Evidence Amendment Act (No 2) 1980

  • repealed
  • Evidence Amendment Act (No 2) 1980: repealed, on 1 August 2007, pursuant to section 215 of the Evidence Act 2006 (2006 No 69).

Reprint
as at 29 June 2009

Evidence Amendment Act (No 2) 1980

Public Act1980 No 27
Date of assent4 October 1980
  • Evidence Amendment Act (No 2) 1980: repealed, on 1 August 2007, pursuant to section 215 of the Evidence Act 2006 (2006 No 69).


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.

A general outline of these changes is set out in the notes at the end of this eprint, together with other explanatory material about this eprint.

This Act is administered in the Ministry of Justice


Contents

Title

Documentary hearsay evidence

Oral hearsay evidence in civil proceedings

Oral hearsay evidence in criminal proceedings

Provisions of general application

Miscellaneous provisions


An Act to amend the Evidence Act 1908

BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:

1 Short Title, commencement, and application
  • (1) This Act may be cited as the Evidence Amendment Act (No 2) 1980, and shall be read together with and deemed part of the Evidence Act 1908 (hereinafter referred to as the principal Act).

    (2) This Act shall come into force on the 1st day of January 1981.

    (3) This Act shall apply for the purposes of any proceeding commenced on or after the 1st day of January 1981, but shall not apply for the purposes of any proceeding commenced before that date or any appeal, review, or other proceeding relating to the determination of any such proceeding.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Part 1
Admissibility of hearsay evidence

2 Interpretation
  • (1) In this Part of this Act, unless the context otherwise requires,—

    Business means any business, profession, trade, manufacture, occupation, or calling of any kind; and includes the activities of any Department of State, local authority, public body, body corporate, organisation, or society

    Business record means a document made—

    • (a) Pursuant to a duty; or

    • (b) In the course of, and as a record or part of a record relating to, any business,—

    from information supplied directly or indirectly by any 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 supplied

    Court

    [Repealed]

    Court: this definition was repealed, as from 1 July 1997, by section 17 Arbitration Act 1996 (1996 No 99).

    Document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes—

    • (a) Any writing on any material:

    • (b) Any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:

    • (c) Any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

    • (d) Any book, map, plan, graph, or drawing:

    • (e) Any photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced:

    Duty includes any duty imposed by law or arising under any contract, and any duty recognised in carrying on any business practice

    Party includes the prosecutor or the informant in any criminal proceeding

    Proceeding

    [Repealed]

    Proceeding: this definition was repealed, as from 1 July 1997, by section 17 Arbitration Act 1996 (1996 No 99).

    Statement means any representation of fact or opinion, whether made in words or otherwise; and includes a statement made by a witness in any proceeding.

    (2) For the purposes of sections 3 to 8 of this Act, a person is unavailable to give evidence in any proceeding if, but only if, he—

    • (a) Is dead; or

    • (b) Is outside New Zealand and it is not reasonably practicable to obtain his evidence; or

    • (c) Is unfit by reason of old age or his bodily or mental condition to attend; or

    • (d) Cannot with reasonable diligence be found.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Documentary hearsay evidence

3 Admissibility of documentary hearsay evidence
  • (1) Subject to subsection (2) of this section, and to sections 4 and 5 of this Act, in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if—

    • (a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; or

    • (b) The document is a business record, and the person who supplied the information for the composition of the record—

      • (i) Cannot with reasonable diligence be identified; or

      • (ii) Is unavailable to give evidence; or

      • (iii) Cannot reasonably be expected (having regard to the time that has elapsed since he supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he supplied; or

    • (c) In civil proceedings only,—

      • (i) The maker of the statement had personal knowledge of the matters dealt with in the statement; and

      • (ii) Undue delay or expense would be caused by obtaining his evidence.

    (2) Nothing in subsection (1) of this section shall render admissible in any criminal proceeding any statement in a document that—

    • (a) Records the oral statement of any person made when the criminal proceeding was, or should reasonably have been, known by him to be contemplated; and

    • (b) Is otherwise inadmissible in the proceeding.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

4 Admissibility of previous statement by witness
  • (1) Nothing in section 3(1)(b) of this Act shall render admissible a statement previously made by a person who is called as a witness in any proceeding and gives evidence relating to the matters contained in that statement, unless the Court is of the opinion that its probative value outweighs or may outweigh the probative value of the evidence given by the witness in relation to those matters (whether the statement is consistent or inconsistent with that evidence).

