Contents

Chapter 11
Trial process
(Part 3 of the Act)

Questioning of witnesses

Ordinary way of giving evidence

11.9 The principle of orality, which provides that witnesses should generally give evidence orally in court, has long been a tradition in New Zealand.799 The Law Commission’s Evidence Code reflected this principle by providing that the ordinary way of giving evidence should continue to be that of witnesses testifying in court.800 In doing so, the Law Commission noted that this was not intended to “preclude or discourage the convenient practice, particularly in civil proceedings, of accepting evidence in written form with the parties’ consent”.801
11.10The Evidence Bill reproduced the equivalent provision in the Evidence Code, but also expressly provided for the use of written statements and affidavit evidence where the parties consent, and, in civil proceedings, if permitted or required by rules of court.802 The Select Committee subsequently added a proviso that the affidavit or written statement must also be the personal statement of the maker, and not contain otherwise inadmissible statements.803

11.11As enacted, s 83 of the Act provides:

83 Ordinary way of giving evidence

(1) The ordinary way for a witness to give evidence is,—
(a) in a criminal or civil proceeding, orally in a courtroom in the presence of—
(i) the Judge or, if there is a jury, the Judge and jury; and
(ii) the parties to the proceeding and their counsel; and
(iii) any member of the public who wishes to be present, unless excluded by order of the Judge; or
(b) in a criminal proceeding, in an affidavit filed in the court or by reading a written statement in a courtroom, if both the prosecution and the defendant consent to the giving of evidence in this form; or
(c) in a civil proceeding, in an affidavit filed in the court or by reading a written statement in a courtroom, if—
(i) rules of court permit or require the giving of evidence in this form; or
(ii) both parties consent to the giving of evidence in this form.
(2) An affidavit or a written statement referred to in subsection (1)(b) or (c) may be given in evidence only if it—
(a) is the personal statement of the deponent or maker; and
(b) does not contain a statement that is otherwise inadmissible under this Act.

11.12The Ministry of Justice has queried whether the ability to give evidence via affidavit or written statement where the rules of court so permit or require should be extended to criminal trials. A related issue is a possible inconsistency between s 83(1)(b) and r 12BA of the Court of Appeal (Criminal) Rules 2001.

11.13Rules of court may be made under s 51C of the Judicature Act 1908 by the Governor-General in Council, with the concurrence of the Chief Justice and two or more members of the Rules Committee.804 The Evidence Bill as introduced provided that rules of court could permit or require evidence to be given by way of written statement or affidavit in civil, but not criminal, proceedings.805 It is likely that this decision was made, at least in part, because of fair trial concerns that take on particular importance in criminal trials. For instance, the ability of rules of court to require evidence to be given by way of affidavit could impact on a defendant’s fair trial rights in the New Zealand Bill of Rights Act 1990, such as the right to examine witnesses for the prosecution under s 25(f).
11.14 We have considered whether it is desirable to amend s 83(1)(b) so it is consistent with s 83(1)(c). However, we have concluded that the principle of orality in criminal proceedings is an important one; it allows a defendant to fully test a witness’s evidence by cross-examining them on it and provides the fact-finder with the opportunity to assess first-hand the credibility and veracity of the witness giving evidence.806 While in no way doubting that the Chief Justice and Rules Committee can be safely entrusted with safeguarding defendants’ fair trial rights in making rules of court relating to when evidence may be given by way of affidavit, we are unconvinced that it would be appropriate for such a fundamental change to be effected through secondary legislation. This is consistent with the Select Committee’s view discussed above at discussed above at paragraph 8.7 that the matters contained in the Bill should be dealt with in statute rather than secondary legislation.

11.15Turning to the relationship between s 83 and the Court of Appeal (Criminal) Rules 2001, r 12BA provides that a party served with an affidavit in an appeal based on r 12A (complaint against trial counsel) or r 12B (fresh evidence) is deemed to have consented to the deponent giving his or her evidence by way of affidavit, unless they have filed an oral evidence notice requiring the deponent to give his or her evidence orally. In other words, silence is treated as consent for evidence to be given by way of affidavit for appeals under rr 12A and 12B.

11.16We are not persuaded that r 12BA of the Court of Appeal (Criminal) Rules 2001 and s 83 of the Act are necessarily inconsistent. Section 83(1)(b) provides that evidence may be given by way of affidavit where the prosecution and defence consent. Rule 12BA sets out how consent can be determined for certain appeals. This elucidation of consent is an appropriate matter for the Rules and consistent with s 83 itself. However, if clarification of the interrelationship is considered desirable, we believe that the appropriate means to achieve this would be through amending the Rules, rather than the Act itself.

