultaneous procedures, is diminished in circumstances where:
•	the witness is told the number of participants or images they will be shown in the lineup;
•	the witness is shown the participants or images more than once, particularly if the second lineup is presented simultaneously;
•	the participants or images are dissimilar to the suspect (Lindsay, Lea, Nosworthy, Fulford, Hector, LeVan, and Seabrook, 1991; Lindsay, Lea and Fulford, 1991; Cutler and Penrod, 1995:
127–135).
101	While there is considerable empirical support for the superiority of sequential identification procedures, it may be premature to recommend that all identification procedures be presented sequentially. Wells et al caution that police who do not or cannot ensure investigator impartiality may create more problems in sequential than simultaneous procedures (Wells et al, 1994:241).
Investigator
102	Some psychologists have hypothesised that an investigator who knows which lineup member is the suspect can inadvertently, or advertently, bias the eyewitness through non-verbal cues such as leaning forward, smiling, and nodding. There is no published data confirming that the lineup administrator’s knowledge of who the suspect is influences the subjects’ decisions, however, there is some unpublished data confirming this hypothesis. Cutler and Penrod tentatively refer to lineups in which the investigator knows the identity of the suspect as suggestive (1995:135). Wells et al, (1994:236) recommend that the lineup administrator should not be aware of which person in the lineup is the suspect and which persons are distractors. This is another area in which further research is required.
4. Children’s memories
introduction
103	The evidence of children has been regarded with suspicion
	in common law jurisdictions for most of the 20th century. Until recently, judges were required to warn juries of the need to scrutinise the evidence of young children with special care as children were believed to be prone to invention and distortion. However, in the 1970s and 1980s the number of child witnesses appearing in court increased, while at the same time research demonstrated that in some circumstances children were capable of giving reliable testimony from a very young age. This resulted in a change in attitudes and many jurisdictions, including New Zealand, legislated to prevent judges from giving a warning based solely on the age of a child.12 Recently, it has been argued that there is a perception that children’s testimony is completely reliable and there ought to be a warning to juries that this is not the case. We prefer the view expressed by Goodman and Schaaf that:
[c]hildren’s abilities are complex: one can focus on the strengths or weaknesses of children’s memory to justify a positive or negative view. What is difficult is to find the right balance. (1997:S5)
104	In recent years much research has been undertaken relating to aspects of children’s memory. For accounts which attempt to condense the information see: Spencer and Flin, The Evidence of Children: The Law and the Psychology; McGough, Child Witnesses: Fragile Voices in the American Legal System; the Ontario Law Reform Commission, Report on Child Witnesses (OLRC, Toronto, 1991); and Ceci and Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony. In October 1996, the Law Commission published The Evidence of Children and other Vulnerable Witnesses (PP26), a preliminary paper which included an appendix summarising psychological literature on the reliability of children’s testimony. It also considered whether children were predictably less reliable in their recollections than adults. This chapter reproduces and updates the information contained in that appendix.
105	As we stated in the preliminary paper, it is generally agreed that the memories of both adults and children are fallible. Adults, like children, may be mistaken in their perceptions and confused in their memories. We stated that the appropriate question to ask is whether children, in particular young children, are predictably less reliable than adults. It may be more appropriate to ask what are the conditions under which young children provide the most complete and accurate accounts of past events (Pipe, 1996:38).
memory performance
106	For many memory tasks, including those which involve recognition, even quite young preschool children form memories which are reliable and quite organised compared to adults (eg, Ceci and Bruck, 1993:235; Myers, Saywitz and Goodman, 1996; Pipe, 1996). Children, including very young children, are capable of giving very accurate accounts of a wide range of events, although these accounts will typically be lacking in detail.
107	There is a reasonable consensus that children’s abilities to recall and communicate develop with age, and that it is a combination of children’s knowledge, their skills and social factors which influence children’s memories and their ability to recall past events (Pipe, 1996). The following limitations, which operate at all three stages of the memory process, need to be born in mind:
•	children view the world differently from adults, the information about an event which a child considers important and selects for remembering will be determined by the child’s knowledge and level of development;
•	unlike older children and adults, young children cannot spontaneously use complex memory strategies to increase the amount of information they recall;
•	young children are very dependent on context to prompt their memory for an event;
•	children and adults differ in their ability to narrate a past event (Myers, Saywitz, and Goodman, 1996).
108	Research indicates that these limitations are not immutable (Pipe, 1996). Equalising the knowledge base has been shown to diminish age related differences in memory ability. For example, in Chi’s 1978 study expert child chess players performed better than adult non-chess players at recalling chess positions, indicating that knowledge rather than age was the more important determinant of memory (cited in Pipe, 1996). Teaching children to use strategies that help encode and retrieve information has also been demonstrated to decrease age differences in memory (Kobasigawa, 1974, 1977, cited in Pipe, 1996). In addition, if the event is personally significant, or the actions are central and familiar to the child, then a child’s memory may be enhanced and developmental differences can often be reduced (but see para 127).
109	Difficulties in ordering complex and less familiar events, or recalling the exact date of events, or estimating distance or speed can sometimes also be overcome. A child may be asked to position events in time in relation to an important event in the child’s life, such as a birthday, or asked to give relative estimates of things such as speed or height. For example, asking a child to compare the height of the suspect with the height of the interviewer. It must be remembered that adults sometimes have the same difficulties and prefer to give relative estimates (see paras 66–70 in relation to adult eyewitnesses’ abilities to make accurate estimates about such matters).
remembering events
Free recall and recognition
110	A consistent finding in the literature is that young children spontaneously recall less information than older children and adults (Pipe, 1996:38). Children who are asked to freely recall an event are generally regarded as being capable of providing accurate information, but they report less information, partly because of less developed communication skills. The younger the child, the less detail they will spontaneously report. There appear, therefore, to be significant age differences in quantity but not quality of freely recalled details. Interestingly, age differences in recognition memory are far less pronounced than for free recall and at times may be non-existent (Ceci and Bruck, 1993:404). The studies indicate that preschoolers’ recognition memory can be remarkably accurate, and that, like adults, children remember more details than they spontaneously report.
111	Children may therefore require more assistance than adults to recall all they know; for example by the use of cued questions. Pipe, in her literature review, also concluded that children will recall more information if provided with adequate support (1996:42). However, the type of support provided – whether props or a certain kind of questioning – is critical (see paras 113–119).
112	Like adults, children may have difficulty answering questions about peripheral detail. However, in some instances, children will provide details which adults would have overlooked. This is because “what is central and what is peripheral in any given situation is entirely in the eye of the beholder, irrespective of the beholder’s age” (Spencer and Flin, 1993:302).
Responding to questions and other prompts
113	As mentioned, young children need more specific cues and a greater number of cues, to access, retrieve and report specific memories in detail. Young children’s accounts can be reliably enhanced, at least when the children are interviewed soon after the event. However, the methods used to draw out the further information must be carefully monitored to ensure that they do not compromise accuracy.13 Psychological studies on children’s suggestibility are highly relevant to the conduct of interviews (see paras 124–128). It also appears that children should not be questioned in a linguistically complex manner – such complexity will diminish the accuracy of children’s recall regardless of interviewer style, subject matter, or the suggestiveness of the question (Carter, Bottoms, and Levine, 1996:349). Unfortunately, complex questioning is a feature of examination and, more particularly, cross examination of child complainants in sexual abuse cases in New Zealand (Davies and Seymour, 1998; Davies, Henderson and Seymour, 1997).
114	To obtain additional information it is usually necessary to structure the child’s recall by using focused questions and physical props to prompt memory. Prop items, especially actual items from an event, may help the retrieval of information and enhance children’s verbal accounts. There are many kinds of props and techniques that can reliably be used to help children remember and report events, for example the cognitive interview (see para 50). 
115	On the other hand, some kinds of props (especially toys) may prompt inaccuracy. It has been suggested that this is due to the inability of young children to treat a toy as a representation (Pipe, 1996:39, citing a number of studies by DeLoache and colleagues). This may be more relevant for very young children. Five year olds seem able to make the connections between models and toys to the items they represent, and to use that relationship when talking about past events (Priestley and Pipe, 1997:75). Encouraging children to interact with props, however, may increase report errors. Children may be more likely to attend to the props as play things and be distracted from the central task of using the props to help them talk about their past experiences. Not all studies have found that the use of toys increases errors (Priestley and Pipe, 1997:70). Priestley and Pipe’s study showed that increasing the number of props, or the similarity of the props to the items they represent (either in terms of physical similarity or spatial arrangement of the items) increased their effectiveness (1997:84). The authors suggest that the effect of prop items is likely to depend on the nature of the prop items, the way in which they are used in the interview, and the nature of the event being recalled. In their study the event and prop items were relatively unique and distinctive, many having been constructed for the study (85). 
116	Everson and Boat (1997) considered the use of anatomical dolls in forensic interviews with children, particularly in sexual abuse cases. Their article set out the different functions these dolls can have in a forensic interview, including use as an icebreaker (a conversation starter on the topic of sexuality) or as a demonstration aid (a prop enabling a child to “show” rather than “tell” what happened) (S56–S57). They reviewed the controversy about the use of anatomical dolls and highlighted a number of important points about their use in interviews. The authors concluded that there is growing evidence that the use of anatomical dolls does enhance children’s recall when compared to purely verbal interviews (S60). 
117	The authors also discussed research bearing on whether anatomical dolls induce non-abused, sexually naïve children to engage in behaviour with the dolls that is likely to be misinterpreted as evidence of abuse. A review of studies of children not known to be abused found that inspecting and touching sexual body parts on the dolls was fairly common, however, play demonstrating explicit sexual activity such as intercourse or oral-genital contact was rare (4 percent of a combined sample of 550+ children over ten studies). There was evidence that such play may be traced to a source of sexual exposure, such as pornography or observation of sexual behaviour among teenage relatives. The authors concluded that, taken as a whole, the literature on children’s normative behaviour with anatomical dolls fails to support the claim that dolls stimulate explicit sexual play in sexually naïve children, or that explicit sexual play with dolls arises from innate factors independent of sexual exposure and experience (S62). 
118	Everson and Boat also discuss a second body of research which is relevant to the suggestiveness debate, the use of anatomical dolls to interview children who have experienced a known medical event involving touching of the genital or anal area. Some of this research has found the use of anatomical dolls to be associated with increased suggestibility (see for example, Ceci and Bruck, 1993). Everson and Boat consider that methodological problems common to this body of research, such as the use of suggestive and leading questions in combination with anatomical dolls, meant that conclusions based on it are not applicable to the use of anatomically correct dolls in a procedurally correct, non-suggestive forensic interview (S63). Nevertheless, the use of anatomically correct dolls remains controversial, especially with young children. As was noted in para 115, very young children may be unable to treat the doll as a representation and thus use of the doll may impede rather than facilitate their ability to provide accurate testimony (Ceci and Bruck, 1993). Certainly, the effect of dolls on the accuracy of children’s reports will, as is the case for any props, depend on each individual child’s cognitive abilities and the way in which the dolls are used in the interview context. 
119	One recent study focused on whether photographs, in conjunction with other interview aids, may assist young children in terms of the amount and accuracy of information recalled. Aschermann, Dannenberg, and Schulz’s study found that children benefited from photographs14 as a retrieval aid in addition to a “reinstate context” instruction (adapted from the cognitive interview, see para 50) when recalling a past event with an unknown adult (1998:62). The authors suggested that the instruction to children to first identify the relevant picture prior to questioning may have prevented additional errors (63). Drawing is another technique which may increase the amount of verbal information recalled by young children without a decrease in accuracy. For example, Butler, Gross and Hayne’s 1995 study suggests that drawing benefits 5–6 year olds but makes no significant difference to the performance of 3–4 year olds. Gross and Hayne’s 1998 study indicates this effect is maintained for young children’s verbal reports of their emotional experiences.
The narrative ability of young children
120	Young children may recount their experiences in a manner different to that of adults and older children. MacDonald and Hayne (1996) demonstrated that 3 and 4 year old children can provide accurate, but considerably different, information about an exciting event to a parent and to an interviewer. The parents had been instructed to carry out normal discussions during the week following the event, without pressing the child for details. The interviewer questioned the child a week after the event, using free recall and open questions. This result suggests that differences in children’s accounts on different occasions in clinical and legal settings, should not necessarily be interpreted as a lack of reliability, at least when the child is questioned in a non-suggestive manner. 
121	The young child’s lack of verbal skill affects the ability of adults to correctly interpret the child’s meaning (Sutherland, Gross and Hayne, 1996). Sutherland, Gross and Hayne tested the ability of adults to understand accounts of a past event by a 3 year old and a 6 year old. The adults gleaned more information from the 6 year old’s account than the 3 year old’s account. They concluded that an adult’s ability to understand children’s testimony increases as the child’s narrative ability develops with age. This points to a need for training and skill in the questioning of very young children.
The effect of delay
122	Delay has a greater effect on the spontaneous recall of young children as compared to adults. Specific prompts and cues, such as photographs of the event, will enhance recall. However, the use of prompts may also elicit much unreliable information (see paras 113–119). Shrimpton et al’s 1998 study confirmed earlier research about the effect of delay. They found that children’s memories for an event (one stressful and one not) were better in an earlier interview (after 2–7 days) compared to children first tested after a lengthier delay (6–8 weeks) (1998:141). Also, children who had both an early and later interview gave more correct responses in free recall than children first interviewed at 6–8 weeks (139).
123	Most writers consider that the memories of young children are generally more susceptible to fading than those of older children and adults (see also Fivush and Shukat, in Zaragoza, Graham, Hall, Hirschman and Ben-Porath (eds) (1995); for a recent summary, see McGough, chapter 4). Although there is some evidence that younger children may forget more quickly than older children, occasionally older children may forget more over time than younger children, perhaps partly because they remember more in the first instance.
suggestibility15
124	It seems fair to conclude from recent research that although the accuracy of both adults and children can be affected by leading or suggestive questions,16 the ability to resist the influence of external suggestion increases with age (Ceci and Bruck, 1993). Children of 10 or 11 appear to be no more suggestible than adults (Myers, Saywitz, and Goodman, 1996; compare Pipe, 1996, who suggests that the likelihood that a child will resist a misleading suggestion increases with age, until about the age of 8). As younger children have been shown to be more suggestible than adults and older children, interview aids must be used carefully to avoid the possibility of influencing the child’s recall. Children may also change their account of an event not because their actual memory of the event has altered or become confused but because they wish to comply with the suggestion of an adult in authority or because they interpret an adult’s repeated questioning as an indication that their first response was judged “wrong” (Spencer and Flin, 1993:305–306; McGough, 1994:71–73).
125	In other words, children’s suggestibility is not just a function of age – it also depends on the interaction of age with other cognitive and social factors (Goodman and Schwartz-Kennedy, 1992). A child, and also many adults, will be less open to suggestion if:
•	the event is familiar, or personally significant; memories of events are stronger and less likely to be “contaminated” by other sources, if they are personally experienced (Pipe, 1996; compare Poole and Lindsay, 1995);
•	the information is central to the event from the child’s perspective (young children may regard some details as central which older children may not);
•	the child is not embarrassed about the information (Goodman and Schwartz-Kennedy, 1992:31);17
•	there is minimal delay between the event and the reporting of it (this is also true for adults; Loftus and Davies, 1984:63);
•	the interviewer is skilled in questioning children;
•	questions are appropriately worded and not beyond the child’s level of comprehension;
•	the interview surroundings are supportive; and
•	the child does not perceive the interviewer as an authority figure who must be obeyed or pleased (Spencer and Flin, 1993:306).