    (2) If the Court is of the opinion that the probative value of the previous statement outweighs or may outweigh the probative value of the witness's evidence, the previous statement shall be admitted at the conclusion of the evidence-in-chief of that witness or during his cross-examination, but not otherwise.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

5 Hearsay evidence not corroboration in certain cases
  • For the purpose of any rule of the common law or of practice or the provisions of any Act requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement that is admissible by virtue of section 3(1)(b) of this Act shall not be treated as corroboration of evidence given at the trial of the proceeding by the maker of the statement other than direct evidence in relation to any matter contained in the statement of which the maker of the statement had personal knowledge.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

6 Proof of document admissible under this Part
  • A statement in a document that is admissible as evidence under this Part of this Act may be proved by the production of—

    • (a) The original document or of the material part of the document in which the statement is contained; or

    • (b) A copy of the original document, or of the material part of the document in which the statement is contained, certified to be a true copy in such manner as the Court may approve.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Oral hearsay evidence in civil proceedings

7 Admissibility of oral hearsay evidence in civil proceedings
  • In any civil proceeding where direct oral evidence of a fact would be admissible, any oral statement made by a person and tending to establish that fact shall be admissible as evidence of that fact if the maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Oral hearsay evidence in criminal proceedings

8 Conditions for admissibility of oral hearsay evidence
  • In any criminal proceeding where direct oral evidence of a fact would be admissible, any oral statement made by a person and tending to establish that fact shall be admissible as evidence of that fact, if—

    • (a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; and

    • (b) The statement qualifies for admission under any of sections 9 to 14 of this Act.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

9 Statement against interest
  • (1) Subject to section 8 of this Act, a statement qualifies under this section for admission if the maker of the statement knew or believed, or may reasonably be supposed by the Court to have known or believed, that the statement was, in whole or in part, against his interest at the time he made it.

    (2) In subsection (1) of this section, interest means any pecuniary or proprietary interest, and any interest in any proceeding pending or anticipated by the maker of the statement.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

10 Statement in course of duty
  • (1) Subject to section 8 of this Act, a statement qualifies under this section for admission if the maker of the statement made it in the performance of any duty, and had no motive to conceal or misrepresent any fact or opinion relating to the subject-matter of the statement.

    (2) For the purposes of subsection (1) of this section, it shall be immaterial whether or not—

    • (a) The matters dealt with in the statement relate to acts of the maker of the statement:

    • (b) The statement was made contemporaneously with the matters dealt with in it.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

11 Pedigree statement
  • Subject to section 8 of this Act, a statement qualifies under this section for admission if—

    • (a) The statement relates to the existence or nature of family relationship or descent; and

    • (b) The maker of the statement was directly or indirectly related by birth or adoption or by or through marriage to the person whose family relationship to or descent from any other person is in issue in any proceeding; and

    • (c) The maker of the statement made it before any dispute about the matters dealt with in the statement arose.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

12 Post-testamentary statement
  • (1) Subject to section 8 of this Act, and to subsection (2) of this section, a statement qualifies under this section for admission if the maker of the statement had previously made a will or other testamentary writing, and the statement relates to the contents of that will or testamentary writing.

    (2) No such statement shall be admissible to prove that the requirements of the Wills Act 1837 of the United Kingdom Parliament have been satisfied.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

13 Statement relating to public or general rights, or Maori custom
  • Subject to section 8 of this Act, a statement qualifies under this section for admission if the statement relates to the existence of a public or general right or of Maori custom.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

14 Dying statement
  • (1) Subject to section 8 of this Act, a statement qualifies under this section for admission if—

    • (a) The maker of the statement is dead; and

    • (b) He knew or believed, or may reasonably be supposed by the Court to have known or believed, that his death was imminent; and

    • (c) He would, if he were not dead, be a competent witness for the party who wishes to adduce the statement as evidence under this section.

    (2) For the purpose of subsection (1) of this section, it shall be immaterial whether or not—

    • (a) The maker of the statement entertained any hope of recovery:

    • (b) The statement related to the cause of its maker's injury or illness:

    • (c) The statement was complete.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Provisions of general application

15 Admissibility of oral and documentary hearsay evidence by consent
  • In any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement, whether oral or in a document, made by a person and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion, with the consent of all the parties to the proceeding.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

16 Court may draw inference, etc
  • For the purpose of deciding whether or not any statement is admissible as evidence under this Part of this Act, the Court may draw any reasonable inference from the circumstances in which the statement was made and, in the case of a statement in a document, from the form or contents of the document in which it is contained; and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be a certificate of a medical practitioner.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    Section 16 was amended, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48) by omitting registered. See sections 178 to 227 of that Act as to the transitional provisions.

