Hearsay, defendants’ statements and co-defendants’ statements
Introduction and background
3.2This part of our report considers general matters that have been raised in relation to the general hearsay provisions. The issues considered relate to the definition of “witness” and the business record exception.
3.3The Act’s hearsay provisions are located in subpart 1 of Part 2. Section 17 provides that hearsay evidence is inadmissible, unless allowed under the Act or any other legislation. The general test for admissibility is contained in s 18:
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if–
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
3.4Prior to the Act, the former rule against hearsay generally prevented out of court statements being admitted to prove the truth of their contents. The rule reflected the common law view that factual evidence should be presented by the person with immediate knowledge of those facts under oath, in court, and subject to cross-examination. This enables parties to test the evidence through cross-examination, and tease out any shortcomings in the evidence. For instance, cross-examination may reveal that an eyewitness’s observation of a crime occurred at night, in a dimly lit street, while the eyewitness was not wearing their glasses. Or it may reveal that an eyewitness is related to another suspect and therefore had a motive to lie.
3.5 Strictly applied, however, the rule could exclude evidence that was highly relevant to the case. For instance, a label on a bag of coriander seed stating “Produce of Morocco” was excluded as hearsay even though the country of origin was a central element to the charge of making a false entry in a document produced to a customs officer. Concern that the hearsay rule deprived courts of relevant evidence led to the development of both common law and statutory exceptions to the rule. These included dying declarations, statements against interest, regular entries in records made in the course of business and official statements.
Development of the Evidence Code
3.6In developing the Evidence Code, the Law Commission released two papers on hearsay. The first set out options for reform, ranging from the minor (clarifying the hearsay provisions in the Evidence Amendment Act (No 2) 1980) to significant (abolishing the hearsay rule altogether). The second paper set out the Law Commission’s preferred option to replace the hearsay rule and its myriad of exceptions with a rule of general application: “if the evidence has reasonable assurance of reliability it should be admitted notwithstanding its hearsay character”. This avoided technical arguments as to whether a particular piece of evidence fell within one of the exceptions to the rule, and instead focused the inquiry on whether the hearsay evidence was sufficiently reliable to be placed before the court.
3.7 The Law Commission subsequently refined this proposal in its reports Evidence: Reform of the Law and Evidence: Evidence Code and Commentary. These reports set out a hearsay rule with admissibility governed by reliability (Do the circumstances in which the statement was made provide reasonable assurance as to its reliability?) and necessity (Is the maker of the statement available to give evidence? Or would calling the witness cause undue expense or delay?).
3.8As enacted, the Act’s hearsay provisions essentially followed the Law Commission’s recommendations with the following key differences that were recommended by the Justice and Electoral Committee considering the Bill:
- The Act reinstated the exception for business records that was previously contained in the Evidence Amendment Act (No 2) 1980.
- An additional section (now s 21) was inserted to prevent a criminal defendant from offering his or her own hearsay statement where he or she does not give evidence.
Definition of witness
3.9Submitters have suggested that the definition of “witness” should be clarified as to whether past and / or future testifiers are included in the definition. The definition has implications for the application of various admissibility rules. For instance, an out of court statement by a “witness” is not a “hearsay statement” and is therefore not subject to the hearsay rules. “Hearsay statement” and “witness” are defined in s 4 of the Act:
(1) In this Act, unless the context otherwise requires,–
hearsay statement 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
witness means a person who gives evidence and is able to be cross-examined in a proceeding
3.10Also relevant is s 34, which provides:
34 Admissions in civil proceedings
(1) Subpart 1 (hearsay evidence), subpart 2 (opinion evidence and expert evidence), and section 35 (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.
3.11The definitions of witness and hearsay statement were recommended by the Law Commission in its draft Evidence Code. The reason for linking the definition of hearsay statement with that of “witness” was due to the Law Commission’s view that:
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.
3.12In practice, the ability to cross-examine a witness will vary, as is apparent with hostile witnesses.
3.13A witness who is currently engaged in giving evidence clearly falls within the definition of “witness”. The situation with regard to past and future testifiers is outlined below.
Current case law
3.14 The Court of Appeal has held that past testifiers come within the s 4 definition of “witness”, stating that “X, as a past-testifier, is a witness for the purposes of the Act according to s 4”. This is consistent with the Law Commission’s commentary on the draft Evidence Code and the explanatory note to the Evidence Bill. This can cause timing issues where a subsequent witness recounts what a past testifier said to them on a matter that the past testifier did not give evidence on. In R v Foreman (No 7) a witness was asked about his conversation with a past testifier who had left the courtroom. Simon France J refused to let the question be put, holding that:
Although not hearsay, in general it cannot be that an out of court statement admissible for its truth, can be led about a topic when the maker of the statement has already testified and has not been asked about the topic … What would happen if the question is allowed at this point is that what should be a prior statement is led as original evidence proving its truth in circumstances where the maker of the statement has been a witness but has not himself testified to the truth of the contents. In my view that remains impermissible.