126	Providing children with training designed to increase their ability to resist suggestion may also be effective. Such training is described in Saywitz and Moan-Hardie, 1994, and Gee, Gregory and Pipe (in press). Interviewing techniques may also reduce the risk of suggestion, for example, by emphasising to the child that he or she is not expected to know all the answers and that the child may say “I don’t know”. Powerful social rules may operate on the child; for example, the desire to please the adult, to terminate the interview as soon as possible, and a belief that the adult knows best or has superior knowledge. Research suggests that the following interview techniques may also reduce the suggestibility effect for young children:
•	repeated use of open questions in order to elicit more information (Memon and Vartoukian, 1996);
•	explicit statements that explain why questions may be repeated (Memon and Vartoukian, 1996);
•	explicit statements that the child may have received misleading information and not to base recollections of the event on it (although there is little research on this; see Lindsay, Gonzales and Eso described by Memon and Vartoukian, 1996);
•	social support (ie, the child is interviewed in a warm rather than intimidating manner) (Carter, Bottoms and Levine, 1996).
127	As Bruck, Ceci and Hembrooke (1998:141) note, in the first 80 years of this century most of the research on suggestibility focused on the effects of asking a single misleading question or of providing erroneous post-event information. They state that suggestive interviews are now conceived of as a complex mingling of motives, threats, and inducements which may appear in the form of misleading questions. Unfortunately, this reflects the conduct of some real life investigations. In their review of relevant studies, Bruck et al conclude that suggestive techniques not only influence recall of peripheral and unimportant details, but also lead to false claims about a wide range of events, many of which are personally meaningful such as bodily touching (1998:142). 
128	A recent study examined the influence of suggestions provided to interviewers prior to questioning (White, Leichtman, and Ceci, 1997). The study was an attempt to emulate the real life situation in which interviewers might have contact with parents, police and therapists prior to an interview, and to consider what effect on questioning this prior contact may have. Results indicated that suggestions to interviewers determined the questions they then asked. Younger children acquiesced more often than older children (a consistent research finding) to questions based on inaccurate information. Their findings suggest that preschoolers’ reports about personal bodily experiences (ie, touching) are not exempt from the influences of an adult’s misleading questions (S52). What the authors called “bizarre misleading questions” concerning interactions of a highly personal nature (for example, kissing, hugging) exerted a “sleeper effect” on children’s responses over the period of two interviews. They did not appear to elicit inaccurate elaboration responses in the first interview, but did elicit errors (compared to normal questions) in the second interview. The authors caution readers that their sample is small and that there are a number of possible reasons for their findings (for example, the playfulness of the interviewer, and the type of event children participated in (a Simon says game)). 
false memories
129	According to a review of studies by Bruck, Ceci and Hembrooke (1998:140) some data indicates that when accuracy drops off, it is not merely the case that children forget and therefore make errors of omission, but that they also make errors of commission. This, of course, is also possible for adults. Generally, such errors are minor and relate to a detail that was part of an event that did occur. A number of studies have demonstrated that under certain conditions it is possible to plant events in memory. Research indicates that it is much more difficult to suggestively plant a false memory than it is to suggestively change an existing memory (Pezdek and Roe, 1997).
130	Some studies have attempted to explore whether young children have difficulties distinguishing between real and imagined events, in other words whether they are less able than older children and adults to distinguish between various sources for their memories. This area of research is relatively unexplored. Some studies have suggested that children could be more vulnerable to confusion between actual and suggested events when they are perceptually and semantically similar. For example, distinguishing between watching a video in which a girl touches her nose, compared to imagining the girl touching her nose (Lindsay et al cited in Ceci and Bruck, 1993:418). There is as yet no clear data to link children’s suggestibility to source monitoring difficulties (Ceci and Bruck, 1993:418).
5. “Recovered” memories
Introduction
131	Over the past few years media attention in New Zealand
	and overseas has focused on adults’ “recovered” memories of childhood sexual abuse; memories they claim to have recalled after a period of full or partial forgetting. Concerns have been expressed about the accuracy of such memories given the length of time between the event(s) and the recall of the memory, the apparent partial or full amnesia for the event(s) for that period of time, and the possible influence of therapy techniques on the veracity of those memories. The New Zealand Psychological Society’s report on memory of traumatic childhood events states that there are two issues at the heart of the debate:
•	what is the fate of memories of traumatic experiences?
•	can memories of traumatic experiences that were previously inaccessible later become available for report? (Corballis, Pipe and McDougall, 1997:307)
Forgetting and remembering traumatic events
132	It is a common anecdotal observation that people forget. The fundamental theoretical question of whether forgetting is the result of actual loss of information stored or encoded, or whether it is the loss of access to that information (which remains stored forever), may be unanswerable in principle (see also paras 57–58). The suggestion that some events may be more likely to be forgotten is not a new one. However, the factors which underlie forgetting are elusive (Loftus and Loftus, 1980). A number of factors may influence whether an event is forgotten. These include expectations, attention, rehearsals, retellings, post-event information, trauma or shock, and time. Psychological literature reflects a traditional assumption that memory for traumatic events may differ from that of other events. 
133	Anecdotal reports, case studies and experimental research demonstrate that traumatic events can be remembered quite well, and that they can also be forgotten. Many studies of the adults and children involved in documented traumatic events report that while the individuals exhibit “severe post-traumatic psychopathology”, many recall the events in extraordinary detail. A number of other studies, while not specifying the nature of the memory deficits, have also documented memory disturbances for traumatic events such as tornado, fire, and aeroplane crashes. One study on the memory of concentration camp survivors over a period of 40 years suggests that painful and traumatic experiences are sometimes remembered in detail. However, the study also indicated that such experiences can be forgotten. For example, one person witnessed a murder and later forgot, and even denied having said that he had witnessed the event (Wagenaar and Groeneweg, 1990).
134	Throughout this century psychologists have been interested in the way in which people remember emotional events and have investigated this through case studies and other non-experimental means. A line of experimental studies seems to show that people do not remember the details of the emotional event as well as the details of the neutral event. Christianson and Loftus (1991) concluded on the basis of their experimental studies that, compared to a neutral event, an emotional event was well retained with respect to memory of a detail associated with central information. However, a detail associated with peripheral information was less well retained. The authors acknowledged that generalising from their findings to other situations presents the problem of determining which details are central and which are peripheral. The studies on “weapon focus” are also relevant, see paras 36–37.
135	A number of studies have suggested that people can forget a traumatic event for a period of time and then later “recover” or recall their memory for the event (this may be described as “recovered memory”). Most of these studies have been based on subjects’ own retrospective reports which were often not corroborated. However, in Williams’ (1994) prospective study investigating the forgetting and later remembering or “recovery” of memories of childhood sexual abuse, independent corroboration of the sexual abuse existed in hospital records from 17 years earlier. In William’s study, 12 percent of the subjects with such records reported that they had never been sexually abused as a child. Of those that recalled the abuse, a number (16 percent of the total sample) reported that at some time in the past they had forgotten about the abuse.
136	Scheflin and Brown recently reviewed the psychological literature on forgetting childhood sexual abuse. They found 25 relevant studies. According to the authors the earlier studies had methodological problems, but, later studies employed a variety of increasingly sophisticated designs to overcome such problems. Many of these studies have been criticised because they relied on retrospective self-reported data. However, a number of these studies do demonstrate that some people fail to recall documented abuse and that some of those who report such abuse also report having had periods when they did not remember it. Scheflin and Brown concluded that the rates of full or partial forgetting of childhood sexual abuse were reasonably consistent across the studies (28–42 percent) with two exceptions. The rates from clinical studies and random surveys were similar.18 
137	Delayed recall of memories for other types of trauma has been less systematically studied. Recent studies clearly indicate that partial or complete loss of memory is not limited to sexual abuse but exists across a variety of traumas (studies cited by Elliott, 1987:812). Elliott surveyed a random sample of individuals in the general population about self-reported memory loss and subsequent recall of traumatic events. The data confirmed the suggestion that delayed recall occurs across a variety of traumas, and that it is especially high for those events involving interpersonal victimisation (818). 
Amnesia for traumatic events
138	Amnesia for traumatic or stressful events is a recognised phenomenon. It may be diagnosed as dissociative amnesia, a term included in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association.19 Dissociative amnesia is “characterised by an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness”.20 It may occur in post-traumatic stress disorder (PTSD), acute stress disorder and dissociative disorders, or be observed as a phenomenon of its own. Baddeley, in his text Human Memory: Theory and Practice, states that 
there is no doubt that powerful negative emotions can induce amnesia, although the extent to which the patient is totally unable to access the stressful memories, and to what extent he or she “chooses” not to, is very hard to ascertain. (274)
139	Aberrations in memory are a significant feature of traumatic disorders, including PTSD. Symptoms of PTSD include amnesia, excessive remembering in the form of flashbacks and inability to forget, and other memory disturbances. Like other symptoms of PTSD, memory disturbances may be apparent immediately following the traumatic event or after long periods of apparent adjustment. Epidemiological21 and clinical studies have documented a high prevalence of post-traumatic symptoms among sexually abused children and adult survivors of abuse, as well as non-sexually abused children (Kendall-Tackett, 1993). It is not however a universal or characteristic pattern and with many children and adults there may be no symptoms at all.
causes of memory loss for traumatic events
140	The primary cause of memory loss for traumatic events, especially over a long period of time, is ordinary forgetting. Some cognitive psychologists suggest that it is the only mechanism for the inability to recall a traumatic childhood memory (see Loftus, Garry and Feldman, 1994) and that there is no proof that any other process is involved. Other researchers suggest that such forgetting is not ordinary, and reflects the use of psychological mechanisms as coping strategies for the psychological stress associated with previous traumatic events (for example, see articles and studies by Williams). Several theoretical mechanisms in addition to repression are suggested as the cause of partial or full memory loss of traumatic events. It is possible that a variety of mechanisms, including those which operate for non-traumatic memory loss, may all operate to some degree in respect of traumatic memories.
141	There are a number of difficulties in attempting to demonstrate that something other than ordinary forgetting causes a loss of traumatic memories. Caution must always be exercised in using patients’ retrospective reports as sources for conclusions about the actual prior state of their memories; the primary value of such reports is documenting the frequency with which patients believe that their memories were previously unavailable. There are also ethical and practical limitations in setting up experimental research when part of a theory is that it is the traumatic nature of the event which causes the memory loss.
Repression
142	Authors and judges use general terms which may (or may not) be intended to include repression as the primary cause of memory loss eg, “repressed memory”, “false memory syndrome”, “repressed memory syndrome”, “suppressed memory”, “false negative memory”. The term repression was originally coined by Freud; however, he used a range of definitions (for a comprehensive discussion see Erdleyi, 1990). The varying definitions have influenced conclusions about how often repression is thought to occur. Corballis, an experimental psychologist and professor at Auckland University, has written that the concept of repression implies that certain memories are rendered inaccessible by virtue of their traumatic or unpleasant nature (1995:40). In a review of experimental research on repression, Holmes decided to determine what the modern conventional usage of the term repression was. He found that it accorded with the general definition given by Corballis (1990:85–86).
143	In Holmes’ view the concept of repression has three separate elements:
•	the selective forgetting of information or events that cause the individual pain;
•	the lack of voluntary control;
•	the repressed information is not lost but instead is stored in the unconsciousness and can be returned to consciousness if the anxiety that is associated with the memory is removed.
Confusion may be caused because some theorists include within this definition mechanisms such as suppression or denial which involve voluntary or deliberate forgetting of the information or event.
144	Loftus (1993) has written that numerous clinical examples fitting the repression/recovery model can be found in psychological literature. For example, Schuker (1979) described a woman who entered psychotherapy for chronic insomnia, low self-esteem, and other problems and recovered memories of her father sexually assaulting her. However, Loftus also points out that to some psychologists such clinical accounts remain unconvincing in terms of proving the existence of repression. While in those cases the memory may have been forgotten and then later suddenly remembered, and they may be reliable memories, they do not of themselves validate the repression theory.
145	In a review of 60 years of controlled experimental research Holmes (1990) concluded that there was no support for the concept of repression. In order to demonstrate experimentally that repression has caused memory loss (and then later recovery), an experiment has to show that the forgetting of the traumatic event was not caused by ordinary forgetting. It may be impossible to demonstrate repression of traumatic events experimentally because of ethical and practical limitations of such research on trauma and memory. It is also difficult to find researchable real-life opportunities for investigating recovered memories of childhood sexual abuse. Childhood sexual abuse is often secretive, private, often repetitive, and frequently occurs in the hands of a caregiver with whom the child is likely to need to maintain an attachment. The child is alone in dealing with consequences of abuse and forced to carry on an otherwise “normal” relationship with the perpetrator.
146	Pope and Hudson (1995) reviewed four clinical studies in an attempt to determine whether there was evidence for the existence of repression. According to their review, a study had to meet two requirements in order to reject the hypothesis that repression does not occur: (1) confirm that the traumatic abuse actually occurred (2) demonstrate that the individuals actually developed amnesia of non-biological origin, after the age of five (to eliminate childhood amnesia as a cause, see paras 155–156). The studies had a number of methodological weaknesses and Pope and Hudson concluded that the evidence was insufficient to permit the conclusion that individuals can “repress” memories of childhood sexual abuse. Others have argued that their conclusion is based on a false premise that the absence of proof is equivalent to the proof of absence. A more recent review by Pope, Hudson, Bodkin and Oliva (1998) also concludes that prospective studies fail to demonstrate that individuals can develop dissociative amnesia for traumatic events (but see the comments of Brewin, 1998).
147	Ceci, Huffman, Smith and Loftus state that most instances of forgetting of early childhood sexual abuse are due to ordinary forgetting, or childhood amnesia (see paras 155–156), or the way the respondent interpreted the question. The most prudent reading of the psychological literature is that repression of memories of sexual abuse may occur, but not as frequently as indicated in the four studies reviewed by Pope and Hudson (Ceci, Huffman, Smith and Loftus, 1996:241). According to Corballis it remains conceivable, if unproven, that repression is a subtle and perhaps rare phenomenon and that it might apply to some kinds of events such as sexual abuse more readily than it applies to others (1995:40). Baddeley, in Human Memory: Theory and Practice (1997) concludes that it seems unlikely that repression is one of the major causes of everyday forgetting (280–281).
Dissociation
148	Dissociation refers to the theoretical process where event memory has been compartmentalised (dissociated) so that certain events are recalled only when the individual is in a particular state of mind. The individual’s state of mind determines the nature of the retrieval cues that are formed, and hence influences the success or failure of a retrieval attempt. In extreme instances, this condition may be called dissociative identity disorder (also known as multiple personality disorder), in which different “personalities” are amnesic to each other’s experiences. The definition of dissociation is not settled however. While dissociative disorders are a recognised clinical phenomenon, included in the DSM IV, Spanos (1994) argues that there is evidence that dissociation, multiple personality disorder and the like are culturally-driven and socially constructed suggestions.
recall of childhood traumatic events 
Recall
149	It is a well-established phenomenon in laboratory studies of memory that not all memories (non-traumatic and traumatic) are accessible or available for recall under all conditions. A good deal of research has been dedicated to demonstrating the effectiveness of different kinds of cues and contexts on memory retrieval. While successful recall of memories can and does occur, there is no strong evidence to suggest that all memories are potentially available for recall or “recovery”.