Intimidating or overbearing questioning

11.17Section 85 provides:

85 Unacceptable questions

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers 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, psychological, or psychiatric impairment of the witness; and
(c) the linguistic or cultural background or religious beliefs 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.
11.18The Law Commission’s draft Evidence Code included the term “intimidating” in the list of grounds on which a judge may disallow a question.807 However, this word was removed by the Select Committee for the following reasons:808

We consider that this should not be grounds for the Judge to disallow a question. There are other definitions of unacceptable questioning which protect the interests of the witness, and we consider that grounds to disallow a question because it is intimidating could lead to the loss of relevant information. Many legitimate lines of cross examination will be intimidating to some witnesses and we consider that the other protections in clause 81 are sufficient to guide the Judge when deciding whether a question is unacceptable.

11.19 McDonald and Tinsley have recommended that the Evidence Act should be amended to include a provision that the judge may disallow a question if asked in a way that is unduly intimidating or overbearing, by taking into account the matters in s 85(2).809 They noted calls for greater judicial management of inappropriate cross-examination, and considered such a change may assist such judicial control.810 They observed that this amendment ought to be a separate section, since the inquiry into the extent to which a question may “intimidate” is focused on the person asking the question:811

However, the inquiry as to the extent to which a question may “intimidate” the witness is arguably focused on a different inquiry to the other aspects of s 85, as it is likely to be about the manner or behaviour of the person asking the question, rather than the substance or content of the question itself. A proper question may be asked in an intimidating way; such a question should still be able to be asked but in a different manner.

11.20The approach we have taken in this review has been to avoid revisiting policy decisions made by Parliament throughout the legislative process, which points away from the inclusion of a reference to “intimidating” questioning, since the Select Committee has previously thought fit to remove this wording. Arguably McDonald and Tinsley’s proposal differs slightly from the original format of the provision, in that it is recommending a separate section focused on the manner in which the question is asked rather than its content. That said, the Law Commission’s intent with s 85 was to allow both to be addressed: “It gives the judge a wide discretion to control the nature of the questions and the manner in which they are put.”812
11.21The Court of Appeal considered the application of s 85 in M v R regarding the prosecution questioning of a defence expert.813 The Court considered that the questioning did not fall foul of s 85:814

The questions did not repeat themselves or dwell on any salacious points in an emotive manner. The questions were short, to the point and were aimed at attempting to establish a lack of objectivity … the questions had a legitimate purpose and cannot be said to have been calculated simply to humiliate, belittle or break the witness.

11.22This assessment seems to indicate some consideration of the way in which the questions were asked as well as their substance.

11.23While we would not have any major objection to the inclusion of a reference to “overly intimidating” or “overbearing”, we are not convinced that it would add much to the section. A question may be intimidating but appropriate. In contrast, a question that is overly intimidating is by definition “improper” or “unfair” and therefore already covered by s 85. Accordingly, we do not recommend change in this area.

Use of documents in questioning witnesses or refreshing memory

11.24A number of submitters have raised concerns about s 90, which provides:

90 Use of documents in questioning witness or refreshing memory

(1) A party must not, for the purpose of questioning a witness in a proceeding, use a document that has been excluded under section 29 or 30.
(2) A witness must not consult a document that has been excluded under section 29 or 30 while giving evidence.
(3) If when questioning a witness a party proposes to use a document or to show a document to the witness, that document must be shown to every other party to the proceeding.
(4) If a witness proposes to consult a document while giving evidence,—
(a) that document must be shown to every other party to the proceeding; and
(b) that document may not be consulted by that witness—
(i) without the prior leave of the Judge or the consent of the other parties; or
(ii) if the purpose of consulting that document is to refresh his or her memory while giving evidence, except in accordance with subsection (5).
(5) For the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the Judge, consult a document made or adopted at a time when his or her memory was fresh.
(6) Subsection (5) is subject to subsection (2).