3.15His Honour recognised that this timing issue can be remedied through recalling the past testifier. This ensures the court is provided with evidence by the person who made the statement, and that the statement maker can be cross-examined on it. Admissibility would remain subject to the previous consistent statement rule in s 35.
3.16In relation to future testifiers, the Supreme Court in R v B proceeded on the basis that a future testifier is not a “witness” for the purposes of s 35. However, the Court also held that “It does not matter that [the witness] is not presently a witness in the s 4 sense because she will be a witness when the ruling comes to be applied”, thus allowing the admissibility of the previous consistent statement to be considered pre-trial.
Should future testifiers be “witnesses”?
3.17 The authors of The Evidence Act 2006: Act & Analysis set out their view that the core admissibility provisions relating to hearsay (s 18), admissions in civil proceedings (s 34) and previous consistent statements (s 35) would be “almost unworkable” if future testifiers were included in the definition of “witness”. The problems identified are that:
- Hearsay: out of Court statements by a future testifier would be admissible without the controls of reliability, unavailability and notice (in criminal proceedings) being met.
- Admissions in civil proceedings: s 34(2), which limits the use of hearsay statements of a third party in civil proceedings, would be largely meaningless as such admissions would seldom be “hearsay statements” as parties in civil proceedings almost always give evidence.
- Previous consistent statements: it would be difficult to determine whether a statement is consistent with evidence that a future testifier is yet to give.
3.18We think that it would be odd for the admissibility of a conversation between two witnesses to be determined by who gives evidence first under the three sections discussed above. In relation to the specific sections:
- Hearsay: We remain of the 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”. Cross-examination fulfils the function of the “reasonable assurance of reliability” test by ensuring that the fact-finder has information to assess the reliability of the statement. There seems no reason, in principle, for distinguishing between past and future testifiers. We also note that the timing issue that can occur in relation to past testifiers is not a problem as parties can ensure that the witness gives evidence about, and is cross-examined on, the circumstances in which they made the relevant statement.
- Admissions in civil proceedings: Section 34(2) preserves the position of a party (witness A) from having their position damaged by another party’s admission (witness B) where witness A is neither the person who made the admission, nor the person who is giving evidence of the admission. As with hearsay, cross-examination fulfils the function of the reliability test set out in s 34(2)(a).
- Previous consistent statements: We acknowledge that including future testifiers in the definition of “witness” could cause difficulties with s 35 as it would be difficult to know in advance whether a statement will be “consistent” when the witness has not yet testified. In contrast to ss 18 and 34, whether future events will justify admission depends on the content of the evidence to be given, and not only on whether the future testifier will in fact give evidence. However, our recommendation to repeal s 35(1) and (2) would eliminate this issue. Alternatively, s 14 provides a means for this evidence to be provisionally admitted.
3.19We acknowledge that there is a risk that a future testifier who is scheduled to appear as a witness does not do so. Alternatively, a party may change their mind about calling a particular witness. In this event, s 14 would allow evidence to be provisionally admitted subject to the statement maker giving evidence as a witness. If this does not occur, any prejudice or unfairness could be remedied through a judicial direction to the jury. A party could also appeal, or in extraordinary circumstances where the extent of the prejudice or unfairness is such that remedial action is ineffective, the judge may declare a mistrial.
3.20We have considered whether an amendment to clarify that the definition of witness includes future testifiers is necessary or desirable. We are conscious that the term “witness” is peppered throughout the Act with different nuances in meaning depending on the context in which it appears. For instance, the hostile witness provisions (definition of hostile in s 4, and s 94), opinion evidence provisions (s 24) and provisions relating to the questioning of witnesses under subpart 4 of Part 3 of the Act, generally only relate to a witness that is currently engaged in giving evidence. Other provisions clearly refer also to future testifiers. We are therefore reluctant to recommend any legislative amendment in the absence of any evidence that the definition is causing problems in practice, as it could have wide-ranging and unintended effects. Accordingly, we recommend no amendment but will continue to monitor the interpretation of the term “witness” for reconsideration at the next five year review if any problems are identified.
R2 We recommend that the definition of “witness” be kept under review with any problems identified to be considered at the next five year review.
3.21We received submissions that the business record exception (which allows a hearsay statement in a business record to be admitted without having to separately satisfy the reliability test) should not include items such as police notebooks which contain eyewitness statements. The exception is contained in s 19 and provides:
19 Admissibility of hearsay statements contained in business records
(1) A hearsay statement contained in a business record is admissible if—
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
(2) This section is subject to sections 20 and 22.
3.22Business, business record and duty are defined in s 16 as:
(a) means any business, profession, trade, manufacture, occupation, or calling of any kind; and
(b) includes the activities of any department of State, local authority, public body, body corporate, organisation, or society
business record means a document—
(a) that is made—
(i) to comply with a duty; or
(ii) in the course of a business, and as a record or part of a record of that business; and
(b) that is made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied
duty includes any duty imposed by law or arising under any contract, and any duty recognised in carrying on any business practice.