150	It is generally agreed that it is possible for some adults who experienced childhood sexual abuse to recall memories of abuse, after a period of forgetting, given the appropriate cues. There are documented cases of delayed recall or recovery of memories of abuse or other trauma which occur “spontaneously” ie, without clinical intervention. There are also cases where memories have not been recovered until a person is in therapy, sometimes initially for something unrelated to the sexual abuse.
151	A range of studies have reported a variety of cues for retrieving memories of childhood sexual abuse. The studies range from random surveys of general populations to studies of clients in therapy, sometimes specifically for sexual abuse. In many of those studies therapy was not typically reported as a trigger for recall of the memory of abuse. All of the studies have some methodological weaknesses. One of the most recent and more methodologically sound studies (Elliott, 1997) found in a random survey of the general population that the media acted as a cue in 54 percent of cases, a similar experience in 37 percent of cases, talking with a family member in 37 percent of cases, and psychotherapy in 14 percent of cases (the lowest percentage).
152	For some people forgetting and remembering occurs in cycles. Many women in Hewson’s (1996) research interviews discovered that they had previously recalled an event when they told friends or family of their “newly” recovered memory. Others found details of “new” memories in diaries written during the years they thought they had not remembered.
153	Harvey and Herman (1996:29) identified three general patterns of recall from studies of their clients (sexual abuse survivors):
•	relatively continuous and complete recall of childhood abuse experiences coupled with changing interpretations (delayed understanding);
•	partial amnesia for abuse events, accompanied by a mixture of delayed recall and delayed understanding; 
•	delayed recall following a period of profound and pervasive amnesia.
These are empirical observations based on case studies. Herman and Harvey did not document the frequency of these recall patterns or document any corroboration of the memories.
154	According to Schooler, recovered memories of sexual abuse have parallels with veterans’ delayed “reactivations” of memories of traumatic experiences:
•	both correspond to troubling events for which the person would feel embarrassed or ashamed;
•	the person may go for periods in which they do not discuss the trauma or show direct evidence of being troubled by it;
•	in both a triggering event that shared some similarity to the alleged traumatic event produces an onrush of emotion associated with the traumatic event;
•	after the triggering event, the individual begins discussing the traumatic experience (1996:287–289).
Childhood amnesia
155	Most research since the early 20th century has confirmed that adults rarely verbally recall events that occurred before the age of 3 or 4 due to the phenomenon of “childhood amnesia”. Children can learn and remember from their earliest months of life but, because a person’s autobiographical memory system is not fully functioning until the age of 2 or 3, or sometimes later, these memories remain beyond adult awareness and so cannot be expressed verbally. Even memories from the first 5 or 6 years are frequently quite spartan and rare. At present there is no empirical evidence that memories from birth up to the second year of life are ever accessible for later verbal recall. Be that as it may, even such inaccessible experiences (implicit memories) may still have implications for later behaviour and even psychopathology.
156	Recent debate has focussed on whether some memories are actually available from earlier in childhood, from between the ages of 2 and 3, contrary to what earlier research has suggested. Usher and Neisser (1993) found a younger age of recall of between 2 and 3 years old for events such as death of a family member and birth of a younger sibling, although the memories (corroborated by family members) were still sparse. However, aspects of the methodology of their study and their conclusions from their data are problematic (see eg, Loftus, 1993a; Eacott and Crawley, 1998). A more recent study by Eacott and Crawley (1998) has attempted to overcome these methodological problems, and replicate the results of Usher and Neisser’s study with certain additional controls. The authors confirmed both that an event which occurs when a person is younger than 3 years old may be recalled in adulthood, and that there appears to be a steep onset of childhood amnesia for events occurring prior to the age of 2 and-a-half years old (32). Again, however, as the authors themselves acknowledge, aspects of their study can be criticised on methodological grounds. Further research is required before any firm conclusions about the precise age of earliest memories can be drawn.
Reliability
157	There is anecdotal evidence about the recovery of memories which have later been corroborated. Some cases have been published in the literature eg, Mack (1980) cited by Loftus (1993b). There is also anecdotal evidence that an important trauma can be remembered incorrectly or forgotten. Current denials of those accused of sexual abuse are not proof that the allegations are false. Nor are recantations of allegations of sexual abuse proof that they are false. Individuals with abuse histories frequently vacillate between denying and accepting that the abuse occurred and often report intense attempts to convince themselves that the abuse did not happen, preferring to believe that it was all unreal. Individuals who are abused may be eager to accept a suggestion that their memories are false.
158	Williams’ prospective study addressed the accuracy of adult memories of childhood events in general (see para 135). She found that recovered memories of childhood sexual abuse reported by adults can be quite consistent with contemporaneous documentation of the abuse. Further, such memories were no less accurate than the memories of other adults who had been sexually abused as children and who had always had a memory of the abuse. Dalenberg (1996), in a study of the accuracy of abuse memories specifically recovered in therapy, found that memories recovered in therapy were no more or less accurate than memories which the same individual had always remembered. Extensive corroborative evidence was collected by victims, alleged offenders and other family members. It is important to remember that all memories whether “recovered” or continuous (ie, they have always been remembered) may be fragile and subject to change over time.
Theories about the reliability of traumatic memories
159	Generally, it is agreed that memories for personal events are part of an individual’s episodic memory and autobiographical memory system. Episodic memories are the most malleable according to memory theory (see para 20), subject to ordinary causes of deterioration and forgetting. Some suggest that memories for traumatic events are encoded differently, that the memory is encoded permanently in a person’s mind available for later retrieval (eg Terr, 1996). However, research by Dalenberg indicates that there is no reason to believe at present that memories that have been unavailable for some time and then later recalled or “recovered”, are more or less accurate than memories that have been available all along for the same period (Dalenberg 1997, 452).
Further research
160	The New Zealand Psychological Society report states that further research is required on the impact of the specific nature of traumatic events, and events occurring subsequently, on the memory of the event (Corballis, Pile and McDougall 1997:315–316). It is likely that a number of variables have a significant influence on the clinical outcome following trauma and the memory of the traumatic experience. Such variables might include whether or not the traumatic event is life-threatening, the specific emotions following the experience, the coping strategies used by the individual during and after the event, the impact on family relationships, and whether the knowledge is public and is discussed or essentially private.
The creation of false memories
Definitions of false memory
161	There is a continuum of definitions about what constitutes a false memory. Sometimes memories contain incorrect details but are thematically true. For example, one client in Dalenberg’s study (1996) remembered her naked father shaking her when she was 16 and later recalled childhood sexual abuse. It was found that at age 12 she been shaken and threatened by her father when he was naked after walking in on him when he was having sex with a 16 year old. Conversely, some memories can be thematically false but contain true details, see eg, Loftus and Pickerell (1995).
162	The New Zealand Psychological Society report questions whether it is ever truly possible to create entirely false memories as it is likely that false memories must always relate to some aspect of the subject’s real experience (Corballis, Pipe, and McDougall, 1997:309). The research suggests that adults tend to try and relate suggested information about false events to events they can remember or know about. Many experimental psychologists believe that false memories can be suggested precisely because they are tailored to the idiosyncratic truths of a client.
Distinguishing true and false memories
163	It is impossible to distinguish a true memory from a false one once it is in a person’s autobiographical memory. It is dangerous to use indicators such as confidence, vividness and detail as indicating truth of the memory (see paras 71–75). While in some cases the content of a memory will indicate its veracity (eg, alien abduction), childhood sexual abuse does occur, as do some forms of “satanic ritual abuse”. Just because a memory is false does not mean that a person is deliberately lying. The person may honestly believe in the truth of their memory.
The misinformation effect
164	Over the past 20 years a considerable body of experimental research has revealed that adults are vulnerable to suggestive and leading questions (see paras 61–62). Compared with control groups, adults presented with misinformation frequently show impaired memory for original events, a finding called the “eye witness suggestibility effect” or the “misinformation effect”. It is pervasive and easy to induce. Although, it is also important to note that most of this research is based on laboratory experiments rather than real life events. They involve events witnessed by the subject rather than events experienced by the person directly or an action done to them, and the events are in themselves non-traumatic. Experimental research about the misinformation effect suggests that once the effect occurs, a subsequent attempt to uncover the original information (which may have been stored at the same time as the misinformation) will fail.
165	Adults are more prone to suggestion when there is:
•	substantial delay between the event in question and the presentation of the misinformation;
•	repetition of suggestions;
•	a perceived plausibility of the suggestions;
•	a perception that the source of the suggestions is authoritative.
However the misinformation effect does not occur under all conditions and the degree to which the misinformation effect occurs is highly variable. Salient and central events, for example, are known to be more resistant to suggestion than peripheral and less salient events, or aspects of an event. This is true for both adults and children. Further, not all people will be misled under these circumstances. With adults, for example, typically about 20 percent of experimental participants are misled (McClosky and Zaragoza, 1985; Loftus, 1975). See further chapters 3 and 4.
Implanting false memories 
166	It is possible to implant a false memory of an entire event in someone’s mind. The most famous anecdotal example is Piaget’s childhood memory of an attempted kidnapping which years later his nanny confessed to having manufactured. False memories can be induced under hypnosis. Laurence and Perry selected 27 highly hypnotisable individuals and during hypnosis suggested to them that they had been awakened by loud noises on a night during the previous week (Laurence and Perry, 1983, cited in Loftus, 1993b). Almost half of the subjects stated after hypnosis that the suggested events had taken place, and a number were certain about their memories. The basic findings of this study have been replicated in subsequent studies.
167	Experiments have demonstrated that it is possible to implant false memories of entire events by suggestion, although it may be difficult to accomplish (Geddis, 1995; Pezdek and Roe, 1996). The type of false memories which have been implanted in the minds of adults and children include a birthday party at age 5, attending a wedding at age 6, getting lost in a shopping mall at age 5, hurting a finger in a mouse trap, and being touched inappropriately by a paediatrician. Each of these false memories involved reasonably complex and detailed events. The results of some studies also suggest that individual differences may be relevant to whether or not a particular person is more susceptible to accepting that 
certain events suggested to them actually occurred (Loftus, 1997a:
S82–S83).
168	Suggestively planted memories are more likely to be successful for familiar events that are consistent with a person’s life experiences. Hyman, Husband and Billings found that a match between background knowledge and the false event was crucial for the creation of false recalls (1995:195). Pezdek had a zero percent success rate in attempting to implant a memory of receiving a rectal enema but some subjects falsely “remembered” being lost in a shopping mall 10 years ago (as described by Pope, 1996:963). While a rectal enema is a more traumatic event (and therefore one might be tempted to conclude that it is difficult to implant a false memory of a traumatic event), it is an unfamiliar event of which a person is unlikely to have knowledge or experience and therefore will be unable to imagine such a scenario. On the other hand, adults do have “script knowledge” of (and so can imagine) sexual activity. Loftus also suggests that false memory creation is most likely if there are social demands to remember, memory reconstructions are encouraged, and “reality monitoring” is discouraged (1997a:S84).
Implanting entirely false memories of traumatic events
169	There are anecdotal examples indicating that individuals are capable of “remembering” traumatic events that never happened to them. For example, young school pupils who did not witness a violent sniper shooting in their school playground had memories of the experience apparently created by exposure to the stories of those who experienced the trauma (Pynoos and Nader, 1989, cited by Loftus, 1993b).
170	Loftus also cites an anecdotal example of a memory of sexual abuse (as perpetrator) being successfully implanted in the mind of an alleged abuser. Paul Ingram was accused of extensive sexual abuse involving his own children and eventually confessed. There were some doubts about the techniques used by detectives and psychologists who interviewed Ingram over several months. A psychologist, Ofshe, attempted to implant a purely false memory of Ingram forcing his children to have sex in front of him. According to Loftus, Ofshe’s methods (including protracted imagining of events and an authority figure establishing the authenticity of those events) were successful in that Ingram eventually developed detailed memories and wrote a three page statement confessing in detail to the scene that Ofshe had invented. However, Gleaves (1994) describes Loftus’ conclusion as highly questionable. First, there were some significant factual inaccuracies in Loftus’ description of the sequence of events, including the timing of Ingram’s confessions. Second, according to Gleaves, the experiment conducted by Ofshe only proved that the children had not reported the event supposedly suggested by Ofshe.
Further research
171	The New Zealand Psychological Society report states that further research is needed to establish the conditions under which accurate versus false or distorted  memories of childhood events are most likely to occur, and in particular, whether each relates to special procedures used in therapy (Corballis, Pipe, and McDougall, 1997:316). 
sources of false memories
172	There are a range of possible external and internal sources for false memories. Therapy has been suggested as a primary source of false memories of sexual abuse in clients. However, memories for childhood sexual abuse (whether false or true) are recalled in a range of situations, least commonly in the course of therapy (see para 151). More research is required on the possible influence of other factors in creating false memories of sexual abuse, including sources such as the media, the client’s own beliefs in repressed memories, and family dynamics (see para 184).
Therapy
Goals of therapy
173	The purpose of therapy is to set goals with the client for change and to systematically work to achieve those goals within a context of reflection, discussion, negotiation, development of insight and encouragement to try out new strategies for thought and behaviour. Gaining an understanding of the client’s current problems is the goal, with an acknowledgement that the client’s narratives often approximate the historical truth rather than reflecting it exactly.
174	It may be argued that the nature of the therapeutic relationship precludes the necessity and appropriateness of determining the historical truth of a client’s accounts. The therapist’s role is to be compassionate, empathetic and supportive of the client’s situation, not to interrogate the client as to the verifiability of the statements and allegations they are making. However, therapists are ethically obliged to discuss with their clients the limitations of recalled information. Good practice for therapists working in this area is outlined by Corballis, Pipe and McDougall, 1997.
Therapists’ beliefs about repression and recovered memory
175	According to surveys conducted in the early 1990s in the USA, many therapists believed in the authenticity of the recovered memories of their clients. A survey by the British Psychological Society found that the majority of psychologists believed that recovered memories of sexual abuse were sometimes or usually “essentially accurate”. Two thirds of those surveyed also thought that false memories were possible, and more than one in seven believed that their clients had experienced false memories. 
176	An unpublished survey of clinical psychologists and psychotherapists in New Zealand, conducted at the end of 1996, found that 42 percent of clinical psychologists and 71 percent of psychotherapists surveyed believed that repressed or forgotten memories are often encountered in child sexual abuse cases (Pipe, Bottoms, Diviak and La Rooy, in preparation). Further, more than half of the New Zealand respondents had had experience of clients with repressed and recovered memories. In the majority of instances the clinicians and psychotherapists believed that the purportedly forgotten or repressed event had, indeed, occurred and that the memory really had been repressed or forgotten. 
Therapeutic techniques
177	Most clinicians recognise that all techniques can produce either therapeutic benefit or damage depending on the particular client and the manner, context, and timing with which the techniques are used. The meaning and impact of an intervention or therapy is determined not solely by the technique itself but by the context of its use. 