17 Weight to be attached to hearsay evidence
  • In determining the weight, if any, to be attached to a statement that is admissible as evidence under this Part of this Act, the Court shall have regard to all the circumstances from which any inference can reasonably be drawn relating to the accuracy or otherwise of the statement, and, in particular, to—

    • (a) The time when the statement was made in relation to the occurrence or existence of the facts or opinions stated that the statement is tendered to prove; and

    • (b) The question whether or not the maker of the statement, or any person by or through whom information was supplied to the maker of the statement, had any motive to conceal or misrepresent any fact or opinion relating to the subject-matter of the statement.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

18 Court may reject unduly prejudicial evidence
  • Notwithstanding sections 3 to 8 of this Act, where the proceeding is with a jury, the Court may, in its discretion, reject any statement that would be admissible in the proceeding under any of those sections, if the prejudicial effect of the admission of the statement would outweigh its probative value, or if, for any other reason, the Court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

19 Power of Court hearing appeal
  • In an appeal from any order made by a Court or by a Judge under this Part of this Act or from any determination of a Court to admit or reject evidence under section 18 of this Act, the Court hearing the appeal may draw its own inferences, and may substitute its own discretion for any discretion exercised by the Court or Judge whose decision is appealed from.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Miscellaneous provisions

20 Savings
  • (1) Nothing in this Part of this Act shall prejudice the admissibility of any evidence that would be admissible apart from the provisions of this Part of this Act.

    (2) Nothing in this Part of this Act shall render admissible any evidence that is inadmissible under any other Act.

    (3) Nothing in this Part of this Act shall derogate from—

    • (a) Section 10 of the principal Act (relating to proof of inconsistent statements of witnesses) or section 11 of the principal Act (relating to cross-examination as to previous statements in writing):

    • (b) The rules of the common law relating to the admissibility of evidence as to complaints:

    • (c) The rules of the common law or the provisions of any Act relating to the admissibility of confessions and admissions of the parties:

    • (d) The rules of the common law relating to evidence of character:

    • (e) The rules of the common law or the provisions of any Act relating to the reading in evidence of depositions taken at a standard committal or for the purposes of a committal hearing in a trial on indictment.

    Section 20(3)(e): amended, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).

21 Repeals

Part 2
Convictions, etc, as evidence in civil proceedings

22 Interpretation
  • In this Part of this Act, unless the context otherwise requires,—

    Court-martial means a Court Martial constituted under the Armed Forces Discipline Act 1971 or the Naval Discipline Act 1957 of the United Kingdom Parliament (as applied to the New Zealand Naval forces by section 15 of the Navy Act 1954); and includes a disciplinary court constituted under the said Naval Discipline Act 1957 (as so applied)

    Conviction,—

    • (a) In relation to a Court Martial constituted under the Armed Forces Discipline Act 1971, means a finding of guilty that is duly confirmed; and includes a substituted finding of guilty that falls to be treated as a finding of the Court duly confirmed; and

    • (b) In relation to a court-martial or a disciplinary court constituted under the Naval Discipline Act 1957 of the United Kingdom Parliament (as so applied), means a finding of guilty; and includes a substituted finding of guilty that falls to be treated as a finding of the court-martial; and

    • (c) In relation to a court-martial constituted under the Armed Forces Discipline Act 1971, means a finding of guilty; and includes a substituted finding of guilty that falls to be treated as a finding of the court-martial.

    Conviction: in paragraph (a) the Armed Forces Discipline Act 1971 has been substituted for the repealed New Zealand Army Act 1950 and the repealed Royal New Zealand Air Force Act 1950. In view of paragraph (c), paragraph (a) is now virtually spent.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

23 Conviction as evidence in civil proceeding
  • (1) In any civil proceeding, the fact that a person has been convicted of an offence by or before any Court in New Zealand, or by a court-martial in New Zealand or elsewhere, shall be admissible as evidence for the purpose of proving that he committed that offence, where to do so is relevant to any issue in the civil proceeding.

    (2) This section shall apply—

    • (a) Whether the person in question was convicted of the offence before or after the commencement of this Act; and

    • (b) Whether he was convicted on a plea of guilty or otherwise; and

    • (c) Whether or not he is a party to the civil proceeding;—

    but no conviction shall be admissible under this section unless it is a subsisting one.

    (3) Where any evidence is admitted under this section,—

    • (a) Any party to the proceeding may nevertheless adduce evidence tending to prove that that person did not commit the offence of which he was convicted:

    • (b) Without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document that is admissible as evidence of the conviction, and the contents of the information, complaint, indictment, or charge-sheet on which the person in question was convicted, shall be admissible in evidence for the purpose of identifying those facts.