3.23 Section 19 and the associated definitions in s 16 were inserted by the Select Committee for the following reasons:
Business records as a class of documents are accepted as reliable. In addition, we consider that time and cost will be saved by retaining the existing exception to the hearsay rule contained in the Evidence Amendment Act (No 2) 1980.
3.24This was confirmed during the debate in the Committee of the Whole House considering the Evidence Bill. Mr Finlayson said that “Following on from submissions, we have gone back, essentially, to the equivalent provision in the Evidence Amendment Act (No 2) 1980.”
3.25However, s 19 is different from the equivalent provision in the Evidence Amendment Act (No 2) 1980. In particular, the previous business record exception did not include a document that “[r]ecords the oral statement of any person made when the criminal proceeding was, or should reasonably have been, known by him to be contemplated”. This previously had the effect of excluding statements that might be self-interested or biased.
3.26It has been suggested to us that s 19 be repealed as s 18 could adequately determine the admissibility of such statements. In the alternative, some submitters were of the view that the definition of business record should be reconsidered to exclude police notebooks and documents that contain eyewitness statements.
Police documents and notebooks containing eyewitness statements
3.27The issue of police notebooks first arose in R v Hovell under the Evidence Amendment Act (No 2) 1980. The statement in question was a narrative prepared by a police officer following a question and answer session with the victim of an indecent assault who subsequently died before the defendant was charged. The victim signed the statement after it was read to her. The Court of Appeal held that the statement taken by the police officer was a “business record” as it was a document made pursuant to the police officer’s duty in investigating the victim’s complaint.
3.28R v Kereopa concerned the admissibility of a police statement of a deceased eyewitness under the Evidence Act 2006. The Court determined the admissibility of the statement under both s 18 and s 19. Looking first to s 18, Cooper J held that there was not reasonable assurance that the statement was reliable for the purposes of s 18, and should therefore be excluded. In the alternative, Cooper J found that s 19 applied as the definition of “business record” in the Act is not materially different from the old definition in s 3 of the Evidence Amendment Act (No 2) 1980. However, he applied the overriding discretion in s 8 to exclude the statement on the basis that its probative value would be outweighed by the prejudicial effect of its admission.
3.29The exclusion in R v Kereopa appears to have been the correct result in the circumstances. However, it seems unsatisfactory that the judge had to resort to the general overriding s 8 provision to exclude a statement he regarded as unreliable.
3.30Police records containing statements of eyewitnesses or victims are different from other business records that generally do not raise reliability concerns, such as microfilms recording numbers stamped into cards during manufacture, financial records, information on a police computer system containing a national register of vehicle owners, loan and mortgage documents, a copy of an Information, and medical records. Our view is that police records containing eyewitness or victim statements should be subject to the reliability test in s 18.
3.31We believe that this is consistent with the Select Committee’s reinstatement of the business record exception. Its rationale for doing so was that business records are inherently reliable and an independent assessment of reliability would therefore consume unnecessary time and cost. Ensuring the business record exception does not apply to documents that are not inherently reliable is consistent with this rationale.
3.32There are a number of options for reform:
- Repeal the business record exception in s 19. This would treat business records in the same way as other hearsay evidence, requiring reliability to be assessed on a case by case basis. This is consistent with the Law Commission’s recommendation in its previous reports. However, we note the Select Committee specifically rejected this approach.
- Amend either s 19 or the definition of “business record” to exclude statements made when criminal proceedings are reasonably contemplated. This would effectively reinstate the limitation previously contained in the Evidence Amendment Act (No 2) 1980. However, the Court of Appeal in R v Hovell ruled that a police notebook containing a victim’s statement was admissible, notwithstanding this limitation. It is therefore doubtful whether reinstating this limitation would have the desired effect.
- Amend the definition of “business record” to exclude police notebooks that contain statements or interviews of eyewitnesses or victims. Such documents would be considered under s 18 and subject to the reliability test.
3.33The latter is our preferred approach. It respects, and is consistent with, the Select Committee’s rationale for reinstating the business record exception.
R3 We recommend amending the definition of “business record” to exclude police documents containing statements or interviews with eyewitnesses or victims.
3.34Parties are required to give notice of their intention to adduce hearsay evidence in criminal proceedings under s 22. This written notice must contain:
(a) the party’s intention to offer the hearsay statement in evidence; and
(b) the name of the maker of the statement, if known (subject to the terms of any witness anonymity order); and
(c) if the hearsay statement was made orally, the contents of the hearsay statement; and
(d) if section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and
(e) if section 19 is relied on, why the document is a business record; and
(f) if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and
(g) if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness.
3.35There are three grounds for admissibility under the business record exception: (a) the person is unavailable as a witness; (b) calling the person would serve no useful purpose as they cannot reasonably be expected to recollect the matter; or (c) calling the person would cause undue expense or delay. There appears no reason why information is required as to why a party believes the business record exception applies under paragraphs (a) and (c), but not paragraph (b). This appears to be a drafting oversight that should be rectified.
R4 We recommend amending s 22 so that a party intending to offer a hearsay statement under s 19(1)(b) must give notice as to why no useful purpose would be served by requiring that person to be a witness.