178	A number of therapeutic techniques have been categorised by experimental psychologists as memory recovery techniques, including:
•	guided imagery – an imaginative reconstruction of events guided by the therapist, usually used in conjunction with relaxation;
•	dream interpretation – for example, sifting through dreams for themes of sexual abuse;
•	journalling – journal writing where clients are requested to work at recovering detailed memories of abuse by writing about them;
•	working with physical symptoms that may be present based on the theory that the body signals what the mind may choose to forget;
•	hypnosis – the most common technique for recovered memory work is age regression where the therapist encourages the client to move back in time, stopping at an age that seems significant, and then describing the scenes, images, feelings that come to mind;
•	art therapy – it is theorised that, because severe trauma may reduce a client’s ability to attach words to internal experiences due to brain changes that may occur, non-verbal forms of expression may assist the client to access feelings and information about the trauma;
•	EMDR (eye-movement de-sensitisation and reprogramming) – a technique which reduces the discomfort associated with flashbacks and also may elicit memories of abuse and trauma.
While none of these techniques are taught in university clinical psychology courses as “memory recovery” techniques in New Zealand, it is possible that some psychologists may use these techniques for that purpose (although note the guidelines, para 180). 
179	In 1994 Poole, Lindsay, Memon and Bull conducted two surveys of highly trained psychologists in the USA and England to examine how frequently memory recovery techniques were being used. They concluded that if their sample was representative of clinicians on national registers in the United States and England, then “25 percent of the members of those organisations who conduct psychotherapy with adult female clients believe that recovering memories is an important part of therapy, think they can identify clients with hidden memories during the initial session, and use two or more techniques to help such clients recover suspected memories of CSA [childhood sexual abuse]”. An additional concern is that when such techniques are used it is very difficult to distinguish between clients who are accurately remembering events and those who are not (Lindsay and Read, 1994:304). The unpublished survey referred to in para 176, indicates that such techniques are used much less frequently in New Zealand. Fewer than 5 percent of the New Zealand respondents indicated that they had used hypnosis or age regression in the past five years and more than half explicitly indicated that techniques should never be used for memory recovery.
180	The Poole et al surveys have been widely cited and criticism of the study is continuing (for a recent series of articles arising out of criticism by Pope see the September 1997 and June 1998 issues of American Psychologist: Poole, Lindsay, Memon and Bull, 1997; Poole and Lindsay, 1998). Lindsay has stated that there is no reason to doubt that such techniques can enable people to recover accurate but long-forgotten memories of childhood traumas, but that unfortunately there are many reasons to believe (based on the experimental literature) that these same techniques may also enable non-abused clients to develop compelling false memories about childhood sexual abuse (1996:267). While “there is far too little data to make firm statements about the prevalence of ‘risky’ memory work” (Lindsay, personal communication cited by Olio, 1996:288) clinical psychologists have responded to these concerns by reviewing and formulating new guidelines for clinicians regarding the conduct of certain types of therapy.
Guidelines for clinicians
181	In 1995, a year when there was much publicity about “repressed” and “recovered” memory cases, the New Zealand Psychological Society devoted an issue of the Society’s journal The Bulletin to recovered memory, including an article on ethical practice and a copy of the Australian Psychological Society guidelines. Last year, a working party established by the New Zealand Psychological Society completed a report on memories of traumatic childhood events (see Corballis, Pipe and McDougall, 1997). It includes guidelines for clinical practice where memory for traumatic childhood events is an issue, and makes recommendations to the New Zealand Psychological Society regarding education of the profession and the public on such issues. 
182	Of the issues concerning the practitioner, the New Zealand report notes that it is especially important for practitioners to be aware that memory is a fragile, constructive process that need not provide accurate information about past events, especially if those events occurred a long time ago. The report recommends that “the active pursuit of memory should not be the goal of therapy” and that hypnosis not be used for memory recall since it is a “potential source of distortion and even of false memories” (Corballis et al, 1997:314). 
183	In 1997 the British Royal College of Psychiatrists issued guidelines to practitioners warning them not to use certain memory recovery techniques such as dream interpretation, regression therapy and hypnosis (Royal College of Psychiatrists’ Working Group on Reported Recovered Memories of Child Sexual Abuse). For various reasons the Working Group’s report was published separately (see Brandon, Boakes, Glaser and Green, 1998). The American Psychological Association has also voiced similar cautions about therapeutic techniques focused on memory recovery.
Other possible sources of false memories
184	In an unpublished conference paper, Gow writes that apart from Spanos, Multiple identities and false memories: A sociocognitive perspective (American Psychological Association, Washington, 1996), no directed research has been done to outline the role that external social factors might play in the creation of false memories, particularly of childhood sexual abuse. These include the role played by the media, media personages, psychics, self healing books, therapy groups, and the beliefs held by the public and self help groups about the recovery of memories and the accuracy of those memories. (Gow, 1997)
Further research
185	The New Zealand Psychological Society report suggests that a number of questions concerning clinical issues relating to memory might usefully be addressed to inform clinical practice:
•	interview techniques which can be used to explore the possibility of trauma, including abuse, without increasing the risk of suggestion or of compromising the client’s subsequent reports;
•	the relation between the memorability of an experience over time and symptomatology;
•	memory recovery and therapeutic outcome;
•	the prevalence of false memories, and conditions (such as family dynamics) under which false memories and reports of abuse are most likely to arise (Corballis, Pipe and McDougall, 1997:316).
“False memory syndrome” 
Definition and validity
186	False memory syndrome (FMS) is a lay term coined by the American FMS Foundation. FMS has been defined as
a condition in which a person’s identity and interpersonal relationships revolve around a traumatic memory (almost always of sexual abuse) which is objectively false but in which the person strongly believes. False memory syndrome is especially destructive because the person assiduously avoids confrontation with any evidence that might challenge the memory. Thus, it takes on a life of its own, encapsulated, and resistant to correction (Kihlstrom, 1996, cited by Pope, 1996:959).
Some clinicians suggest that people who recover memories which appear to be incorrect may in fact suffer from a personality disorder. A personality disorder according to the DSM-IV is “an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment”. According to the American FMS Foundation, counsellors and therapists use recovered memory techniques to elicit a history of childhood sexual abuse in their clients who have no actual history of abuse. Those clients then uncritically accept and come to believe in their illusory memories.
187	According to a number of psychologists, the term FMS was coined by the American FMS Foundation as part of an effort to undermine the credibility of complainants and to discredit therapists. Seventeen memory researchers co-authored a statement objecting to the term “false memory syndrome” as “a non-psychological term originated by a private foundation whose stated purpose is to support accused parents” (Pope, 1996:959). The idea of a false memory syndrome is not endorsed by any professional organisation (Seymour, 1995:29), nor is it included in the DSM-IV. Despite the fact that FMS is a lay concept, some commentators continue to use the term because it is a familiar one, even though they do not accept that it is a true psychological syndrome.
188	A field study by Hovdestad and Kristiansen (1996) examined whether false memory syndrome is a valid construct. Hovdestad and Kristiansen tested a community sample of women self-identified as survivors of “girlhood sexual abuse” for the cluster of symptoms said to be associated with FMS. The study indicated that participants who had recovered memories of their abuse (which was a necessary requirement for FMS), generally did not differ from participants with continuous memories on indicators for FMS. The cluster of symptoms said to be associated with FMS also typically failed to converge. Discussing their findings, the authors state that to the extent that the sample is representative of the population of women who might have FMS, the study reveals little evidence for the conceptualisation of FMS as articulated by FMS advocates. 
189	Recently, members of the British False Memory Society (BFMS) were surveyed on a number of matters including the accusations, characteristics of the accusing person, whether the memories were forgotten and then later “recovered”, the accusing person’s involvement in therapy at the time of making the accusations, and the consequences of the allegations (Gudjonsson, 1997). A similar New Zealand survey has been conducted on a self-selected sample of families where one family member had accused another of child sexual abuse; the survey participant claiming the accusation to be both false and based on a recovered memory (Goodyear-Smith, Laidlaw and Large, 1997; Goodyear-Smith, Laidlaw and Large, 1998). 
190	Such surveys have been criticised as suffering from several methodological weaknesses, particularly regarding the nature and prevalence of memories “recovered” in therapy. Andrews states that the preliminary findings of another study (Andrews, 1996) suggest that, in contrast to the BFMS survey results, only a minority of clients challenge family members, or break off contact (1997:20). Further, not all accusers allege recovered memories. In other words, the British survey may be unrepresentative of those individuals claiming recovered memories (1997:22). The information in the New Zealand survey was supplied by those accused of abuse or their supporters in the family. Information about the accuser and whether the accusation was in fact based on a recovered memory, were not verified. 
191	The American FMS Foundation states that tens of thousands of families are affected by false memory syndrome, however, there has been no independent or internal audit of records of the Foundation. The only independent audit of the BFMS found that only one quarter of their cases explicitly distinguish memories recovered from total amnesia (see “Recovered Memories: The Report of the Working Party of the British Psychological Society”, 1996).
I.	192	Hovdestad and Kristiansen concluded in their study that at most 3.9 percent of the women in their study with recovered memories could have been diagnosed with FMS, with an absolute upper limit of 13.6 percent (the rate equivalent to that among women with continuous memories). Even these estimates were liberal according to the authors. 
CONCLUSION
193	Human memory is fragile and subject to change. It is not
	comparable to a tape-recording that may be played back without error. It is important for the fact-finder (the judge or jury) to be aware of these limitations when evaluating the testimony of a witness. An understanding of the processes involved in memory prevents the fact finder from placing too much confidence in evidence that may not warrant it. Conversely, it will also prevent the fact-finder from under-valuing testimony that does not live up to unrealistic expectations set by the “tape recorder” paradigm. 
194	Credible identification evidence is of particular importance to the criminal justice system. Research indicates that incorrect identifications are a major factor in miscarriages of justice. In its draft Evidence Code, the Law Commission has drawn upon the research discussed in this paper to develop a regime that will help to exclude unreliable identification evidence. In proceedings where the case against the defendant depends wholly or substantially on identification evidence, the judge will continue to warn the jury of the special need for caution before convicting on the basis of such evidence. Such procedural safeguards, and the use of expert witnesses where their evidence can provide substantial help to the jury, should help to ensure that identification evidence is both reliable and properly evaluated.
195	The evidence of children often poses difficulties for the fact-finder. Historically, children have been seen as unreliable witnesses. Research discussed in this paper does not bear out that assessment. Consequently, the draft Evidence Code would re-enact the existing legislative stipulation that a judge must not instruct a jury that children generally have tendencies to invention or distortion and that their evidence must be scrutinised with special caution. The judge may, however, comment upon any expert evidence which bears on the subject.
196	Typically, a very young child will not provide much information in free recall, while the process of drawing out further information may influence what the child says, particularly as young children are more open to suggestion than adults. Psychologists have started to examine non-suggestive ways of encouraging young children to relate their memories. This research should inform the procedures for managing child witnesses both prior to and during the trial. It is recognised that the common method of giving evidence in an adversarial courtroom does not help young children to give the most complete and accurate account of past events of which they are capable. The draft Evidence Code provides alternative ways for children to give evidence which are intended to be less stressful on the child and to increase the amount of accurate information available to the court. The Code also provides a direction concerning the evidence of children under the age of 6 which the judge may give if he or she is of the opinion that the jury would be assisted by such guidance.
197	Evidence based on recovered memories of sexual abuse has been a controversial issue in recent years. The research surveyed suggests that sexual abuse and other traumatic events may be forgotten and then remembered again. The research also shows that false memories may be created by suggestion. Unfortunately, it is not possible to clearly distinguish between false and true memories on the basis of such characteristics as vividness of recall or confidence in the memory. 
198	There is no evidence that recovered memories are any more or any less reliable than apparently continuous memories, other things being equal. However, the issue has only been examined in two studies to date. The draft Evidence Code does not specifically address the issue of evidence based on recovered memories. The Law Commission considers that such evidence is best dealt with on a case by case basis, with the assistance of expert evidence where such evidence is likely to substantially assist the fact finder.