    (4) Nothing in this section shall limit or affect any other enactment whereby a conviction or a finding of fact in any criminal proceeding is, for the purposes of any other proceeding, made conclusive evidence of any fact.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

24 Conviction as evidence in defamation proceeding
  • (1) In any action for defamation based on a statement made by any person to the effect that any other person has committed an offence, proof that, at the time when the statement was made, that other person had been convicted of the offence by or before any Court in New Zealand, or by any court-martial in New Zealand or elsewhere, shall, subject to subsection (2)(b) of this section, be sufficient evidence in the absence of proof to the contrary that he committed the offence, and the conviction shall be admissible in evidence accordingly.

    (2) This section shall apply—

    • (a) Whether the person in question was convicted of the offence before or after the commencement of this Act:

    • (b) If, but only if, the conviction was subsisting at the time when the statement in question was made.

    (3) Where, in any proceeding in which evidence is admitted under this section, any person is shown to have been convicted of an offence, then, without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document that is admissible as evidence of the conviction, and the contents of the information, complaint, indictment, or charge-sheet on which that person was convicted, shall be admissible in evidence for the purpose of identifying those facts.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

25 Finding of paternity as evidence in civil proceeding
  • Section 8(3) of the Status of Children Act 1969 is hereby amended by inserting, after the words Domestic Proceedings Act 1968, the words (or an affiliation order under any corresponding former Act).

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    The Domestic Proceedings Act 1968 was repealed and replaced by the Family Proceedings Act 1980 (1980 No 94).

26 Copy of document admissible in cases under this Part
  • Where in any civil proceeding the contents of any document are admissible as evidence under section 23 or section 24 of this Act, a copy of that document, or of the material part of the document, purporting to be certified or otherwise authenticated by or on behalf of the Court or authority having custody of that document, shall be admissible as evidence and shall be taken to be a true copy of that document or part, unless the contrary is shown.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

27 Proof of conviction
  • (1) Where in any proceeding it is necessary to prove the conviction of any person of an offence, a certificate containing the substance of the conviction for the offence, purporting to be signed by the Registrar or other officer having the custody of the records of the Court by or before which the offender was convicted, shall, upon proof of the identity of the person, be sufficient evidence of the conviction without proof of the signature or official character of the person appearing to have signed the certificate.

    (2) The mode of proving a previous conviction authorised by this section shall be in addition to, and not in exclusion of, any other mode authorised by law.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

28 Repeals

Part 3
Privilege of witnesses

29 Communication during marriage
  • A husband shall not be compellable in any proceeding to disclose any communication made to him by his wife during the marriage, and a wife shall not be compellable in any proceeding to disclose any communication made to her by her husband during the marriage.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

30 Evidence of non-access
  • In any proceeding, either of two spouses may give evidence proving or tending to prove that the spouses did not have sexual relations with each other at any particular time, notwithstanding that the evidence would tend to show that any child born to the wife during the marriage was not the child of the husband.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

31 Communication to minister
  • (1) A minister shall not disclose in any proceeding any confession made to him in his professional character, except with the consent of the person who made the confession.

    (2) This section shall not apply to any communication made for any criminal purpose.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

32 Disclosure in civil proceeding of communication to medical practitioner or clinical psychologist
  • (1) Subject to subsection (2) of this section, no medical practitioner and no clinical psychologist shall disclose in any civil proceeding any protected communication, except with the consent of the patient or; if he is dead, the consent of his personal representative.

    (2) This section shall not apply—

    • (a) In respect of any proceeding in which the sanity or testamentary capacity or other legal capacity of the patient is the matter in dispute:

    • (b) To the disclosure of any communication made to a medical practitioner or a clinical psychologist in or about the effecting by any person of an insurance on the life of himself or any other person:

    • (c) To any communication made for any criminal purpose.

    (3) In this section

    clinical psychologist

    • (a) means a psychologist who is, by his or her scope of practice, permitted to diagnose and treat persons suffering from mental and emotional problems; and

    • (b) includes any person acting in a professional character on behalf of the clinical psychologist in the course of the treatment of any patient by that psychologist

    medical practitioner includes any person acting in his or her professional character on behalf of a medical practitioner in the course of the treatment of any patient by that medical practitioner

    protected communication means a communication to a medical practitioner or a clinical psychologist by a patient who believes that the communication is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or act for the patient.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    Subsection (1) was amended, as from 13 November 1989, by section 4(1) Evidence Amendment Act 1989 (1989 No 104) by substituting no registered medical practitioner and no clinical psychologist shall for a registered medical practitioner shall not.

    Subsection (1) was amended, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48) by omitting registered. See sections 178 to 227 of that Act as to the transitional provisions.

