Submissions open on overhaul of evidence law

Brendan Cash, Senior Associate | July 2005

Recently, the government introduced the Evidence Bill, the culmination of a process that started in 1989, when the Law Commission was asked to review this area of law.

The Law Commission's final report on this topic was published in 1999 and the draft Code that accompanied that report has now (with one or two changes) been turned into the new Evidence Bill.

The law on evidence has become an increasingly complex area, with both statutory and common law rules on the admissibility of evidence in civil and criminal trials.

Against that background, the aims and purposes of the new Bill are laudable and anyone who has ever been involved in litigation would undoubtedly agree with them.

The Bill's stated purposes are

• to provide for the facts in any case to be established by the application of logical rules;
  
  
• to promote fairness to parties and witnesses;
  
  
• to protect the rights of confidentiality and other important public interests; and
  
  
• to avoid unjustifiable expense and delay. 

Reflecting these aims, the Bill’s fundamental principle is very straightforward, namely that all relevant evidence is admissible in court proceedings unless there is some policy reason to exclude it.

Hearsay evidence

A good example of the application of this principle is the new provision dealing with hearsay evidence.

Hearsay is a term often bandied about by lawyers, although not always correctly. No wonder when the law relating to it has been described by the courts as "absurdly technical".

Hearsay evidence is literally "I heard it said" (for example, I heard Fred say that Alex killed the postman).

Traditionally, such second-hand evidence was treated as being unreliable and was excluded as evidence of the truth of what was said. 

However, it often excluded evidence that was both reliable and relevant.  To mitigate the effects of the rule many exceptions were developed, adding to the complexity of this area of law.

The Evidence Bill will greatly simplify the hearsay rule and its exceptions.

Hearsay evidence will be admissible if it passes two tests.

First, if the circumstances relating to the statement provide reasonable assurance that the statement is reliable.

Second, if the maker of the statement is unavailable or it would cause undue expense and delay if the maker of the statement had to give evidence.

So, for example, a statement taken from an employee by a manager investigating an industrial accident might be admissible in a subsequent health and safety prosecution if the employee had left to travel abroad and could not be located, or if having him or her give evidence directly would cause undue expense and delay.

The fact that the manager recorded the statement in writing as part of a formal investigation would be a factor that supported the reliability of the statement.

Overall, the new provisions should make it easier for commercial organisations to rely on hearsay evidence.  However, the requirement that a witness either be unavailable, or that it would cause undue expense and delay if the witness had to give evidence, may be difficult to satisfy on occasion and, at least for civil matters, it would be preferable if the test were less strict. 

Expert evidence

The law on expert evidence has also been simplified, although it is debatable whether the new provisions help the Bill fulfil its aim of avoiding unjustifiable expense and delay. 

Currently, an expert cannot express an opinion on the ultimate issue to be decided by the judge or jury (e.g. has the party been negligent) or on matters of common knowledge (e.g. everyday matters of commerce).

Under the Evidence Bill, those rules would cease to apply.

Expert opinions will be admissible if the judge or jury is likely to obtain substantial help from them. 

When the Law Commission reported on this proposal in 1999, it noted that a number of commentators were concerned that this new test would encourage the greater use of expert evidence.

This in turn would have the effect of lengthening trials (adding to the costs) and could result in "junk science" being presented.

The Law Commission thought that these concerns were unjustified.  The expert already plays a significant role in many civil and criminal trials.

Some would argue that parties already call expert evidence on matters of common knowledge or on the ultimate issue of the case.  Therefore, the proposed test for the admission of expert evidence might make little difference in practice. 

Whether it does might ultimately depend on how the test is applied by the courts if the Bill is passed.

Privileges

The Evidence Bill also deals with the various privileges that parties to litigation can claim in order to prevent the disclosure of information.

It essentially re-enacts the existing privileges applying to communications with legal advisers, communications with other parties about actual or contemplated litigation and "without prejudice" communications. 

Privilege: communications with legal advisers

As is currently the case, a person could claim privilege for any confidential communications made with a legal adviser for the purpose of obtaining or receiving legal advice.

Of interest to corporate or in-house lawyers is the fact that the definition of legal adviser includes an employed legal advisor – but only if they hold a current practising certificate under the Law Practitioners Act 1982.

The importance of in-house lawyers holding a current practising certificate in order to claim legal advice privilege was recently highlighted by the ACT Supreme Court in Vance v McCormack [2004] ACTSC 78.

If enacted, the Evidence Bill would make this a statutory requirement.

This may not be an easy requirement for overseas lawyers employed in in-house roles or for in-house lawyers with an international dimension to their role, such as in-house lawyers in Australia who provide legal support to a New Zealand business. 

In general, the technical requirements for a claim of privilege in the Evidence Bill, such as the requirement to hold a current New Zealand practising certificate, could pose challenges to both law firms and corporates operating in an increasingly international and complex business environment.  The Evidence Bill may need to be amended so that it better accommodates and reflects that environment (e.g. by accommodating overseas lawyers who hold practising certificates in jurisdictions similar to New Zealand).