Bibliography
EYEWITNESS IDENTIFICATION
Texts
Brandon and Davies, Wrongful Imprisonment: Mistaken Convictions and their Consequences (George Allen & Unwin, London, 1973)
Bruce, Recognising Faces (Lawrence Erlbaum, Hove UK, 1988)
Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (Cambridge University Press, New York, 1995)
Davies, Ellis and Shepherd (eds), Perceiving and Remembering Faces (Academic Press, London, 1981)
Gudjonsson, The Psychology of Interrogations, Confessions and Testimony (John Wiley and Sons, Chichester, 1992)
Kapardis, Psychology and the Law (Cambridge University Press, New York, 1997)
Lloyd-Bostock and Clifford, Evaluating Witness Evidence (John Wiley and Sons Ltd, New York, 1983)
Loftus, Eyewitness Testimony (Harvard University Press, Cambridge, 1979/1996)
Loftus and Doyle, Eyewitness Testimony (2nd ed, Michie Co, Charlottesville, 1992)
Parker and Thomas, Legal Psychology: Eyewitness Testimony: Jury Behaviour (Thomas, Springfield, 1980)
Ross, Read and Toglia (eds), Adult Eyewitness Testimony: Current Trends and Developments (Cambridge University Press, New York, 1994)
Shepherd, Ellis and Davies, Identification Evidence: A Psychological Evaluation (Aberdeen University Press, Aberdeen, 1982)
Wells and Loftus (eds), Eyewitness Testimony: Psychological Perspectives (Cambridge University Press, Cambridge, 1984)
Wrightsman, Willis and Kassin (eds), On the Witness Stand: Controversies in the Courtroom (Sage Publications, California, 1987)
Articles
Bird, “The influence of the press 
upon the accuracy of report” (1927) Journal of Abnormal and Social Psychology 123
Bornstein, Liebel and Scarberry, “Repeated testing in eyewitness memory: a means to improve recall of a negative emotional event” (1998) Applied Cognitive Psychology 119
Bowers and Bekerian, “When will postevent information distort eyewitness testimony?” (1984) 69 Journal of Applied Psychology 466
Brigham and Barkowitz, “ Do they all look alike? The effect of race, sex, experience, and attitudes on the ability to recognize faces” (1978) Journal of Applied Social Psychology 306
Brimacombe (née Luus), Quinton, Nance and Garrioch, “Is age irrelevant? Perceptions of young and old adult eyewitnesses” (1997) 21 Law and Human Behavior 619
Brown, Deffenbacher and Sturgill, “Memory for faces and the circumstances of encounter” (1977) 62 Journal of Applied Psychology 311
Buckhout, “Eyewitness testimony” (1974) 231 Scientific American 23
Christianson, “Emotional stress and eyewitness memory: a critical review” (1992) 112 Bulletin of the Psychonomic Society 284
Clifford and Scott, “Individual and situational factors in eyewitness testimony” (1978) 63 Journal of Applied Psychology 352
Coxon and Valentine, “The effects of the age of eyewitnesses on the accuracy and suggestibility of their testimony” (1997) 11 Applied Cognitive Psychology 415
Cutler, Berman, Penrod and Fisher, “Conceptual, practical, and empirical issues associated with eyewitness identification test media” in Ross et al (eds), 1994
Cutler, Dexter and Penrod, “Expert testimony and jury decision making: an empirical analysis” (1989) 7 Behavioral Sciences and the Law 215
Cutler, Fisher and Chicvara, “Eyewitness identification from live versus videotaped lineups” (1989) 2 Forensic Reports 93
Cutler, Penrod and Dexter “Juror sensitivity to eyewitness identification evidence” (1990) 14 Law and Human Behavior 185
Cutler, Penrod and Martens, “The reliability of eyewitness identification: the role of system and estimator variables” (1987) 11 Law and Human Behavior 223
Cutler, Penrod and Stuve, “Juror decision making in eyewitness identification cases” (1988) 12 Law and Human Behavior 41
Davies, Ellis and Shepherd, “Face recognition accuracy as a function of mode of representation” (1978) 63 Journal of Applied Psychology 180
Davies, Shepherd and Ellis, “Effects of interpolated mugshot exposure on accuracy of eyewitness identification” (1979) 64 Journal of Applied Psychology 232
Deffenbacher, “A maturing research on the behaviour of eyewitnesses” (1991) 4 Applied Cognitive Psychology 377
Deffenbacher, “Eyewitness accuracy and confidence: can we infer anything about their relationship?” (1980) 4 Law and Human Behavior 243
Egan, Pittner and Goldstein, “Eyewitness identification: photograph vs live models” (1977) 1 Law and Human Behavior 199
Ellis, Shepherd and Davies, “An investigation of the use of the photo-fit techniques of recalling faces” (1975) 66 British Journal of Psychology 29
Fisher, McCauley and Geiselman, “Improving eyewitness testimony with the cognitive interview” in Ross et al (eds), 1994
Garry, Brown and DuBreuil “Womb with a view” in Payne and Conrad (eds) Intersections in Basic and Applied Memory Research (Lawrence Erlbaum Associates, New Jersey, 1997)
Goodman, Golding, Helgeson, Haith and Michelli, “When a child takes the stand: jurors’ perceptions of children’s eyewitness testimony” (1987) 11 Law and Human Behavior 27
Gonzalez, Ellsworth and Pembroke, “Response biases in lineups and showups” (1993) 64 Journal of Personality and Social Psychology 525
Gorenstein and Ellsworth, “Effect of choosing an incorrect photograph on a later identification by an eyewitness” (1980) 65 Journal of Applied Psychology 616
Greene, “Judge’s instruction on eyewitness testimony: evaluation and revision” (1988) 18 Journal of Applied Social Psychology 252
Gross and Hayne, “Eyewitness identifications by 5 to 6 year old children” (1996) 20 Law and Human Behavior 359
Hall, Loftus and Tousignant, “Postevent information and changes in recollection for natural events” in Wells and Loftus (eds), 1984
Hastie, Landsman and Loftus, “Eyewitness testimony: the dangers of guessing” (1978) 19 Jurimetrics Journal 1
Hernández-Fernaud and Alonso-Quecuty, “The cognitive interview and lie detection: a new magnifying glass for Sherlock Holmes?” (1997) 11 Applied Cognitive Psychology 55
Holdenson, “The admission of expert evidence of opinion as to the potential unreliability of evidence of visual identification” (1988) 16 Melbourne University LR 521
Hosch, Marchioni, Leippe and Cooper, “Victimization, self-monitoring, and eyewitness identification” (1984) 69 Journal of Applied Psychology 280
Johnson, Hastroudi and Lindsay “Source monitoring” (1993) 114 Psychological Bulletin 3
Katzev and Wishart, “The impact of judicial commentary concerning eyewitness identifications on jury decision making” (1985) 76 The Journal of Criminal Law and Criminology 733
Kirsch and Lynn, “Dissociation theories of hypnosis” (1998) 123 Psychological Bulletin 100
Lane, “Eyewitness identification: should psychologists be permitted to address the jury?” (1984) 75 The Journal of Criminal Law and Criminology 1321
Laughery, Alexander and Lane, “Recognition of human faces: effects of target exposure time, target position, pose position, and type of photograph” (1971) 55 Journal of Applied Psychology 477
Laughery and Fowler, “Sketch artist and identi-kit procedures for recalling faces” (1980) 65 Journal of Applied Psychology 307
Levane and Tapp, “The psychology of criminal identification: the gap from Wade to Kirby” (1973) 121 University of Pennsylvania LR 1079
Lezak, “Some psychological limitations on witness reliability” (1973) 20 Wayne LR 117
Lindholm, Christianson and Karlsson, “Police officers and civilians as witnesses: intergroup biases and memory performance” (1997) Applied Cognitive Psychology 431
Lindsay, Lea, Nosworthy, Fulford, Hector, LeVan and Seabrook, “Biased lineups: sequential presentation reduces the problem” (1991) 76 Journal of Applied Psychology 796
Lindsay, Lea and Fulford, “Sequential lineup presentation: technique matters” (1991) 76 Journal of Applied Psychology 741
Lindsay et al, “Simultaneous lineups, sequential lineups, and showups: eyewitness identification decisions of adults and children” (1997) 21 Law and Human Behavior 391
Lindsay and Wells, “What price justice? Exploring the relationship of lineup fairness to identification accuracy” (1980) 4 Law and Human Behavior 303
Lindsay and Wells, “Improving eyewitness identifications from lineups: simultaneous versus sequential lineup presentation” (1985) 70 Journal of Applied Psychology 556
Lindsay, Wells and O’Connor, “Mock-juror belief of accurate and inaccurate eyewitnesses: a replication and extension” (1989) 13 Law and Human Behavior 333
Lindsay, Wells and Rumpel, “Can people detect eyewitness-identification accuracy within and across situations?” (1981) 66 Journal of Applied Psychology 79
Loftus, “Reconstructing memory: the incredible eyewitness” (1974) 8 Psychology Today 116
Loftus, “Leading questions and the eyewitness report” (1975) 7 Cognitive Psychology 560
Loftus, “Impact of expert psychological testimony on the unreliability of eyewitness identification” (1980) 65 Journal of Applied Psychology 9
Luus and Wells, “Eyewitness identification and the selection of distracters for lineups” (1991) 15 Law and Human Behavior 43
Luus and Wells, “Eyewitness identification confidence” in Ross et al (eds), 1994
Maass and Kohnken, “Eyewitness identification: simulating the ‘weapon effect’” (1989) 13 Law and Human Behavior 397
MacLeod, Frowley and Shepherd, “Whole body information: its relevance to eyewitnesses” in Ross et al (eds), 1994
Malpass, “Effective size and defendant bias in eyewitness identification lineups” (1981) 5 Law and Human Behavior 299
Malpass and Devine, “Guided memory in eyewitness identification” (1981a) 66 Journal of Applied Psychology 343
Malpass and Devine, “Eyewitness identification: lineup instructions and the absence of the offender” (1981b) 66 Journal of Applied Psychology 483
Maulding and Laughery, “Composite production effects on subsequent facial recognition” (1981) 66 Journal of Applied Psychology 351
McAllister and Bregman, “Juror underutilization of eyewitness nonidentifications: a test of the disconfirmed expectancy explanation” (1989) 19 Journal of Applied Social Psychology 20
McConkey, “Hypnosis, memory and the ethics of uncertainty” (1995) 30 Australian Psychologist 1
Navon, “Selection of lineup foils by similarity to the suspect is likely to misfire” (1992) 16 Law and Human Behavior 575
Nolan and Markham, “The accuracy-confidence relationship in an eyewitness task: anxiety as a modifier” (1998) 12 Applied Cognitive Psychology 43
Noon and Hollin, “Lay knowledge of eyewitness behaviour: a British survey” (1987) 1 Applied Cognitive Psychology 143
O’Rourke, Penrod, Cutler and Stuve, “The external validity of eyewitness identification research: generalizing across subject populations” (1989) 13 Law and Human Behavior 385
Parker and Carranza, “Eyewitness testimony of children in target-present and target-absent lineups” (1989) 13 Law and Human Behavior 133
Parker and Ryan, “An attempt to reduce guessing behaviour in children’s and adults’ eyewitness identifications” (1993) 17 Law and Human Behavior 11
Pigott and Brigham, “Relationship between accuracy of prior description and facial recognition” (1985) Journal of Applied Psychology 547
Podd, “The effects of memory load and delay on facial recognition” (1990) 4 Applied Cognitive Psychology 47
Rahaim and Brodsky, “Empirical evidence versus common sense: juror and lawyer knowledge of eyewitness accuracy” (1982) 7 Law & Psychology Review 1
Rattner, “Convicted but innocent” (1988) 12 Law and Human Behavior 283
Re, “Eyewitness identification: why so many mistakes?” (1984) 58 Australian LJ 509
Read, “Understanding bystander misidentifications: the role of familiarity and contextual knowledge” in Ross et al (eds), 1994
Ross, Ceci, Dunning, and Toglia, “Unconscious transference and lineup identification: toward a memory blending approach” in Ross et al (eds), 1994
Saslove and Yarmey, “Long-term auditory memory: speaker identification” (1980) 65 Journal of Applied Psychology 111
Shepherd, Deregowski and Ellis, “A cross-cultural study of recognition memory for faces” (1974) 9 International Journal of Psychology 205
Shepherd and Ellis, “The effect of attractiveness on recognition memory for faces” (1973) 86 American Journal of Psychology 627
Steblay, “Social influence in eyewitness recall: a meta-analytic review of lineup instruction effects” (1997) 21 Law and Human Behavior 283
Thomson, “The realities of eyewitness identification” (1982) 14 Australian Journal of Forensic Sciences 150
Tollestrup, Turtle and Yuille, “Actual victims and witnesses to robbery and fraud: an archival analysis” in Ross et al (eds), 1994
Tulving and Thomson, “Encoding specificity and retrieval processes in episodic memory” (1973) 80 Psychological Review 352
van Koppen and Lochun, “Portraying perpetrators: the validity of offender descriptions by witnesses” (1997) 21 Law and Human Behavior 661
Weingardt, Toland and Loftus, “Reports of suggested memories: do people truly believe them?” in Ross et al (eds), 1994
Wells, “Verbal descriptions of faces from memory: are they diagnostic of identification accuracy?” (1985) 70 Journal of Applied Psychology 619
Wells and Bradfield, “Good, you identified the suspect: feedback to eyewitnesses distorts their reports of the witnessing experience” (1998) 83 Journal of Applied Psychology 360
Wells, Ferguson and Lindsay, “The tractability of eyewitness confidence and its implications for triers of fact” (1981) 66 Journal of Applied Psychology 688
Wells, Leippe and Ostrom, “Guidelines for empirically assessing the fairness of a lineup” (1979) 3 Law and Human Behavior 285
Wells, Lindsay and Ferguson, “Accuracy, confidence, and juror perceptions in eyewitness identification” (1979) 64 Journal of Applied Psychology 440
Wells, Lindsay and Tousignant, “Effects of expert psychological advice on human performance in judging the validity of eyewitness testimony” (1980) Law and Human Behavior 275
Wells and Ostrom, “Crime seriousness as a determinant of accuracy in eyewitness identification” (1978) 63 Journal of Applied Psychology 345
Wells, Seelau, Rydell, and Luus, “Recommendations for properly conducted lineup identification tasks” in Ross et al (eds), 1994
Woocher, “Did your eyes deceive you? Expert psychological testimony on the unreliability of eyewitness identification” (1977) 29 Stanford LR 969
Yarmey, Yarmey and Yarmey, “Accuracy of eyewitness identifications in showups and lineups” (1996) 20 Law and Human Behavior 459
Other papers
Brown, Seminar on Common Beliefs About Human Memory given at Victoria University of Wellington 25 September 1998
Shepherd and Deregowski, “Cross-cultural studies in cross-race recognition” (Unpublished Manuscript, University of Aberdeen)
CHILDREN’S MEMORIES
Texts and monographs
Brennan and Brennan, Strange Language – Child Victims under Cross-examination (2nd ed, Riverina Murray Institute of Higher Education, 1988)
Cashmore and Bussey, The Evidence of Children (Monograph Series No 11, Judicial Commission of New South Wales, Sydney, 1995)
Ceci and Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (American Psychological Association, Washington DC, 1995)
Ceci, Ross and Toglia (eds), Perspectives on Children’s Testimony (Springer-Verlag, New York, 1989)
Davies and Drinkwater (eds), The Child Witness: Do The Courts Abuse Children? (British Psychological Society, Leicester, 1988)
Dent and Flin (eds), Children as Witnesses (John Wiley and Sons, Chichester, 1992)
Doris (ed), The Suggestibility of Children’s Recollections (American Psychological Association, Washington DC, 1991)
Geddis, The Child as a Witness in Allegations of Child Sexual Abuse (a resource document prepared for the Commissioner of Children, part of a series of occasional papers, 1995)
Goodman and Bottoms (eds), Child Victims, Child Witnesses: Understanding and Improving Testimony (The Guilford Press, New York, 1993)
Goodman, Taub, Jones, England, Port, Rudy and Prado, Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims (Monographs of the Society for Research in Child Development, 1992, 57 Serial No 229)
McGough, Child Witnesses: Fragile Voices in the American Legal System (Yale University Press, New Haven, 1994)
Spencer and Flin, The Evidence of Children: The Law and the Psychology (2nd ed, Blackstone Press, London, 1993)