Use of documents in questioning witnesses

11.25The Law Commission’s final report on its Evidence Code noted authorities that allowed inadmissible documents to be used when examining a witness, generally to refresh a witness’s memory.815 The rationale for allowing such evidence seemed to be that “the actual evidence is the witness’s oral testimony, and the fact-finder never sees the inadmissible document.”816 The Law Commission found this practice “difficult to support” and noted that most commentators agreed with its proposal that inadmissible statements should never be used for the purpose of examining a witness.817 The Evidence Bill as introduced reflected the equivalent provision in the Evidence Code which prevented a party from using any “inadmissible written statement” when questioning a witness.818
11.26The Select Committee recommended two changes to this provision: expanding “written statements” to “documents”; and limiting the prohibition to documents that had been excluded under the oppression and unfairly obtained evidence provisions, rather than all inadmissible evidence.819 The Select Committee report did not provide detailed explanations for this amendment, merely saying that:820

[W]e recommend that the clause be limited to documents that have not been excluded under clauses 25 and 26 rather than preventing the use of any ‘‘inadmissible document’’ for the purpose of questioning a witness or refreshing a witness’ memory.

11.27The Select Committee’s rationale for making this amendment is not immediately evident. Arguably, the reason for which a document has been excluded under the Act would also act as a good reason for that document not to be used during questioning. However, it may have been the Select Committee’s view that the dangers in using an excluded document during questioning are not as significant as the dangers involved in admitting that same document as evidence.

11.28We note that the limitation on use is not extended to documents excluded under s 28, despite it being a companion section to ss 29 and 30. It may be that the s 90(1) limitation on use was not extended to s 28 because of the nature of the concern that section seeks to address. Section 28 is primarily concerned with reliability; ss 29 and 30 are more particularly concerned with the conduct of enforcement officers. Preventing the use of documents excluded under s 29 (oppression) or s 30 (unfairly obtained evidence) is important to ensure that the prosecution does not benefit from evidence obtained by the police in an improper or unacceptable way. By way of contrast, it is arguably not as important to prevent the use of documents excluded under s 28 as a witness who is giving evidence under s 90 is able to have his or her credibility assessed by the fact-finder.

11.29 It has been argued that evidence arising out of questioning that uses a document that has been excluded under s 28 could be excluded under the general ground in s 8.821 While this is possible, exclusion under s 8 would not be inevitable.822 It seems anomalous for s 28 to be treated differently from ss 29 and 30, particularly as s 31 applies to evidence excluded under all three sections.823 Section 31 prevents the prosecution from relying on evidence offered by another party (generally a co-defendant) that the prosecution is prevented from offering because of ss 28–30.

11.30Our view is that documents that have been excluded under s 28 should not be available for use in questioning under s 90. This will mean that the prohibition in s 90 will extend to all defendants’ statements that have been excluded under ss 28–30 and ensure consistency with s 31.

R29 We recommend amending s 90 so that documents that have been excluded under s 28 are not available for use in questioning under s 90.

Relationship between section 31 and section 90

11.31Sections 28–30 only prevent the prosecution from offering defendant’s statements in the outlined circumstances; they do not prevent a co-defendant from doing so. A co-defendant may offer a defendant’s statement that the prosecution cannot offer because of ss 28–30, provided that it is not inadmissible for any other reason (for example hearsay or previous consistent statements). Section 31 ensures that if this occurs, the prosecution cannot ride on the co-defendant’s coat-tails to use the evidence against the defendant:

31 Prosecution may not rely on certain evidence offered by other parties

Evidence that is liable to be excluded if offered by the prosecution in a criminal proceeding because of section 28 or 29 or 30 may not be relied on by the prosecution if that evidence is offered by any other party

11.32Commentators and submitters have pointed out that a co-defendant seeking to offer a defendant’s statement in evidence may seek to “use” it when questioning a witness and that s 90(1) may prevent them from doing so. This relates to the status of evidence in joint trials, which is discussed above at paragraph 3.100. Although a joint trial involves defendants being tried together, the fact-finder is nevertheless required to consider the evidence against each defendant independently. Evidence that is admissible in relation to one defendant in a joint trial is not necessarily admissible against a co-defendant. A corollary of this is that evidence that has been excluded in relation to one defendant is not necessarily excluded in relation to all defendants so as to engage the prohibition in s 90.

11.33As we are not aware of the relationship between s 31 and s 90 causing problems in practice, we suggest no amendment but recommend that the relationship of these provisions continue to be monitored.

R30 We recommend that the interrelationship between ss 31 and 90 be kept under review with any problems identified to be considered at the next five year review.

Editing of inadmissible statements

11.34Section 91 provides:

91 Editing of inadmissible statements

(1) 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 that is inadmissible.
(2) A party may not edit a statement under subsection (1) unless, 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.

11.35The New Zealand Law Society submitted that s 91(2) should allow editing of statements by agreement of counsel without the judge being involved.