Privilege: self incrimination

Another privilege dealt with in the Evidence Bill is the privilege against self incrimination.

Witnesses in American legal dramas often "plead the Fifth" (amendment to the US constitution) to avoid answering questions that may incriminate them. Similarly, the common law provides a privilege against self incrimination which witnesses and others can rely on to refuse to answer questions.

The Evidence Bill proposes retention of this privilege, although in a modified form.

Currently, the privilege against self incrimination is broadly applied in New Zealand. It applies not only to protect information which might lead to the criminal prosecution of the person concerned but also to information which might lead to a prosecution for a regulatory offence or to a civil penalty or fine.  Also, the privilege can currently be claimed by a corporation as well as an individual. 

Under the Evidence Bill, corporations would no longer be able to claim the privilege and it would only be available to prevent the disclosure of information that would lead to a prosecution for a criminal offence punishable by imprisonment or a fine.

This change, if enacted, is likely to be felt most by corporations, their directors and employees, when being investigated by regulatory authorities, such as the Commerce Commission.

The company itself would not be able to rely on the privilege at all and the regulatory or civil nature of any penalties may mean that directors or employees could not rely on the privilege when being interviewed by the regulator.  As a result, this is another area where commercial organisations might want to see the Evidence Bill changed, so that it is more closely aligned with the current common law position.

Privilege: confidential information

The Evidence Bill also contains provisions intended to protect confidential information.

There is a specific and qualified privilege to protect journalists' sources from disclosure.

Another provision gives the court a general discretion to protect confidential communications, confidential information or a confidential source of information.

The court could exercise the discretion whenever the public interest in the disclosure were outweighed by the public interest:

• in preventing harm to the person who disclosed the information or to whom the information relates;
  
  
• in preventing harm to the relationship in the course of which the information was disclosed; or
  
  
• in maintaining activities that contribute to or rely on the free flow of information.

The general discretion to protect confidential information in the Evidence Bill is broader than the discretion currently available to the courts and could be used in a wide variety of situations.

For example, a regulatory body could rely on it to protect the identity of a confidential whistleblower.

Alternatively, a company might rely on it to protect from disclosure in court proceedings information imparted in confidence to a third party (such as an accountant or a consultant) and which, through either a breach of confidence or inadvertent disclosure, had come into the hands of another party.

Computer-generated evidence

The Evidence Bill deals with the admissibility of evidence produced by machine, device or technical process.

An example would be computer-generated evidence of the date and time an email was received or a log of calls made, their duration, time, date, etc.

Currently, a party may have to establish by expert evidence the reliability of the general class of machine, device or technical process relied on and the reliability of the particular device utilised by that party.

The courts have been slow in the past to recognise computer-generated evidence or new technologies.

For example, in 1980 the court declined to accept a computer printout of the serial numbers of bank notes and it was not until 1998 that GPS systems were accepted as notorious scientific instruments, the reliability of which could be presumed without the need for expert evidence.  

The Evidence Bill would, in effect, set up a presumption that a machine, device or technical process is reliable, and has done what the relevant party asserts it has done, in the absence of evidence to the contrary.  

The Evidence Bill will also remove any uncertainty about the production of secondary evidence of what is stored on a computer or other device.

The Bill says that if information cannot be used unless the machine, device or technical process is used to display, retrieve, produce or collate it, then a document which shows what the machine displayed, retrieved or collated can be produced.

The Evidence Bill may reduce some of the risks and costs associated with a shift to a new technology (e.g. such as a move to store files electronically using imaging software).  In the vast majority of cases, where there is or should be little or no dispute about the reliability of new technology, this is probably sensible.

However, it could create real difficulties for those challenging evidence produced by a machine, device or technical process in cases where something may have gone wrong. 

The burden of proof will shift to the party challenging the evidence and it may be very difficult to show that a particular device is unreliable, either because of an absence of information or because of the costs involved.

Timeframe

The Evidence Bill is currently before the Justice and Electoral select committee. 

Submissions close on 12 August 2005 and the select committee’s report is due on 14 August 2005.  As is highlighted above, commercial organisations may have in interest in commenting on parts of the Bill, such as the test for the admissibility of hearsay evidence or the circumstances in which various privileges can be claimed. 

 

Advice and information

If you have any questions on the Bill or would like assistance in making a submission, members of our Litigation team can help you and can be contacted at the numbers below.

Auckland

David Cooper
Partner

Ian Gault
Partner

Brian Latimour
Partner

Roger Partridge
Partner

Alan Ringwood
Partner

Ralph Simpson
Partner

Murray Tingey
Partner

Rob Towner
Partner

Wellington

Mike Colson
Partner

Mark O'Brien
Partner

Andrew Scott-Howman
Partner