Spencer, Nicholson, Flin and Bull, Children’s Evidence in Legal Proceedings: An International Perspective (Cambridge University Law Faculty, Cambridge, 1989)
Zaragoza, Graham, Hall, Hirschman and Ben-Porath (eds), Memory and Testimony in the Child Witness (Sage Publications, California, 1995)
Articles
Aschermann, Dannenberg and Schulz, “Photographs as retrieval cues for children” (1998) 12 Applied Cognitive Psychology 55
Anderson “Assessing the reliability of child testimony in sexual abuse cases” (1996) 69 Southern California LR 2117
Bessner, “The competency of the child witness: a critical analysis of Bill C-15” (1989) 31 Criminal Law Quarterly 481
Bjorklund and Schneider, “The interaction of knowledge, aptitude and strategies in children’s memory performance” (1996) 26 Advances in Child Development and Behaviour 59
Bruck, Ceci, Francoeur and Barr, “‘I hardly cried when I got my shot!’: influencing children’s reports about a visit to their pediatrician” (1995) 66 Child Development 193
Bruck, Ceci and Hembrooke, “Reliability and credibility of young children’s reports” (1998) 53 American Psychologist 136
Butler, Gross and Hayne, “The effect of drawing on memory performance in young children” (1995) 31 Developmental Psychology 597
Carter, Bottoms and Levine, “Linguistic and socioemotional influences on the accuracy of children’s reports” (1996) 20 Law and Human Behavior 335
Cashmore and Bussey, “Judicial perceptions of child witness competence” (1996) 20 Law and Human Behavior 313
Ceci and Bruck, “Suggestibility of the child witness: an historical review and synthesis” (1993) 113 Psychological Bulletin 403
Chi, “Knowledge structures and memory development” in Siegler (ed) Children’s Thinking: What Develops? (Lawrence Erlbaum, New Jersey, 1978)
Davies, “Assessing the evidence of children” (1996) 9 Practitioner’s Child Law Bulletin 80
Davies, Henderson and Seymour, “In the interests of justice?: the cross-examination of child complainants of sexual abuse in criminal proceedings” (1997) 4 Psychiatry, Psychology and the Law 217
Davies and Seymour, “Questioning child complainants of sexual abuse: analysis of criminal court transcripts in New Zealand” (1998) 5 Psychiatry, Psychology and the Law 47
Endres, “The suggestibility of the child witness: the role of individual differences and their assessment” (1997) 1 The Journal of Credibility Assessment and Witness Psychology 44
Everson and Boat, “Anatomical dolls in child sexual abuse assessments: a call for forensically relevant research” (1997) 11 Applied Cognitive Psychology S55
Garven, Wood, Malpass and Shaw, “More than suggestion: the effect of interviewing techniques from the McMartin Preschool case” (1998) 83 Journal of Applied Psychology 247
Geddis, Taylor and Henaghan, “Child sexual abuse (I): incidence, epidemiology, cause, diagnosis and effects – a critique of the literature” [1990] New Zealand Law Journal 371
Gee, Gregory and Pipe “What colour is your pet dinosaur?”: The impact of pre-interview training and question type on children’s answers” Criminological and Legal Psychology (in press)
Goodman, “Children’s testimony in historical perspective” (1984a) 40 Journal of Social Issues 9
Goodman, “The child witness: conclusions and future directions for research and legal practice” (1984b) 40 Journal of Social Issues 157
Goodman and Schaaf, “Over a decade of research on children’s eyewitness testimony: what have we learned, where do we go from here?” (1997) 11 Applied Cognitive Psychology S5
Goodman and Schwartz-Kennedy, “Why knowing a child’s age is not enough: influences of cognitive, social and educational factors on children’s testimony” in Dent and Flin (eds), 1992
Golding, Sanchez and Sego, “The believability of hearsay testimony in a child sexual assault trial” (1997) 21 Law and Human Behavior 299 
Gross and Hayne, “Eyewitness identifications by 5 to 6 year old children” (1996) 20 Law and Human Behavior 359
Gross and Hayne, “Drawing facilitates children’s verbal reports of emotionally laden events” (1998) 4 Journal of Experimental Psychology: Applied 163
Gudjonsson, “Suggestibility and compliance among alleged false confessors and resisters in criminal trials” (1991) 31(2) Medicine, Science and the Law 147
Gudjonsson and Gunn, “The competence and reliability of a witness in a criminal court: a case report” (1982) 141 British Journal of Psychiatry 624
Hamblin and Levine, “The legal implications and emotional consequences of sexually abused children testifying as victim-witnesses” (1997) 21 Law and Psychology Review 139
Haugaard, Reppucci, Laird and Nauful, “Children’s definitions of the truth and their competency as witnesses in legal proceedings” (1991) 15 Law and Human Behavior 253
Henaghan, Taylor and Geddis, “Child sexual abuse (III): child witnesses and the rules of evidence” [1990] New Zealand Law Journal 425
Kobasigawa, “Utilisation of retrieval cues by children in recall” (1974) 45 Child Development 127
Kobasigawa, “Retrieval strategies in the development of memory” in Kail and Hagen (eds) Perspectives on the Development of Memory and Cognition (Lawrence Erlbaum, New Jersey, 1997)
Loftus and Davies, “Distortions in the memory of children” (1984) 40 Journal of Social Issues 51 
MacDonald and Hayne, “Child-initiated conversations about the past and memory performance by pre-schoolers” (1996) 11 Cognitive Development 421
Memon and Vartoukian, “The effects of repeated questioning on young children’s eyewitness testimony” (1996) 87 British Journal of Psychology 403
Morton, “When can lying start?” in Davies and Drinkwater (eds), The Child Witness – Do the Courts Abuse Children? (British Psychological Society, Leicester, 1988) 
Myers, “New era of scepticism regarding children’s credibility” (1995) 1 Psychology, Public Policy and Law 387
Myers, “A decade of international legal reform regarding child abuse investigation and litigation: steps toward a child witness code” (1996) 28 Pacific Law Journal 169
Myers, Saywitz and Goodman, “Psychological research on children as witnesses: practical implications for forensic interviews and courtroom testimony” (1996) 28 Pacific Law Journal 3
Pezdek and Roe, “The suggestibility of children’s memory for being touched: planting, erasing and changing memories” (1997) 21 Law and Human Behavior 95
Pipe, “Children’s eyewitness memory” (1996) 25 New Zealand Journal of Psychology 36
Pipe and Wilson, “Cues and secrets: influences on children’s event reports” (1994) 30 Developmental Psychology 515
Poole and Lindsay, “Interviewing pre-schoolers: effects of non-suggestive techniques, parental coaching and leading questions on reports of non-experienced events” (1995) 60 Journal of Experimental Child Psychology 129
Poole and White, “Two years later: effects of question repetition and retention interval on the eyewitness testimony of children and adults” (1993) 29 Developmental Psychology 844
Priestley and Pipe, “Using toys and models in interviews with young children” (1997) 11 Applied Cognitive Psychology 69
Rawls, “The veracity of young children’s disclosures in relation to section 23G of the Evidence Amendment Act” New Zealand Law Foundation Research: Final Report 1996
Ricci, Beal and Dekle, “The effect of parent versus unfamiliar interviewers on children’s eyewitness memory and identification accuracy” (1996) 20 Law and Human Behavior 483
Saywitz and Moan-Hardie, “Reducing the potential for distortion of childhood memories” (1994) 3 Consciousness and Cognition 408
Saywitz and Nathanson, “Children’s testimony and their perceptions of stress in and out of the courtroom” (1993) 17 Child Abuse and Neglect 613
Schmidt and Brigham, “Jurors’ perceptions of child victim-witnesses in a simulated sexual abuse trial” (1996) 20 Law and Human Behavior 581
Shrimpton, Oates and Hayes, “Children’s memory of events: effects of stress, age, time delay and location of interview” (1998) 12 Applied Cognitive Psychology 133
Sutherland, Gross and Hayne, “Adult’s understanding of young children’s testimony” (1996) 81 Journal of Applied Psychology 777
Taylor, Geddis and Henaghan, “Child sexual abuse (II): obtaining accurate testimony from child victims” [1990] New Zealand Law Journal 388
Walker, “Questioning young children in court” (1993) 17 Law and Human Behavior 59
White, Leichtman, and Ceci, “The good, the bad, and the ugly: accuracy, inaccuracy, and elaboration in preschoolers’ reports about a past event” (1997) 11 Applied Cognitive Psychology S37
“RECOVERED” MEMORIES
Texts
Baddeley, Human Memory (Allyn and Bacon, Boston, 1998)
Love and Whittaker (eds), Practice Issues for Clinical and Applied Psychologists in New Zealand (New Zealand Psychological Society, 1997)
Pezdek and Banks (eds), The Recovered Memory/False Memory Debate (Academic Press, San Diego, 1996)
Schacter (ed), Memory Distortion: How Minds, Brains and Societies Reconstruct the Past (Harvard University Press, London, 1995)
Articles
Alpert, “Professional practice, psychological science, and the recovered memory debate” in Pezdek and Banks (eds), 1996
Anderson, Martin, Mullen, Romans and Herbison, “Prevalence of child sexual abuse experiences in a community sample of women” (1993) 32 Journal of American Academy of Child & Adolescent Psychiatry 911
Andrews, “Can a survey of British false memory society members reliably inform the recovered memory debate?” (1997) 11 Applied Cognitive Psychology 19
Andrews, Morton, Bekerian, Brewin, Davies and Mollon, “The recovery of memories in clinical practice: experiences and beliefs of British Psychological Society practitioners” The Psychologist, May 1995, 209
Brandon, Boakes, Glaser and Green, “Recovered memories of childhood sexual abuse” (1998) 172 British Journal of Psychiatry 296
Brewin, “Commentary: questionable validity of ‘dissociative amnesia’ in trauma victims” (1998) 172 British Journal of Psychiatry 216
Briere and Conte, “Self-reported amnesia for abuse in adults molested as children” (1993) 6 Journal of Traumatic Stress 21
Broan, “On the construction of truth and falsity: whose memory, whose history” in Pezdek and Banks (eds), 1996
Broughton, “The memory debate in perspective – and some future directions” (1995) 2(1) Psychiatry, Psychology and Law 91
Cameron, “Comparing amnesic and nonamnesic survivors of childhood sexual abuse: a longitudinal study” in Pezdek and Banks (eds), 1996
Ceci, Huffman, Smith and Loftus, “Repeatedly thinking about a non-event: source misattributions among preschoolers” in Pezdek and Banks (eds), 1996
Christianson and Loftus, “Remembering emotional events: the fate of detailed information” (1991) 5 Cognition and Emotion 81
Corballis, “The repression and recovery of memory: a Freudian flip” The Bulletin (NZ Psychological Society) No 84, March 1995, 37
Corballis, Pipe and McDougall, “Memory of traumatic childhood events” in Love and Whittaker (eds), 1997
Dalenberg, “Accuracy, timing and circumstances of disclosure in therapy of recovered and continuous memories of abuse” (1996) 24 Journal of Psychiatry & Law 229
Dalenberg, “The predictions of accurate recollections of trauma” in Read and Lindsay (eds), Recollections of Trauma (Plenum Press, New York, 1997)
Danaan, “Justice meets Mnemosyne: the law and women’s memories of child sexual assault” (1996) 7 Australian Feminist LJ 151
Eacott and Crawley, “The offset of childhood amnesia: memory for events that occurred before age 3” (1998) 127 Journal of Experimental Psychology: General 22
Elliott, “Traumatic events: prevalence and delayed recall in the general population” (1997) 65 Journal of Consulting and Clinical Psychology 811
Elliott and Briere, “Posttraumatic stress associated with delayed recall of sexual abuse: a general population study” (1995) 8 Journal of Traumatic Stress 629
Erdleyi, “Repression, reconstruction, and defense: history and integration of the psychoanalytic and experimental frameworks” in Singer (ed), Repression and Dissociation (University of Chicago Press, Chicago, 1990)
Freckelton, “Repressed memory syndrome: counterintuitive or counterproductive?” (1996) 20 Criminal LJ 7
Garry, Manning, Loftus and Sherman, “Imagination inflation: imagining a childhood event inflates confidence that it occurred” (1996) 3 Psychonomic Bulletin & Review 208
Geddis, “Recovered memory syndrome”, a resource document prepared for the Commissioner of Children, part of a series of occasional papers, 1995
Gleaves, “On the reality of repressed memories” American Psychologist, May 1994, 440; includes comments following the article from other psychologists
Goodman, Quas, Batterman-Faunce, Riddlesburger and Kuhn, “Predictors of accurate and inaccurate memories of traumatic events experienced in childhood” in Pezdek and Banks (eds), 1996
Goodyear-Smith, “Review of ‘Was Eve merely framed; or was she forsaken?’” [1995] NZLJ 230
Goodyear-Smith, Laidlaw and Large, “Surveying families accused of childhood sexual abuse: a comparison of British and New Zealand results” (1997) 11 Applied Cognitive Psychology 31
Goodyear-Smith, Laidlaw and Large, “Parents and other relatives accused of sexual abuse on the basis of recovered memories: a New Zealand family survey” (1998) 111 New Zealand Medical Journal 225
Gow, “The complexity of researching into ‘false memory syndrome’” (delivered at the New Zealand Psychological Society conference 30 August–4 September 1997)
Gudjonsson, “Accusations by adults of childhood sexual abuse: a survey of the members of the British False Memory Society (BFMS)” (1997) 11 Applied Cognitive Psychology 3
Hampton, “Recovered memory syndrome v false memory syndrome or in repression and revenge, where resides justice?” [1995] NZLJ 154
Harvey and Herman, “Amnesia, partial amnesia, and delayed recall among adult survivors of childhood trauma” in Pezdek and Banks (eds), 1996
Hewson, “The false memory debate(s)” The Bulletin (NZ Psychological Society) No 90 December 1996, 31
Holmes, “The evidence for repression: an examination of sixty years of research” in Singer (ed) Repression and Dissociation: Implications for Personality, Theory Psychopathology and Health (University of Chicago Press, 1990)
Hovdestad and Kristiansen, “A field study of ‘false memory syndrome’: construct validity and incidence” (1996) 24 Journal of Psychiatry & Law 299
Howe, Courage and Peterson, “How can I remember when ‘I’ wasn’t there: long-term retention of traumatic experiences and emergence of the cognitive self” in Pezdek and Banks (eds), 1996
Hyman, Husband and Billings “False memories of childhood experiences” (1995) 9 Applied Cognitive Psychology 181
Kendall-Tackett, Williams and Finkelhor, “Impact of sexual abuse on children: a review and synthesis of recent empirical studies” (1993) 113 Psychological Bulletin 164
Key, Warren and Ross, “Research note: perceptions of repressed memories: a reappraisal” (1996) 20 Law and Human Behavior 555
Kihlstrom, “The trauma-memory argument and recovered memory therapy” in Pezdek and Banks (eds), 1996
Krystal, Southwick and Charney, “Post traumatic stress disorder: psychobiological mechanisms of traumatic remembrance” 150 in Schacter (ed), 1995
Lindsay, “Contextualising and clarifying criticisms of memory work in psychotherapy” in Pezdek and Banks (eds), 1996
Lindsay and Read, “Psychotherapy and memories of childhood sexual abuse: a cognitive perspective” (1994) 8 Applied Cognitive Psychology 281
Loftus, “Leading questions and the eyewitness report” (1975) 7 Cognitive Psychology 560
Loftus, “Desperately seeking memories of the first few years of childhood: the reality of early memories” (1993a) 122 Journal of Experimental Psychology: General 274 
Loftus, “The reality of repressed memories” (1993b) 48 American Psychologist 518
Loftus, “Creating childhood memories” (1997a) 11 Applied Cognitive Psychology S75
Loftus, “Repressed memory accusations: devastated families and devastated patients” (1997b) 11 Applied Cognitive Psychology 25
Loftus, Garry and Feldman, “Forgetting sexual trauma: what does it mean when 38% forget?” (1994) Journal of Consulting and Clinical Psychology 1177
