Contents

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

The Evidence Act 2006

1.1In August 1989 the Law Commission was asked by the then Minister of Justice, the Hon Geoffrey Palmer (as he then was), to review the laws of evidence. The purpose of that review was “[t]o 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”.1
1.2At that time, the law of evidence was largely found in judicial decisions, which were supplemented by statutory provisions, many of which were not found in the Evidence Act 1908 itself. As was noted later by the Law Commission, this made the law of evidence “difficult to access, at times uncertain and lacking consistency.” 2
1.3Ten years after receiving the reference, in August 1999, the Law Commission delivered its final report on an Evidence Code to the Minister of Justice. The President of the Law Commission at that time, the Hon Justice Baragwanath, described the report as “the culmination of a decade of research and consultation with special interest groups and individuals."3  During that decade, the Law Commission released numerous discussion papers, miscellaneous papers, and other research papers. It consulted widely with the judiciary, practitioners, academics and the community. It was one of the most extensive law reform exercises conducted in New Zealand legal history.
1.4The Evidence Code recommended by the Law Commission was intended to draw together the common law and statutory provisions relating to evidence in one comprehensive scheme. The Law Commission’s intention was that there be a fundamental change in approach, with the Code being the first point of call for judges and practitioners.4  As the Chair of the Select Committee that considered the Evidence Bill said:5

One of the beauties of the Evidence Bill, when it becomes law, is that the busy lawyer in the District Court, particularly the duty solicitor—a position reasonably recently evolved—and the overworked legal aid lawyers will have in one lengthy, but hopefully clear, statute the rules of evidence that they can expect to be applied and can expect the judge to recognise in the pressure of those very busy courts.

1.5In terms of the substance of its Evidence Code, the Law Commission took an approach that emphasised:6

… facilitating the admission of relevant and reliable evidence …. 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.

1.6The Evidence Bill introduced by the Government in 2005 largely reflected the recommendations of the Law Commission. The Bill was considered by a subcommittee of the Justice and Electoral Committee, which made a number of changes. However, the underlying legislative purpose remained the same: the simplification and drawing together of the laws of evidence in one place. Its enactment brought about what one Member of Parliament described as “a new dawn in the law of evidence”.7  A senior judge commenting extra-judicially has noted that the Act:8

… replaced the comfortably familiar Evidence Act 1908, and decades of accumulated common law. Students, lawyers and judges had to come to grips with a piece of legislation that required a new way of thinking. They would receive only limited assistance from what had gone before.

1Law Commission Evidence: Volume 1 – Reform of the Law (NZLC R55, 1999) at xviii.
2At 2.
3At xv.
4At 3.
5(23 November 2006) 635 NZPD 6802.
6Law Commission Evidence: Volume 1, above n 1, at 3.
7(21 November 2006) 635 NZPD 6638.
8Helen Winkelmann “Foreword” in Richard Mahoney and others The Evidence Act 2006: Act & Analysis (2nd ed, Brookers, Wellington, 2010) v at v.