    Subsection (2)(b) was amended, as from 13 November 1989, by section 4(2) Evidence Amendment Act 1989 (1989 No 104) by inserting or a clinical psychologist.

    Subsection (2)(b) was amended, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48) by omitting registered. See sections 178 to 227 of that Act as to the transitional provisions.

    Subsection (3) Clinical psychologist: this definition was inserted, as from 13 November 1989, by section 4(3) Evidence Amendment Act 1989 (1989 No 104).

    Subsection (3) Protected communication: this definition was substituted, as from 13 November 1989, by section 4(3) Evidence Amendment Act 1989 (1989 No 104).

    Subsection (3) was substituted, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48). See sections 178 to 227 of that Act as to the transitional provisions.

33 Disclosure in criminal proceeding of communication to medical practitioner or clinical psychologist
  • (1) Subject to subsection (2) of this section, no medical practitioner and no clinical psychologist shall disclose in any criminal proceeding any protected communication made to him by a patient, being the defendant in the proceeding, except with the consent of the patient.

    (2) This section shall not apply to any communication made for any criminal purpose.

    (3) In subsection (1) of this section, protected communication means a communication made to a medical practitioner or a clinical psychologist by a patient who believes that the communication is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or act for the patient for—

    • (a) Drug dependency; or

    • (b) Any other condition or behaviour that manifests itself in criminal conduct;—

    but does not include any communication made to a medical practitioner or a clinical psychologist by any person who has been required by any order of a Court, or by any person having lawful authority to make such requirement, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or other purpose.

    (4) In subsection (3)

    clinical psychologist

    • (a) means a psychologist who is, by his or her scope of practice, permitted to diagnose and treat persons suffering from mental and emotional problems; and

    • (b) includes any person acting in a professional character on behalf of the clinical psychologist in the course of the treatment of any patient by that psychologist

    drug dependency means the state of periodic or chronic intoxication, produced by the repeated consumption, smoking, or other use of a controlled drug (within the meaning of section 2(1) of the Misuse of Drugs Act 1975) detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug

    medical practitioner includes any person acting in his or her professional character on behalf of a medical practitioner in the course of the treatment of any patient by that medical practitioner.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    Subsection (1) was amended, as from 13 November 1989, by section 5(1) Evidence Amendment Act 1989 (1989 No 104) by substituting no registered medical practitioner and no clinical psychologist shall for a registered medical practitioner shall not.

    Subsection (1) was amended, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48) by omitting registered. See sections 178 to 227 of that Act as to the transitional provisions.

    Subsection (3) was substituted, as from 13 November 1989, by section 5(2) Evidence Amendment Act 1989 (1989 No 104).

    Subsection (3) was amended, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48) by omitting registered wherever it occurred. See sections 178 to 227 of that Act as to the transitional provisions.

    Subsection (4) Clinical psychologist: this definition was inserted, as from 13 November 1989, by section 5(3) Evidence Amendment Act 1989 (1989 No 104).

    Subsection (4) was substituted, as from 18 September 2004, by section 175(1) Health Practitioners Competence Assurance Act 2003 (2003 No 48). See sections 178 to 227 of that Act as to the transitional provisions.

34 Communication to or by patent attorney, etc
  • (1) A registered patent attorney shall not disclose in any proceeding any communication between himself and a client or any other person acting on the client's behalf made for the purpose of obtaining or giving any protected information or advice, except with the consent of the client or, if he is dead, the consent of his personal representative.

    (2) A person shall not disclose in any proceeding any communication between himself and another person made for the purpose of obtaining or giving any protected information or advice sought by that other person for submission to a registered patent attorney in his professional character, except with the consent of that other person, or if he is dead, the consent of his personal representative.

    (3) This section shall not apply to any communication made for any criminal purpose.

    (4) In this section protected information or advice means information or advice relating to any patent, design, or trademark, or to any application in respect of a patent, design, or trademark, whether or not the information or advice relates to a question of law.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

35 Discretion of Court to excuse witness from giving any particular evidence
  • (1) In any proceeding before any Court, the Court may, in its discretion, excuse any witness (including a party) from answering any question or producing any document that he would otherwise be compellable to answer or produce, on the ground that to supply the information or produce the document would be a breach by the witness of a confidence that, having regard to the special relationship existing between him and the person from whom he obtained the information or document and to the matters specified in subsection (2) of this section, the witness should not be compelled to breach.

