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EVD04

Evidence - how it works

NZ $50.00
incl GST
Hon Robert Fisher QC Hon Justice Wild
Hon Robert Fisher QC
LLD
Auckland
The Hon Justice Wild
Hight Court
Wellington

Published: 4 October, 2004
Pages: 112

Introduction

Evidence is information which assists a court to determine facts. The law of evidence determines what evidence may be put before the court and the way in which it is delivered.

Advocates need to carry at least the fundamental principles of evidence in their heads. On virtually all other legal topics they can research the law in advance. Unfortunately evidence issues frequently emerge for the first time while lawyers are on their feet. Usually they need to be dealt with on the spot. Hearings can not be punctuated with adjournments every few minutes to enable counsel to go off and research the law of evidence. So having a reasonable grasp of the law of evidence is important.

There is another reason for understanding fundamental evidence principles. Evidence textbooks and authorities tend to enter the debate at a high level of detail. The details can not be understood without a prior framework of fundamental principles.
Some care is needed before applying overseas authorities to New Zealand conditions. In New Zealand considerable emphasis tends to be placed upon the underlying purpose of evidence principles and pragmatic ways of securing a fair trial – see, for example, the robust approach to hearsay in R v Baker [1989] 1 NZLR 738 (CA). This pragmatism is promoted by a careful preservation of the ignorance of the finer intricacies of the law in this area enjoyed by most New Zealand lawyers. Deprived of that dangerous knowledge, most New Zealand lawyers and judges are forced to fall back on a sense of procedural fairness to see them through. Many parts of Phipson are a horror story best censored.

However that approach can take one only so far. For example in the hurly burly of trial, how many of us would have thought of the point that where a witness has no recollection of the contents of a note that he made, but confirms in the witness box that he made it, he can not use the note to refresh memory for the purpose of giving evidence orally, but must produce the note as an exhibit evidencing its contents (R v Naidanovici [1962] NZLR 334 (CA). Consider, too, the dangers of encountering that rare but dangerous species, the opposing counsel who is not only unco-operative but who has actually taken the trouble to research the law of evidence.

All of this suggests that the advocate who learns the law of evidence will have a considerable advantage over his or her opponent. The object of this seminar is therefore twofold. Some selected topics – hearsay, privilege, experts, computers, propensity, lies, identification and the examination of witnesses being examples – will be dealt with in depth. In addition, a suggestion will be made as to a framework into which the whole of the law of evidence will fit.

Not to be ignored in that exercise is the possibility that the law of evidence will be reformed in the immediate future. In 1989 the Law Commission began work on its reference to make the law of evidence as clear, simple and accessible as was practicable and to facilitate the fair, just and speedy judicial resolution of disputes. In 1999 it produced a report on Evidence (NZLC R55, 1999) and an Evidence Code outlining its proposal. Present intentions are to introduce the Evidence Bill to Parliament in late 2004. The Bill appears to follow closely the recommendations of the Law Commission in its Draft Code. The Draft Code, and the anticipated Evidence Bill would replace the current mosaic of case law and statute with a single code. The purpose of the Code is said to be to:

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


However, the prospect of reform need not deter anyone from studying traditional principles. The date and enactment of the legislation is speculative. More importantly, it is clear that in its final form it will be at least primarily a codification of existing principle.

Authors

Author(s): The Hon Justice Wild, Hon Robert Fisher QC

 

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