Loftus and Ketcham, “The myth of repressed memory” (St Martin’s Griffin, New York, 1994)
Loftus and Loftus, “On the permanence of information stored in the human brain” (1980) 35 American Psychologist 409
Loftus and Pickerell, “The formation of false memories” (1995) 24 Psychiatric Annals 720
Loftus, Polonsky and Fullilove, “Memories of childhood sexual abuse: remembering and repressing” (1994) 18 Psychology of Women Quarterly 67
McConkey, “Hypnosis, memory and the ethics of uncertainty” (1995) 30 Australian Psychologist 1
McDowell and Swan, “Ethical practice: working with memory”, Bulletin of the NZ Psychological Society No 84 March 1995, 56
McLosky and Zaragoza, “Misleading postevent information and memory for events: arguments and evidence against memory impairment hypotheses” (1985) 114 Journal of Experimental Psychology: General 1
Midson, “How psychologists can assist in the recovered memory arena” (1996) 4 Waikato LR 167
Olio, “Are 25% of clinicians using potentially risky therapeutic practices? A review of the logic and methodology of the Poole, Lindsay et al study” (1996) 24 Journal of Psychiatry & Law 277
Pezdek and Roe, “Memory for childhood events: how suggestible is it?” in Pezdek and Banks (eds), 1996
Pipe, “Remembering in extraordinary contexts”, The Bulletin (NZ Psychological Society) No 84 March 1995, 43
Poole and Lindsay, “Uses and abuses of Poole, Lindsay, Memon and Bull’s (1995) data” (1998) 53 American Psychologist 681
Poole, Lindsay, Memon and Bull, “Psychotherapy and the recovery of memories of childhood sexual abuse: US and British practitioners’ opinions, practices, and experiences” (1995) 63 Journal of Clinical and Consulting Psychology 426
Poole, Lindsay, Memon and Bull, “Did Pope (1996) read a different Poole, Lindsay, Memon and Bull (1995)?” (1997) 52 American Psychologist 990
Pope, “Memory, abuse, and science: questioning claims about the false memory syndrome epidemic” (1996) 51 American Psychologist 957
Pope and Hudson, “Can memories of childhood sexual abuse be repressed?” (1995) 25 Psychological Medicine 121
Pope, Hudson, Bodkin and Oliva, “Questionable validity of ‘dissociative amnesia’ in trauma victims” (1998) 172 British Journal of Psychiatry 210
Read, “Child abuse and psychosis: why we deny the facts” Bulletin of the NZ Psychological Society No 84 March 1995, 48
Roe and Schwartz, “Characteristics of previously forgotten memories of sexual abuse: a descriptive study” (1996) 24 Journal of Psychiatry & Law 189
Scheflin and Brown, “Repressed memory or dissociative amnesia: what the science says” (1996) 24 Journal of Psychiatry & Law 143
Schooler, “Seeking the core: the issues and evidence surrounding recovered accounts of sexual trauma” in Pezdek and Banks (eds), 1996
Seymour, “Memory and child abuse”, The Bulletin (NZ Psychological Society) No 84 March 1995, 28
Seymour, “Memory and childhood abuse: the psychological evidence” (1996) 4 Waikato LR 155
Spanos, “Multiple identity enactments and multiple personality disorder: a sociocognitive perspective” (1994) 116 Psychological Bulletin 143
Terr, “True memories of childhood trauma: flaws, absences, and returns” in Pezdek and Banks (eds), 1996
Toglia, “Recovered memories: lost and found?” in Pezdek and Banks (eds), 1996
Usher and Neisser, “Childhood amnesia and the beginnings of memory for four early life events” (1993) 122 Journal of Experimental Psychology: General 155
Wagenaar and Groeneweg, “The memory of concentration camp survivors” (1990) 4 Applied Cognitive Psychology 77
Williams, “Recall of childhood trauma: a prospective study of women’s memories of child sexual abuse” (1994) 62 Journal of Consulting and Clinical Psychology 1167
Williams, “What does it mean to forget child sexual abuse? A reply to Loftus, Garry, and Feldman (1994)” (1994) 62 Journal of Consulting and Clinical Psychology 1182
Williams, “Recovered memories of abuse in women with documented child sexual victimisation histories” (1995) 8 Journal of Traumatic Stress 649
Other papers
Australian Psychological Society, “Guidelines relating to the reporting of recovered memories” The Bulletin (NZ Psychological Society) No 84 March 1995, 61
American Psychological Association, “Interim report of the working group on investigation of memories of childhood sexual abuse” in Pezdek and Banks (eds), 1996
Cash and Moss (1972, April). Optimum recall period for reporting persons injured in motor vehicle accidents (National Center for Health Statistics. Vital and Health Statistics. Series 2, No. 50. DHEW Publication No. HSM 72–1050. Health Services and Mental Health Administration Washington, DC: U.S. Government Printing Office
Pipe, Bottoms, Diviak and La Rooy, “Memories of abuse: a New Zealand survey of clinicians’ and therapists’ experiences and beliefs”, an Unpublished Survey
“Recovered memories: the report of the Working Party of the British Psychological Society” in Pezdek and Banks (eds), 1996
Royal College of Psychiatrists’ Working Group on Reported Recovered Memories of Child Sexual Abuse, “Recommendations for good practice and implications for training, continuing professional development and research” (1997) 21 Psychiatric Bulletin 663
Theses
Browning, “Sensation or syndrome? Retrench or relax? Recovered Memory and New Zealand’s Search for Justice” LLB (Hons) dissertation, University of Otago, 1995
Midson, “Determining the truth in recovered memory cases” University of Waikato, 1996, MJur thesis
Other Law Commission publications:
Report series
nzlc r1	Imperial Legislation in Force in New Zealand (1987)
nzlc r2 	Annual Reports for the years ended 31 March 1986 and 31 March 1987 (1987)
nzlc r3	The Accident Compensation Scheme (Interim Report on Aspects of Funding) (1987)
nzlc r4 	Personal Injury: Prevention and Recovery (Report on the Accident Compensation Scheme) (1988)
nzlc r5	Annual Report 1988 (1988)
nzlc r6	Limitation Defences in Civil Proceedings (1988)
nzlc r7	The Structure of the Courts (1989)
nzlc r8	A Personal Property Securities Act for New Zealand (1989)
nzlc r9	Company Law: Reform and Restatement (1989)
nzlc r10	Annual Report 1989 (1989)
nzlc r11	Legislation and its Interpretation: Statutory Publications Bill (1989)
nzlc r12	First Report on Emergencies: Use of the Armed Forces (1990)
nzlc r13 	Intellectual Property: The Context for Reform (1990)
nzlc r14 	Criminal Procedure: Part One: Disclosure and Committal (1990)
nzlc r15 	Annual Report 1990 (1990)
nzlc r16 	Company Law Reform: Transition and Revision (1990)
nzlc r17(S) 	A New Interpretation Act: To Avoid “Prolixity and Tautology” (1990) (and Summary Version)
nzlc r18 	Aspects of Damages: Employment Contracts and the Rule in Addis v Gramophone Co (1991)
nzlc r19 	Aspects of Damages: The Rules in Bain v Fothergill and Joyner v Weeks (1991)
nzlc r20 	Arbitration (1991)
nzlc r21 	Annual Report 1991 (1991)
nzlc r22 	Final Report on Emergencies (1991)
nzlc r23 	The United Nations Convention on Contracts for the International Sale of Goods: New Zealand’s Proposed Acceptance (1992)
nzlc r24	Report for the period l April 1991 to 30 June 1992 (1992)
nzlc r25	Contract Statutes Review (1993)
nzlc r26	Report for the year ended 30 June 1993 (1993)
nzlc r27	The Format of Legislation (1993)
nzlc r28	Aspects of Damages: The Award of Interest on Money Claims (1994)
nzlc r29	A New Property Law Act (1994)
nzlc r30	Community Safety: Mental Health and Criminal Justice Issues (1994)
nzlc r31	Police Questioning (1994)
nzlc r32	Annual Report 1994 (1994)
nzlc r33	Annual Report 1995 (1995)
nzlc r34	A New Zealand Guide to International Law and its Sources (1996)
nzlc r35	Legislation Manual: Structure and Style (1996)
nzlc r36	Annual Report 1996 (1996)
nzlc r37	Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick (1997)
nzlc r38	Succession Law: Homicidal Heirs (1997)
nzlc r39	Succession Law: A Succession (Adjustment) Act (1997)
nzlc r40	Review of the Official Information Act 1982 (1997)
nzlc r41	Succession Law: A Succession (Wills) Act (1997)
nzlc r42	Evidence Law: Witness Anonymity (1997)
nzlc r43	Annual Report 1997 (1997)
nzlc r44	Habeas Corpus: Procedure (1997)
nzlc r45	The Treaty Making Process: Reform and the Role of Parliament (1997)
nzlc r46	Some Insurance Law Problems (1998)
nzlc r47	Apportionment of Civil Liability (1998)

nzlc r48	Annual Report 1998 (1998)
nzlc r49	Compensating the Wrongly Convicted (1998)
nzlc r50	Electronic Commerce Part One: A Guide for the Legal and Business Community (1998)
nzlc r51	Dishonestly Procuring Valuable Benefits (1998)
nzlc r52	Cross-Border Insolvency: Should New Zealand adopt the 
uncitral Model Law on Cross-Border Insolvency? (1999)
nzlc r53	Justice: The Experiences of Mäori Women : Te Tikanga o te Ture:
	Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei
nzlc r54 	Computer Misuse (1999)
Study Paper series
nzlc sp1 	Women’s Access to Legal Services
Preliminary Paper series
nzlc pp1 	Legislation and its Interpretation: The Acts Interpretation Act 1924 and Related Legislation (discussion paper and questionnaire) (1987)
nzlc pp2 	The Accident Compensation Scheme (discussion paper) (1987)
nzlc pp3 	The Limitation Act 1950 (discussion paper) (1987)
nzlc pp4 	The Structure of the Courts (discussion paper) (1987)
nzlc pp5 	Company Law (discussion paper) (1987)
nzlc pp6 	Reform of Personal Property Security Law (report by Prof J H Farrar and M A O’Regan) (1988)
nzlc pp7 	Arbitration (discussion paper) (1988)
nzlc pp8 	Legislation and its Interpretation (discussion and seminar papers) (1988)
nzlc pp9 	The Treaty of Waitangi and Mäori Fisheries – Mataitai: Nga Tikanga Mäori me te Tiriti o Waitangi (background paper) (1989)
nzlc pp10 	Hearsay Evidence (options paper) (1989)
nzlc pp11 	“Unfair” Contracts (discussion paper) (1990)
nzlc pp12 	The Prosecution of Offences (issues paper) (1990)
nzlc pp13 	Evidence Law: Principles for Reform (discussion paper) (1991)
nzlc pp14 	Evidence Law: Codification (discussion paper) (1991)
nzlc pp15 	Evidence Law: Hearsay (discussion paper) (1991)
nzlc pp16 	The Property Law Act 1952 (discussion paper) (1991)
nzlc pp17 	Aspects of Damages: Interest on Debt and Damages (discussion paper) (1991)
nzlc pp18 	Evidence Law: Expert Evidence and Opinion Evidence (discussion paper) (1991)
nzlc pp19 	Apportionment of Civil Liability (discussion paper) (1992)
nzlc pp20 	Tenure and Estates in Land (discussion paper) (1992)
nzlc pp21	Criminal Evidence: Police Questioning (discussion paper) (1992)
nzlc pp22	Evidence Law: Documentary Evidence and Judicial Notice (discussion paper) (1994)
nzlc pp23	Evidence Law: Privilege (discussion paper) (1994)
nzlc pp24	Succession Law: Testamentary Claims (discussion paper) (1996)
nzlc pp25	The Privilege Against Self-Incrimination (discussion paper) (1996)
nzlc pp26	The Evidence of Children and Other Vulnerable Witnesses (discussion paper) (1996)
nzlc pp27	Evidence Law: Character and Credibility (discussion paper) (1997)
nzlc pp28	Criminal Prosecution (discussion paper) (1997)
nzlc pp29	Witness Anonymity (discussion paper) (1997)
nzlc pp30	Repeal of the Contracts Enforcement Act 1956 (discussion paper) (1997)
nzlc pp31	Compensation for Wrongful Conviction or Prosecution 
(discussion paper) (1998)
nzlc pp32	Juries in Criminal Trials: Part One (discussion paper) (1998)
nzlc pp33	Defaming Politicians: A Response to Lange v Atkinson
(discussion paper) (1998)
nzlc pp34	Retirement Villages (discussion paper) (1998)
nzlc pp35	Shared Ownership of Land (discussion paper) (1999)
nzlc pp36	Coroners: A Review (discussion paper) (1999)

Endnotes
1 Paciocco and Stuesser, The Law of Evidence (Irwin Law, Ontario, 1996) 1. 
2 Létourneau and Cohen, "Codification and Reform: Some Lessons from the Canadian Experience" (1989) 10 Statute Law Review 183, 186; Salken, "To Codify or Not to Codify _ That is the Question: A Story of New York's Efforts to Enact an Evidence Code" (1992) 58 Brooklyn LR 641, 643. 
3 See also § 352 of the California Evidence Code and s 135 of the Evidence Act 1995 (Aust) which provides: 
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might 
(a) be unfairly prejudicial to a party; or 
(b) be misleading or confusing; or 
(c) cause or result in undue waste of time. 
4 Rule 403 of the United States Federal Rules of Evidence does not prevent the exclusion of defence evidence, yet there are no indications that it operates unfairly. Current New Zealand case law does allow editing of defendants' statements in certain situations, see for example, R v McCallum and Woodhouse (1988) 3 CRNZ 376 (CA), indicating that judges are able to appropriately balance the rights of defendants against the desirability of fair process. 
5 Dockray, "The Inherent Jurisdiction to Regulate Civil Proceedings" (1997) 113 LQR 120, 124, citing Darling Downs Investments Pty Ltd v Ellwood (1988) 80 ALR 203, 218. 
6 The presence of a jury may be material to exercising discretion if the evidence is significantly prejudicial. 
7 For example, it is argued in the latest edition of Garrow and Casey's Principles of the Law of Evidence (Butterworths, Wellington, 1996) 55 that this rule was altered by the House of Lords in R v Brophy [1982] AC 476 to the extent that the defendant's voir dire testimony can never be referred to at the trial proper. 
8 Friedman, "Confrontation Rights of Criminal Defendants" in Nijboer and Reintjes (eds), Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (Open University of the Netherlands, 1997) 533. 
9 R v Khan [1990] 2 SCR 531; R v Smith (1992) 15 CR (4th) 133 (Canada); R v Baker [1989] 1 NZLR 738 (CA); R v Bain [1996] 1 NZLR 129 (CA). 
10 Carter, "Hearsay: Whether and Whither?" (1993) 109 LQR 573; Palmer, "The Reliability-Based Approach to Hearsay" (1995) 17 Sydney LR 322; Zuckerman, "The Futility of Hearsay" [1996] Crim LR 1. 
11 The Law Commission (England and Wales), Evidence in Criminal Proceedings: Hearsay and Related Topics: A Consultation Paper (CP 138, HMSO, London, 1995) para 7.72; Scottish Law Commission, Evidence: Report on Hearsay Evidence in Criminal Proceedings (No 149, HMSO, Edinburgh, 1995) para 5.13; s 59(1) of the Evidence Act 1995 (Aust). 
12 See also the discussion in Evidence Law: Hearsay (NZLC PP15, 1991) paras 34 and 35. 
13 This position is consistent with the current definition of "unavailable" in s 2(2) of the Evidence Amendment Act (No 2) 1980. 
14 Protection of witnesses by granting anonymity is possible under ss 13A_13J of the Evidence Act 1908. It is intended that these sections will be re-enacted unamended as part of the Evidence Code. Sections 102_106 of the Code govern the use of alternative ways of giving evidence. 
15 This seminar series was funded by the New Zealand Law Foundation, administered by the New Zealand Law Society and was held in Auckland, Hamilton, Wellington, Christchurch and Dunedin in March 1998. 
16 See the discussion at paras 340_341. 
17 This commentator's submission was also published: Stevens and Olsen, "Law Commission Preliminary Papers 13_15 _ A commentary on the proposed reform of the Law of Evidence" [1992] NZLJ 30. 
18 For notice provisions in civil proceedings, see s 2 of the Civil Evidence Act 1995 (UK). In criminal proceedings, see s 67 of the Evidence Act 1995 (Aust); Rules 803(24) and 804(b)(5) of the United States Federal Rules of Evidence; ss 28 and 30(7) of the Canada Evidence Act RSC 1985, Chap C-5. 
19 The Law Commission (England and Wales), above n 11, paras 4.4, 6.15, 11.8; Scottish Law Commission, above n 11, para 5.23 (in criminal proceedings); ss 62_64 of the Evidence Act 1995 (Aust). 
20 The common knowledge rule states that an expert cannot give evidence on a matter within the knowledge and experience of the fact-finder: R v B (an accused) [1987] 1 NZLR 362. 
21 The ultimate issue rule states that an opinion should not be offered on an issue if it is an ultimate issue that the fact-finder has to decide: Mathieson (ed), Cross on Evidence (CD-ROM ed, Butterworths, Wellington, 1998) para 15.5. 
22 The factual basis rule states that the facts upon which the expert's opinion are based must be proved by admissible evidence: Cross on Evidence, above n 21, para 15.7. 