    (2) In deciding any application for the exercise of its discretion under subsection (1) of this section, the Court shall consider whether or not the public interest in having the evidence disclosed to the Court is outweighed, in the particular case, by the public interest in the preservation of confidences between persons in the relative positions of the confidant and the witness and the encouragement of free communication between such persons, having regard to the following matters:

    • (a) The likely significance of the evidence to the resolution of the issues to be decided in the proceeding:

    • (b) The nature of the confidence and of the special relationship between the confidant and the witness:

    • (c) The likely effect of the disclosure on the confidant or any other person.

    (3) An application to the Court for the exercise of its discretion under subsection (1) of this section may be made by any party to the proceeding, or by the witness concerned, at any time before the commencement of the hearing of the proceeding or at the hearing.

    (4) Nothing in subsection (1) of this section shall derogate from any other privilege or from any discretion vested in the Court by any other provision of this Act or of any other enactment or rule of law.

    (5) In this section Court includes—

    • (a) Any tribunal or authority constituted by or under any Act and having power to compel the attendance of witnesses; and

    • (b) Any other person acting judicially.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

35A Limitation on professional privilege in respect of searches of solicitors' trust accounts
  • (1) This section applies to books of account and accounting records kept—

    • (a) by a practitioner (within the meaning of the Lawyers and Conveyancers Act 2006) or an incorporated firm (within the meaning of that Act) in relation to any trust account money, being money that is subject to section 112 of that Act; or

    • (b) by a nominee company that—

      • (i) is subject to practice rules made by the Council of the New Zealand Law Society pursuant to section 96 of the Lawyers and Conveyancers Act 2006; and

      • (ii) is operated by a barrister and solicitor or an incorporated law firm as a nominee in respect of securities and documents of title held for clients.

    (2) No rule of law conferring any privilege on communications of a professional character between a barrister or solicitor and his client shall prevent, limit, or affect—

    • (a) The issue of a search warrant under section 198 of the Summary Proceedings Act 1957, or the execution of any such warrant issued by a District Court Judge, in respect of any document to which this section applies; or

    • (b) The giving of any evidence relating to the contents of any such document obtained pursuant to such a warrant in any criminal proceedings for any offence described in the warrant, where the warrant was issued by a District Court Judge.

    (3) Nothing in this section shall apply to any search warrant issued, or to any entry in any book of account or accounting record made, before the commencement of this section.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    Section 35A was inserted, as from 13 March 1985, by section 2 Evidence Amendment Act 1985 (1985 No 54).

    Section 35A(1): substituted, on 1 August 2008, by section 348 of the Lawyers and Conveyancers Act 2006 (2006 No 1).

36 Repeals and amendment

Part 4
Taking of evidence overseas or on behalf of overseas Court

37 Interpretation
  • In this Part of this Act,—

    Attendance order means an order made by any Court under section 39 of this Act for the examination of a witness or the production of any specified document by a designated person, or for both such examination and production

    Corresponding Court,—

    • (a) In relation to any Court in a prescribed country, means the Court in New Zealand that is declared by the Minister of Justice, by notice in the Gazette, to be the Court in New Zealand that corresponds to that Court in the prescribed country:

    • (b) In relation to a Court in New Zealand, means the Court in a prescribed country that is declared by the Minister of Justice, by notice in the Gazette, to be the Court in that country that corresponds to that Court in New Zealand:

    Examiner means—

    • (a) Any Judge:

    • (b) Any Registrar or Deputy Registrar of the High Court or of a District Court:

    • (c) Any specified tribunal:

    Prescribed country means any State, territory, or country declared by the Minister of Justice, by notice in the Gazette, to be a prescribed country for the purposes of this Part of this Act

    Specified tribunal means a tribunal specified by the Minister of Justice by notice in the Gazette under section 38(1)(d) of this Act.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

38 Powers of Minister of Justice
  • (1) The Minister of Justice may, by notice in the Gazette, declare—

    • (a) Any State, territory, or country to be a prescribed country for the purposes of this Part of this Act:

    • (b) Any specified Court in New Zealand to be the Court that corresponds to any specified Court in any specified prescribed country:

    • (c) Any specified Court in any specified prescribed country to be the Court that corresponds with any specified Court in New Zealand:

    • (d) Any specified tribunal in New Zealand and any specified tribunal in any specified prescribed country to be tribunals to which this Part of this Act applies.

    (2) This Part of this Act, with any necessary modifications, shall apply to any tribunals specified in any notice given under subsection (1)(d) of this section as if the tribunals were Courts.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

39 Taking of evidence on request from corresponding Court of prescribed country
  • (1) Where, by or under any Act or law of a prescribed country, provision is made for the evidence of any person that is required in connection with any proceeding to be taken otherwise than at the hearing of the proceeding by a Court, a Court in New Zealand that is a corresponding Court to the Court in the prescribed country before which the proceeding is being held may, upon receipt of a request in writing from that Court in the prescribed country, make an order for the examination of a witness or the production of any specified document by any designated person, or both for such examination and production, before an examiner named in the order at a time and place specified in the order.

