Chapter 1
Initial review under section 202: background, purpose
and guiding principles

Submissions and feedback

1.24We received a total of 19 submissions. These are listed in Appendix 1 to this report.

1.25Overall, the feedback we received about the operation of the Act was positive. Three submissions specifically made the point that the Act is generally working well and is not in need of major legislative amendment. This accords with the view expressed by one judicial commentator speaking extra-judicially in 2008:18

It may be unfashionable to compliment change, but I am of the view that the Evidence Act (“Act”) is working pretty well. I have been encouraged by the fact that some have read it, and generally arguments are sourced in its terms rather than those dated cases of the early 2000s. Mostly, the words of the Act are clear, and promote sensible debate …. [O]verall I consider it is a positive development.

1.26It is a view that was confirmed in early 2012 by Scott Optican providing comment in an article on the Law Commission’s upcoming review under s 202:19

I think on the whole the Act is working reasonably well and as intended as an aggregate matter. It was a very carefully thought-out piece of legislation produced after many years. You would expect it to operate coherently.

1.27Generally, submissions were focused on particular issues that are perceived to have posed difficulties, or which have been the subject of attention from the appellate courts. Of these issues, we consider that only a small number can be described as causing significant problems in the day to day application of the Act.

1.28There appears to be widespread agreement amongst commentators that the most problematic provision is previous consistent statements (s 35). That is certainly the issue that has generated the most case law at Court of Appeal and Supreme Court level.

1.29The other main issues of significance identified by commentators and submitters related to the propensity provisions and the privilege for settlement negotiations or mediation. We consider that the remainder of the issues identified are relatively confined issues, the majority of which can be described as technical in nature and do not appear to warrant urgent legislative intervention.

18Simon France “Hearsay” (paper presented to the New Zealand Law Society Criminal Law Symposium, Wellington, November 2008).
19Catriona MacLennan “Law Commission will probably be selective in its review of the Evidence Act” Law News (New Zealand, 11 May 2012) at 1.