11.36Section 9 of the Act is a general provision that allows the admission of evidence where parties agree:

9 Admission by agreement

(1) In any proceeding, the Judge may,—
(a) with the written or oral agreement 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.

11.37This section adequately covers the situation where counsel agree as to how a statement should be edited.

Hostile witnesses

11.38Section 94 provides:

94 Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

11.39Hostile is defined in s 4:

hostile, in relation to a witness, means that the witness—

(a) exhibits, or appears to exhibit, a lack of veracity 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

Circumstances in which a previous inconsistent statement can be excluded

11.40 A previous inconsistent statement by a witness is not hearsay (because the person making the statement is a witness) and is therefore not subject to the hearsay rules. Nor is such a statement subject to the previous consistent statement rule in s 35. There is therefore no specific restriction on the admissibility of a prior inconsistent statement of a witness.824
11.41 The Supreme Court set out the approach to previous statements of hostile witnesses in Morgan v R.825  The majority held that a previous statement of a witness who has been declared hostile may be put to that witness without offending the rule against hearsay.826  The majority noted that exclusion of a statement is still subject to the overriding discretion under s 8:827

Now that a hostile witness’s previous statement is evidence of the truth of the matters stated therein, even if it is not adopted by the witness, the Judge must be satisfied that leading evidence based on the statement, or its production, will not have an unfairly prejudicial effect on the proceeding.

11.42The Court of Appeal has also noted that the admissibility of a hostile witness’s previous inconsistent statements “turns on the application for three new sections of which the most important are ss 7 and 8”.828 The third section is s 94.829
11.43It has been suggested to us that s 94 could set out the circumstances in which the prior inconsistent statements of a hostile witness should be excluded, rather than relying on the general provision in s 8.830 The basis of this concern seems to be that such statements are not subject to normal cross-examination as it is the party calling the witness who puts the previous inconsistent statement to them. As set out in Morgan v R:831

Issues of fairness may arise when a witness is expected to be hostile and is called for the purpose of getting the unsworn statement before the jury. Unfairness may be present or exacerbated if the hostility of the witness results in the accused being unable sensibly to cross-examine on the statement.

11.44The Supreme Court expressly stated that “Trial judges should be particularly vigilant in the case of a hostile witness to ensure that the evidence of the witness does not require exclusion under s 8”.832 Trial judges are therefore required to be alert to the risk of prejudice under s 8 in relation to hostile witnesses. We are not convinced that previous inconsistent statements of hostile witnesses are of a nature that requires a specific test for admission. The general balancing exercise in s 8 seems to us to be adequate to deal with this issue.

Scope to cross-examine non-hostile witnesses

11.45A firm holding a Crown Solicitor warrant has queried whether the Act provides sufficient scope to cross-examine one’s own witnesses who fail to come up to brief. The examples provided were witnesses who downplay their account or fail to come up to brief because they are honestly mistaken.

11.46The law has long distinguished between questions that are permitted in cross-examination as opposed to examination-in-chief and re-examination, as well as between hostile and merely unfavourable witnesses.833 These distinctions have been carried over into the Act. Thus, s 89 contains a general prohibition on counsel putting leading questions to a witness in examination-in-chief and re-examination (with some limited exceptions), while no such general prohibition applies to cross-examination.

11.47The prohibition reflects the differing purposes of examination-in-chief and cross-examination. Examination-in-chief seeks to elicit the witness’s evidence; the general view is that this is best achieved through the witness giving their evidence in their own words (rather than merely agreeing with examining counsel’s propositions) in court. Cross-examination, on the other hand, involves challenging a witness’s evidence. Leading questions provide a tool to do so.

11.48Section 89 provides:

89 Leading questions in examination in chief and re-examination

(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination 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.
(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.
11.49Both pre-Act common law834 and the Act835 provide that a witness, deemed “hostile” by a judge, may be cross-examined by the party who called him or her. This allows the party to put leading questions, which may relate to a previous inconsistent statement, to the witness. This does not extend to witnesses who are not declared hostile.