    (2) The order shall require reasonable notice to be given by post to each party to the proceeding at his address as shown in the request of the time when and the place where the examination is to take place or the document is to be produced.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

40 Summons to witness
  • (1) Upon service on a person of an attendance order, together with the payment or tender of a reasonable sum for expenses, the person shall attend at the time and place appointed, and shall have and be subject to the same rights and liabilities as if he were summoned before the Court by which the order was made.

    (2) For the purposes of subsection (1) of this section, any attendance order made by a specified tribunal shall be deemed to have been made by a District Court.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

41 Examination of witness
  • (1) Subject to any directions contained in the attendance order,—

    • (a) Any person ordered to be examined before the examiner may be cross-examined and re-examined; and

    • (b) The examination, cross-examination, and re-examination of persons before the examiner shall be conducted in the same manner as they would have been conducted before the Court that made the order.

    (2) The examiner may put any question to any person examined before him relating to the meaning of any answer made by that person or relating to any matter arising in the course of the examination.

    (3) An examiner shall have and may exercise such of the powers of the Court by which he was appointed as are necessary for the proper exercise of his functions under this Part of this Act, and may administer oaths and adjourn the examination from time to time as he thinks fit.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

42 Protection of witness
  • (1) A person shall not be compelled by virtue of an attendance order to give any evidence that he could not be compelled to give in any proceeding in New Zealand.

    (2) Any person who is required by virtue of an attendance order to give any evidence may object to that requirement on the ground that, for any stated reason, he could not be compelled to give that evidence in the proceeding in the prescribed country.

    (3) In any case where the person who is subject to an attendance order raises such objection, the following provisions shall apply:

    • (a) The examiner shall—

      • (i) Record the nature of the evidence, and the reasons stated by the person in support of his contention that he could not be compelled to give the evidence in the proceeding in the prescribed country; and

      • (ii) Transmit that record to the corresponding Court with a request for advice on the question whether or not the person could be compelled to give the evidence in the proceeding in the prescribed country:

    • (b) The person shall be required to give the evidence before the examiner, but the examiner shall not transmit that evidence to the corresponding Court unless that Court has advised the examiner that the person could be compelled to give the evidence in the proceeding in the prescribed country.

    (4) Without limiting subsection (1) of this section, a person shall not be compelled by virtue of an attendance order to give any evidence if his doing so would be prejudicial to the security of New Zealand; and a certificate signed by or on behalf of the Attorney-General to the effect that it would be so prejudicial for that person to do so shall be conclusive evidence of that fact.

    (5) In this section references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) of this section to the transmission of evidence given by a person shall be construed accordingly.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

43 Deposition to be signed
  • (1) Where, pursuant to an attendance order,—

    • (a) A person has given evidence to the examiner, his deposition shall be signed by him and by the examiner, or, where the person refuses to sign or requires alterations that the examiner considers to be unjustified, the deposition shall be signed by the examiner, who shall certify that the deposition is a correct record and the reasons for it not being signed by the person:

    • (b) A document has been produced to the examiner by a person not giving evidence, the examiner shall attach to that document a certificate signed by him stating the name of that person.

    (2) Every deposition and document taken before or produced to the examiner pursuant to an attendance order shall be delivered by the examiner to the Court by which the order was made for transmission to the corresponding Court.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

44 Power of New Zealand Court to request corresponding Court in prescribed country to take evidence for use in New Zealand Court
  • (1) Subject to subsection (2) of this section, a Court in New Zealand may, on the application of a party to any proceeding before the Court, request a corresponding Court in a prescribed country to make an order for the examination of a witness or the production of any specified document by a person, or for both such examination and production.

    (2) Such a request may be made in a criminal proceeding if, but only if,—

    • (a) Where the application is made by the accused, the Court considers it necessary or expedient in the interests of justice:

    • (b) Where the application is made by the prosecution, the accused consents.

    (3) Any deposition received from a corresponding Court that purports to have been signed by the deponent and the examiner or to have been certified as a correct record by the examiner may, subject to the rules of law relating to the admission of evidence, be put in as evidence at the hearing of the proceeding.

    (4) Any document received from a corresponding Court may, subject to the rules of law relating to the admission of evidence, be put in at the hearing as if produced at the hearing by the person who produced the document pursuant to the order of the corresponding Court.