23 R v Decha-Iamsukun [1993] 1 NZLR 141, 147_8 (CA); R v Hohana (1993) 10 CRNZ 92, 95_6; Attorney-General v Equiticorp Industries Group Ltd (in statutory management) [1995] 2 NZLR 135, 139_140 (CA). 
24 R v Smith [1989] 3 NZLR 405 (CA); R v McCarthy [1992] 2 NZLR 550 (CA). 
25 Section 24(1) of the Code also applies when the complainant is an adult at the time of the proceeding. This change to the current position is recommended because expert evidence about the complainant's behaviour at the time of the alleged offence can be of significant value and, in the Commission's view, should not be excluded merely because the complainant is no longer a child at the time of the trial. 
26 Schedule 1 to the Criminal Procedure and Investigations Act 1996 (UK). For some discussion of this reform see Branston, "The Drawing of an Adverse Committal from Silence" [1998] Crim LR 189. 
27 Munday, "Inferences from Silence and European Human Rights Law" [1996] Crim LR 370. 
28 Colvin and Akester, "Directions for Silence" (1995) 145 New Law Journal 1621. 
29 This approach is consistent with that favoured by the New South Wales Law Reform Commission in Discussion Paper 41, The Right to Silence (Sydney, 1998) para 3.80. 
30 If defence counsel improperly challenges the complainant's credibility (truthfulness) for the first time in the closing address, s 98(3)(b) will allow further evidence to be called; eg, evidence of a complaint. 
31 R v Accused (CA 132/97) (1997) 15 CRNZ 26 (CA); R v S (1990) 5 CRNZ 668 (CA); R v Duncan [1992] 1 NZLR 528 (CA); R v P (23 March 1993, CA 342/92). 
32 Phillips, "Refreshing Memory in the Witness Box" (1984) 63 ALJ 113. 
33 Roberts, "All the Usual Suspects: A Critical Appraisal of Law Commission Consultation Paper No 141" [1997] Crim LR 75, 91. 
34 Tapper (ed), Cross on Evidence (7th ed, Butterworths, London, 1990) 312. 
35 The concept of "heightened" relevance can also be found in s 13 of the Evidence Act 1908. As such it is not an unfamiliar concept. 
36 Cross on Evidence, above n 21, para 9.64. 
37 Buckhout, "Eyewitness Testimony" (1974) 231 Scientific American 23, 
23_24. 
38 Holdenson, "The Admission of Expert Evidence of Opinion as to the Potential Unreliability of Evidence of Visual Identification" (1988) 16 Melb UL Rev 521, 525_527. 
39 Woocher, "Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification" (1977) 29 Stanford L Rev 969, 982; Shepherd, Ellis and Davies, Identification Evidence: A Psychological Evaluation (Aberdeen University Press, Aberdeen, 1982) 38_39. 
40 Loftus, Eyewitness Testimony (Harvard University Press, Cambridge, 1979) 227. 
41 Loftus, above n 40, 109. 
42 Cutler and Penrod, "Forensically Relevant Moderators of the Relation Between Eyewitness Identification Accuracy and Confidence" (1989) 74 Journal of Applied Psychology 650_652; Bothwell, Deffenbacher and Brigham, "Correlation of Eyewitness Accuracy and Confidence: Optimality hypothesis revisited" (1987) 72 Journal of Applied Psychology 691_695. 
43 Cutler and Penrod, Mistaken Identification: the Eyewitness, Psychology and the Law (Cambridge University Press, New York, 1995) 93. 
44 Loftus, above n 40, 171_177. 
45 Cutler, Penrod and Martens, "The Reliability of Eyewitness Identification: the Role of System and Estimator Variables" (1987) 11 Law and Human Behaviour, 223, 223_258; Wells and Leippe, "How do Triers of Fact Infer the Accuracy of Eyewitness Identifications? Using memory for peripheral detail can be misleading" (1981) 66 Journal of Applied Psychology 285, 285_293. 
46 Pigott, Brigham and Bothwell, "A Field Study of the Relationship between Quality of Eyewitnesses' Descriptions and Identification Accuracy" (1990) 17 Journal of Police Science and Administration 84, 84-88; Cutler, Penrod and Martens, "The Reliability of Eyewitness Identification: the Role of System and Estimator Variables" (1987) 11 Law and Human Behaviour 223, 223_258. 
47 Fisher and Cutler, "Relation between Consistency and Accuracy of Eyewitness Testimony" (in press), cited in Cutler and Penrod, above n 43, 94. 
48 Cutler, Berman, Penrod and Fisher, "Conceptual, Practical and Empirical Issues Associated with Eyewitness Identification Test Media" in Ross, Read and Toglia (eds), Adult Eyewitness Testimony: Current trends and developments (Cambridge University Press, New York, 1994). 
49 Wells, Seelaw, Rydell and Luus, "Recommendations for Properly Conducted Line-up Identification Tasks" in Ross, Read and Toglia (eds), Adult Eyewitness Testimony: Current Trends and Developments (Cambridge University Press, New York, 1994) 229. 
50 Cutler and Penrod, above n 43, 122. 
51 There is no published data confirming that knowledge of the suspect influences subjects' decisions. However, there is unpublished data and some writing to suggest that a good line-up test requires that the investigator conducting the test be blind to the identity of the suspect: Wells and Luus, "Police Line-ups as Experiments: Social methodology as a framework for properly conducted line-ups" (1990) 16 Personality and Social Psychology Bulletin 106, 117. 
52 For example, the identification of Heidi Paakkonen: R v Tamihere [1991] 1 NZLR 195, 196 (CA). 
53 Which was recommended by the Torts and General Law Reform Committee in its report on Hearsay Evidence (1969), para 6, and restated in its report on Hollington v Hewthorn, para 4. 
54 Cross on Evidence, above n 21, para 12.3. 
55 Report on The Rule in Hollington v Hewthorn (1972): "We consider that a civil court, in an action to which the Crown is not a party, should never be called to retry upon a different standard of proof the precise issue of guilt of a criminal offence which has already been tried and determined by a criminal court of competent jurisdiction." (para 28). 
56 (1980) 429 New Zealand Parliamentary Debates 303. 
57 See the comments of North P in Jorgensen v News Media (Auckland) Limited [1969] NZLR 961, 978 (CA). 
58 Australian Law Reform Commission, Evidence Law (Interim Report 26, Canberra, 1985) Vol 1, para 781. 
59 Cross on Evidence, above n 21, para 12.3. 
60 Cross on Evidence, above n 21, paras 12.3, 12.15. 
61 These judgments actually go further in support of the absolute nature of the privilege than does the Law Commission. See the discussion at paras 323_324. 
62 Commission of Inquiry into Certain Matters Relating to Taxation, Report of the Wine-Box Inquiry (GP Publications, Wellington, 1997). 
63 Committee of Experts on Tax Compliance, Tax Compliance: Report to the Treasurer and Minister of Revenue (New Zealand Government, Wellington, 1998). 
64 This issue has recently been the subject of Canadian legislation (Criminal Code RSC 1985 C-46, s 278.5) following a number of Supreme Court decisions, notably R v O'Connor [1995] 4 SCR 411. 
65 Section 29 of the Evidence Amendment Act (No 2) 1980 protects spouses from being compelled to give evidence of communications made by their spouse during the marriage, while s 5 of the Evidence Act 1908 prevents the prosecution from compelling the spouse of an accused person to give evidence. 
66 R v Craig [1975] 1 NZLR 597; R v Taffs (No 1) (1990) 6 CRNZ 262; R v Ataou [1988] QB 798 (CA); R v Barton [1973] 1 WLR 115. 
67 One example of a legislated inroad on the general rule of the non-compellability of the accused is contained in ss 16 and 17 of the Evidence Act 1908. After consulting with the New Zealand Customs Service, the Commission has concluded that there is no need for these obscure sections to continue to exist. They are rarely relied upon in practice and can safely be repealed. 
68 See VIII Wigmore (McNaughton Rev, 1961) § 2228: "[T]his marital privilege is the merest anachronism in legal theory and an indefensible obstruction to truth in practice." 
69 Criminal Law Revision Committee (England and Wales), Evidence (11th report, HMSO, London, 1972); Canadian Law Reform Commission, Report on Evidence (Report 1, Ottawa, 1975); Ontario Law Reform Commission, Report on the Law of Evidence (Toronto, 1976); Law Reform Commission (Ireland), Report on Oaths and Affirmations (LRC 35, Dublin, 1990). 
70 See, for example, the Petition of Dame Barbara Goodman (1990/249) that the religious oath be replaced by a non-religious undertaking, which was recommended to the Government for favourable consideration by the Justice and Law Reform Select Committee. 
71 The commentator cited: Green and Shane, "Science, Reason, and Facilitated Communication" (1994) 19 (3) Journal of the Severely Handicapped 151; Jacobson, Mulick and Schwartz, "A History of Facilitated Communication: Science, Pseudoscience, and Antiscience" (1995) 50 (9) American Psychologist 750; Montee, Miltenberger and Wittrock, "An Experimental Analysis of Facilitated Communication" (1995) 28 (2) J of Applied Behaviour Analysis 189. 
72 Tameshwar v R [1957] AC 476; contra R v Hunter [1985] 2 All ER 173. 
73 As originally framed, s 85 built on s 41 of the Evidence Act 1995 (Aust), as well as s 14 of the Evidence Act 1908. 
74 See also Rule 10.02 of The Rules of Professional Conduct for Barristers and Solicitors (5th ed, New Zealand Law Society, 1998). 
75 Cross on Evidence, above n 21, para 9.25. See, in particular, Birchall v Bullough [1896] 1 QB 325 (unstamped document). More recently, see R v Markovina (1997) 96 Aust Crim R 7, 11_18. 
76 R v McCallum and Woodhouse (1988) 3 CRNZ 376 (CA); contra Lobban v R [1995] 1 WLR 877 (PC). 
77 See ss 40 and 42 of the Evidence Act 1995 (Aust); Rule 611, United States Federal Rules of Evidence. 
78 Cross on Evidence, above n 21, para 9.48. See also the discussion of R v Honeyghon and Sayles and R v Dat in [1999] Crim LR 221, 223. 
79 Home Office, Speaking up for Justice: Report of the Interdepartmental Working Group on the treatment of Vulnerable and Intimidated Witnesses in the Criminal Justice System (1998) paras 9.39_9.45; see also the discussion in NZLC PP26, 1996, para 179. 
80 Justice Sheppard (Fed Ct Aust), "Court Witnesses _ a Desirable or Undesirable Encroachment on the Adversary System?" (1982) 56 ALJ 234. 
81 Child Witnesses in the Court Process: A Review of Practice and Recommendation for Change: Report to the Courts Consultative Committee from the Working 
Party on Child Witnesses (Department for Courts, Wellington, 1996) Recommendation 23, page iv. 
82 For example, see R v Moke and Lawrence [1996] 1 NZLR 263. 
83 See a review of the discussion paper in McEwan, (1998) 2(1) International Journal of Evidence and Proof 32. 
84 Above n 81, Recommendation 18, page iii. 
85 Hampton, "Recovered Memory Syndrome v False Memory Syndrome" [1995] NZLJ 154. 
86 For example, see s 32(1) of the Criminal Justice and Public Order Act 1994 (UK); s 164 of the Evidence Act 1995 (Aust); Paciocco and Stuesser, above n 1, 280. 
87 For example, in R v Khan (1990) 59 CCC (3d) 92 (SCC) the judgment concludes by referring to the need for the judge to consider safeguards to deal with considerations affecting the weight of hearsay evidence. R v U (F) (1995) 101 CCC (3d) 97 (SCC) gives detailed guidance for the judge who instructs the jury on the use of a witness's prior inconsistent statements admitted to prove the truth of their contents. 
88 Bruck, Ceci and Hembrooke, "Reliability and Credibility of Young Children's Reports: From Research to Policy and Practice" (1998) 53(2) American Psychologist 136, 146. 
89 See generally, Dicey and Morris, The Conflict of Laws (12 ed, Sweet & Maxwell, 1993) Vol 1, Chapter 9. 
90 For further clarification on the distinction between "discovering" information contained in a computer and "discovering" information contained on paper, see Electronic Commerce Part One: A Guide for the Legal and Business Community (NZLC R50, 1998) paras 217 and 218 . 
91 (1979) 422 New Zealand Parliamentary Debates 136 and 609. 
Endnotes for EVIDENCE MISCELLANEOUS PAPER 13
1 See Kapardis, 1997:23. Since this paper largely refers to psychological research, we have adopted the style of referencing used in psychological and other scientific research: we refer to the name or names of the authors of a study or text, followed by the year in which it was published, and then the page reference. All articles and texts referred to are listed in the bibliography. 
2 For an in-depth discussion and description of meta-analytic methods see Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (Cambridge University Press, New York, 1995) 71_78. 
3 Informal survey of NZ Police practice conducted by the Law Commission, 1995. 
4 The ability to recognise a person seen previously may be contrasted with the ability to recall and verbally describe that person's appearance. 
5 See para 7 which briefly describes meta-analysis. 
6 The studies referred to found that faces rated as "highly attractive" or "highly unattractive" were better recognised than more neutrally rated faces. 
7 In the Netherlands almost all criminal trials are conducted using documented evidence, mainly produced by the police. Witnesses are rarely questioned in court. It is a statutory requirement that the police use as much as possible witnesses' own words as given in their statements (van Koppen and Lochun, 1997:666). 
8 Informal survey of NZ Police practice conducted by the Law Commission, 1995. 
9 NZ Police, correspondence, 14 October 1996. 
10 NZ Police, correspondence, 14 October 1996. 
11 Cutler and Penrod (1995:114) define unfair procedures to mean those which are under the control of police investigators and which enhance the likelihood of the eyewitness selecting the suspect (who may be innocent) from a lineup, rather than a distractor; a crude example being a lineup comprised of one black suspect and five white distractors. 
12 Section 23H of the Evidence Act 1908. 
13 The importance of the use of correct interviewing procedures by the police and forensic psychologists is discussed in Y v Y (HC Auckland, February 1998, HC 122/97) and Re D (minors) [1998] 2 FCR 419. 
14 The study used 5 posters, each containing 5 black and white photographs. One photograph depicted a person or an object relevant to the event, the other four photographs depicted distractor items (Aschermann et al, 1998:59). 
15 For a comprehensive summary on the topic of suggestibility see Doris (ed), The Suggestibility of Children's Recollections (American Psychological Association, Washington DC, 1991). 
16 See for example Spencer and Flin, 303; research referred to by the Ontario Law Reform Commission, Report on Child Witnesses, 14_16. Also Bruck, Ceci, Francover and Barr, "`I Hardly Cried When I Got My Shot!' Influencing Children's Reports About a Visit to Their Pediatrician" (1995) 66 Child Development 193. 
17 See in particular Saywitz and Moan-Hardie "Reducing the Potential for Distortion of Children's Memories" (1994) 3 Consciousness and Cognition 408. 
18 Scheflin and Brown's conclusion that the memory loss was due to dissociative amnesia has been criticised (See Pope, Hudson, Bodkin and Oliva, 1998). Causes of memory loss for traumatic events are discussed at paras 140_148. 
19 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed, APA, Washington, 1994). The Manual is a standard research tool. 
20 Above n 18, 447, emphasis added. 
21 The term epidemiological refers to research that studies the prevalence of any disorder or disorders in a community.