11.50This means that the following options are available to a party if a witness they have called gives unfavourable evidence, or evidence that is not as favourable as the party expected:

11.51Our view is that the provisions set out above provide an appropriate and principled basis for a party to question a witness they have called who fails to come up to brief. In addition to the above, a party may adduce evidence that contradicts the witness’s evidence, provided that the evidence does not offend against any other provision of the Act.838

Restrictions on cross-examination in person

11.52Section 95 provides:

95 Restrictions on cross-examination by parties in person

(1) A defendant in a criminal proceeding that is a sexual case or a proceeding concerning domestic violence or harassment is not entitled to personally cross-examine—
(a) a complainant:
(b) a child (other than a complainant) who is a witness, unless the Judge gives permission.
(2) In a civil or criminal proceeding, a Judge may, on the application of a witness, or a party calling a witness, or on the Judge’s own initiative, order that a party to the proceeding must not personally cross-examine the witness.
(3) An order under subsection (2) may be made on 1 or more of the following grounds:
(a) the age or maturity of the witness:
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness:
(c) the linguistic or cultural background or religious beliefs of the witness:
(d) the nature of the proceeding:
(e) the relationship of the witness to the unrepresented party:
(f) any other grounds likely to promote the purpose of the Act.
(4) When considering whether or not to make an order under subsection (2), the Judge must have regard to—
(a) the need to ensure the fairness of the proceeding and, in a criminal proceeding, that the defendant has a fair trial; and
(b) the need to minimise the stress on the complainant or witness; and
(c) any other factor that is relevant to the just determination of the proceeding.
(5) A 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—
(a) a lawyer engaged by the defendant; or
(b) if the defendant is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.
(6) In respect of each such question, the Judge may—
(a) allow the question to be put to the witness; or
(b) require the question to be put to the witness in a form rephrased by the Judge; or
(c) refuse to allow the question to be put to the witness.
(7) Subsection (1) overrides section 354 of the Crimes Act 196

Application of section 95(1) to civil proceedings

11.53It is open to interpret s 95(1) in two ways:

11.54 The difference in these two approaches has particular relevance in the family context where, for example, an application for a protection order is a civil proceeding. Ronald Young J analysed s 95(1) in FU v RU and held that the first interpretation was correct.839 The equivalent subsection in the Law Commission’s draft Evidence Code was clear that it only applied to criminal proceedings.840 However, the drafting in the Bill as introduced differed from that proposed in the Evidence Code.841 The Ministry of Justice’s departmental report on the Evidence Bill indicates that this was a conscious decision to extend the prohibition to civil cases involving domestic violence and harassment. The Ministry’s report provides that “[a]s well as criminal cases sub-clause (1) covers any proceeding concerning domestic violence”.842
11.55This indicates that the ambiguity in drafting has led to s 95(1) being interpreted contrary to intention. For instance, subs (1) uses the terms “complainant” and “defendant” which are associated with criminal, rather than civil, proceedings.843 By way of example and contrast, the relevant actors in an application for a protection order are referred to as the applicant and respondent. Further, subs (2) is drafted in a manner that makes it clear it applies to both civil and criminal proceedings, using the terms “party” and “witness”. There is therefore a question as to why subs (1) is not similarly unambiguously drafted.844

11.56An amendment is therefore necessary to give effect to the intention behind the provision.

R31 We recommend amending s 95(1) so that it unambiguously applies to both civil and criminal proceedings involving domestic violence or harassment.

Complainants who wish to be cross-examined by the defendant in person

11.57A submitter has commented to us that s 95(1) appears to be an absolute bar which may prevent a complainant from being cross-examined in person should they wish to be. The fact that the judge may permit personal cross-examination of a child witness, but not a complainant, does suggest that subs (1) may operate as a complete bar. However, it seems to us that s 9 provides a formal means for parties to agree to cross-examination in person should the complainant request this occur. A member of the advisory group pointed out that amending s 95 to allow personal cross-examination of a complainant gives rise to concern that a complainant may face undue pressure to allow personal cross-examination. We agree that this is a risk. Accordingly, in the absence of evidence that this provision is causing problems in practice, we recommend no amendment.

Failure of defendant to engage a lawyer within a reasonable time

11.58Under s 95(5), a party who is precluded from personally cross-examining a witness may have his or her questions put to the witness by their lawyer. Alternatively, if the defendant is unrepresented and fails or refuses to engage a lawyer for this purpose within a reasonable time, the judge may appoint a person on their behalf. A submitter has raised the possibility that defendants may refuse to appoint a lawyer in order to delay a trial.

11.59The previous section in the Evidence Act 1908 did not explicitly provide that the defendant could choose their own lawyer. A defendant was able to give their questions to a “person, approved by the Judge” who could then put them to the complainant.845 The equivalent provision in the Law Commission’s proposed Evidence Code provided that:846

… 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 this purpose.