    (5) A Court shall take judicial notice of the seal of a corresponding Court and of the signature of any examiner appointed by a corresponding Court.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

45 Power of New Zealand Court to transmit request to other place
  • Where a Court in New Zealand receives a request from a corresponding Court for the examination of a witness or the production of any specified document by a person, and it appears to the New Zealand Court that the witness or person is not in New Zealand and is not proceeding to New Zealand but is in or proceeding to another country that is a prescribed country under the law of the country of the corresponding Court, the New Zealand Court—

    • (a) May transmit the request to a corresponding Court in that other prescribed country, together with such information as it or he possesses concerning the whereabouts and intended movements of the person:

    • (b) Shall give notice to the corresponding Court from which it received the request that the documents have been so transmitted.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

46 Alternative procedure for taking evidence outside New Zealand in civil proceeding in High Court
  • (1) At any stage of any civil proceeding in the High Court where it appears necessary or expedient in the interests of justice, the High Court or a Judge may order that—

    • (a) Any person named in the order be examined upon oath, upon interrogatories or otherwise, at any place outside New Zealand before any officer of the Court, any overseas representative, or any other person named in the order by name or designation; and

    • (b) Any deposition so taken be filed in Court; and

    • (c) Any party to the proceeding be empowered to give that deposition in evidence in the proceeding, on such terms (if any) as the Court or Judge may direct.

    (2) In any civil proceeding in the High Court, if the Court or a Judge thinks fit, instead of making an order for the examination of a witness or person under subsection (1) of this section, the Court or Judge may order that a Letter of Request be issued directed to any overseas Court of competent jurisdiction for the examination of a witness or person named in the order; and thereupon a Letter of Request shall be issued accordingly under the hand of a Judge or Registrar and the seal of the Court in such form as the Court or a Judge may approve or as may be prescribed by rules of Court.

    (3) Letters of Request shall be transmitted to and from an overseas Court through such channels as may be prescribed by rules of Court.

    (4) Subsections (1) to (3) of this section are in addition to and not in derogation from sections 37 to 45 of this Act.

    (5) Rule 177 and rules 177A to 177F of the Code of Civil Procedure (as inserted by rule 8 of the Supreme Court (Miscellaneous) Amendment Rules 1939 (SR 1939/9)) are hereby declared to be and always to have been validly made under the powers conferred by section 3 of the Judicature Amendment Act 1930.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

47 Rules and regulations
  • (1) Without limiting the power to make rules of procedure conferred by the Judicature Act 1908, the District Courts Act 1947, and the Family Courts Act 1980, rules may be made under those Acts prescribing anything that is required to be prescribed or necessary for carrying this Part of this Act into effect.

    (2) The Governor-General may, by Order in Council, make regulations fixing, and requiring the payment of, fees and expenses for or incurred in taking evidence under this Part of this Act.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    Subsection (1) was amended, as from 13 September 2002, by section 6 Family Courts Amendment Act 2000 (2000 No 65) by substituting , the District Courts Act 1947, and the Family Courts Act 1980 for and the District Courts Act 1947. See clause 2 Family Courts Amendment Act Commencement Order 2002 (SR 2002/254).

48 Saving
  • Nothing in this Part of this Act shall limit or affect the power of a Court to require a witness to attend in person before the Court.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

49 Certain provisions of principal Act not to apply to corresponding Court in prescribed country
  • Sections 48A to 48E of the principal Act (as enacted by section 4 of the Evidence Amendment Act 1962) shall not apply to any Court in a prescribed country in respect of which a corresponding Court has been declared in New Zealand.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

Part 5
Proof of photographic copies of documents

50 Proof of photographic copies of documents
51 Further amendments of Evidence Amendment Act 1952
52 Repeal
  • The Evidence Amendment Act 1973 is hereby consequentially repealed.

    This Act was repealed, as from 1 August 2007, pursuant to section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).


Contents

  • 1General

  • 2About this eprint

  • 3List of amendments incorporated in this eprint (most recent first)


Notes
1 General
  • This is an eprint of the Evidence Amendment Act (No 2) 1980. It incorporates all the amendments to the Act as at 29 June 2009. The list of amendments at the end of these notes specifies all the amendments incorporated into this eprint since 31 July 2007. Relevant provisions of any amending enactments that contain transitional, savings, or application provisions are also included, after the Principal enactment, in chronological order.

2 About this eprint
  • This eprint has not been officialised. For more information about officialisation, please see Making online legislation official under Status of legislation on this site in the About section of this website.

3 List of amendments incorporated in this eprint (most recent first)
  • Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41): section 18

    Lawyers and Conveyancers Act 2006 (2006 No 1): section 348