11.60The ability for a defendant to choose a lawyer to put these questions was added by the government in the Evidence Bill as introduced.847 The Select Committee subsequently removed the ability for a judge to put questions to the complainant if the defendant refused or failed to engage a lawyer for this purpose, but did not provide any reasons for this amendment.848

11.61We acknowledge that allowing a defendant to engage a lawyer for the purpose of cross-examining a complainant provides that defendant with an opportunity to delay the trial by not doing so. This is a necessary consequence of the policy decision to allow defendants to engage their own lawyer. The proviso that the defendant must engage a lawyer “within a reasonable time specified by the Judge” limits the extent to which this can occur. We believe that the “reasonable time specified by the Judge” provides the judge with the necessary flexibility to deal with different circumstances. It seems to us that the only way in which the submitter’s concern could effectively be addressed is to remove the ability of a defendant to engage their own lawyer, and for the defendant’s questions to be put by a person appointed by the judge and / or the judge themselves. We note that the government was presented with this option but chose to enact the current provision contained in subs (5)(b). Revisiting this decision would be inappropriate in the context of this review without evidence demonstrating it is causing significant problems.

799Mathieson (ed) Cross on Evidence, above n 792, at [EVA83.5].
800Law Commission Evidence: Volume 2 – Evidence Code and Commentary (NZLC R55, 1999) at 204.
801At 205.
802Evidence Bill 2005 (256-1), cl 79.
803Evidence Bill 2005 (256-2), cl 79(2).
804The Rules Committee was established under s 51B of the Judicature Act 1908 and comprises the Chief Justice, Chief High Court Judge, 2 other Judges of the High Court, Chief District Court Judge, Attorney-General, Solicitor-General, Chief Executive of the Ministry of Justice, 2 barristers and solicitors as nominated by the New Zealand Law Society and approved by the Chief Justice.
805Evidence Bill 2005 (256-1), cl 79.
806Richard Mahoney and others The Evidence Act 2006: Act & Analysis (2nd ed, Brookers, Wellington, 2010) at 348.
807Law Commission, Evidence: Volume 2, above n 800, at 208.
808Evidence Bill 2005 (256-2) (select committee report) at 10.
809Elisabeth McDonald and Yvette Tinsley “Evidence Issues” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 279 at 317.
810At 317.
811At 317.
812Law Commission, Evidence: Volume 2, above n 800, at 209 (emphasis added).
813M v R [2011] NZCA 84 at [32]–[34].
814At [34].
815Law Commission Evidence: Volume 1, above n 792, at 105.
816At 105.
817At 105.
818Evidence Bill 2005 (256-1), cl 86(1); Law Commission Evidence: Volume 2, above n 800, at 214.
819Evidence Bill 2005 (256-2), cl 86.
820Evidence Bill 2005 (256-2) (select committee report) at 10.
821Grant Burston and Saeeda Verrall “Questioning of Witnesses” (paper presented to New Zealand Law Society Evidence Act 2006 Intensive Conference, June 2007) 115 at 121.
822Mahoney and others, above n 806, at 370.
823See generally Burston and Verrall “Questioning of Witnesses”, above n 821, at 121.
824Singh v R [2010] NZCA 144 at [7].
825Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508.
826At [36].
827At [40].
828Singh v R, above n 824, at [8].
829At [10].
830Letter from Scott Optican (University of Auckland) to Warren Young (Law Commissioner) regarding 2011/2012 Review of the Evidence Act 2006 – Areas for Consideration (Document Drafted by Law Commission) (14 December 2011).
831Morgan v R, above n 825, at [40].
832At [40].
833See generally Mathieson (ed) Cross on Evidence, above n 792, at [EVAPart3Subpart4.1] and Bruce Robertson (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Brookers) at [ED11.04].
834Mathieson (ed) Cross on Evidence, above n 792, at [EVA94.7]
835Evidence Act 2006, s 94.
836Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23 at [58].
837R v Foreman (No 8) HC Napier CIV-2006-041-1363, 28 April 2008.
838Evidence Act 2006, s 37(4)(b).
839FU v RU [2008] 1 NZLR 816 at [36].
840Law Commission Evidence: Volume 2, above n 800, at 220.
841Evidence Bill 2005 (256-1), cl 91(1).
842Ministry of Justice Departmental Report for the Justice and Electoral Committee: Evidence Bill: Part 3 – Trial Process (May 2006) at 17.
843FU v RU, above n 839, at [16].
844At [19].
845Evidence Act 1908, s 23F.
846Law Commission Evidence: Volume 2, above n 800, at 222.
847Evidence Bill 2005 (256-1), cl 91(5).
848Evidence Bill 2005 (256-2), cl 91(5).