Why was s 22A of the Evidence Act 2006 [NZ] needed? To what extent is it to be interpreted with the assistance of the common law?
The New Zealand Law Commission originally hoped that the law of evidence could be codified. That is to say, the planned Act would be called the Evidence Code, and it would be the exhaustive source of evidence law, subject only to case law explaining how it was to be applied, and to legislation subsequently modifying it. It was to replace the common law.
In the rather protracted early stages of its work on this, the Commission produced a draft Evidence Code, which had no reference to the pre-concert exception. Seminars at various locations in New Zealand were held to obtain feedback from interested members of the profession.
On 11 March 1998 I was at the well-attended seminar in Auckland. When I asked what had happened to the pre-concert exception, I was told that it would not survive if the draft Code was enacted, and there would no longer be an “in furtherance” requirement. There was no other discussion of this point.
I must admit to then being unsure whether the issue was understood by the panellists from the Commission. But, assuming – realistically – that they fully grasped the point, the answer would probably mean that the pre-concert rules were to be replaced by the general exception (now, s 18) to the rule excluding hearsay (now, s 17). The pre-concert rules were, after all, a way of providing a reasonable assurance of the reliability of the challenged hearsay evidence.
By late 1999 there could be said to have been some doubt as to whether the Commission was proposing a Code. Although its Report NZLC R55 of August 1999 used “Code” in the title to the proposed legislation, it now contained, as a new clause, what corresponds to the current s 12, recognising that some issues may not be resolved by reference only to the Act.
Anyway, when it was enacted on 4 December 2006 the Evidence Act still had no reference to the pre-concert exception. The Act did not come into force until 1 August 2007. As an indication of some equivocation in the meantime, a speed-wobble if you will, the Act was amended by inserting s 12A (4 July 2007). This preserved the common law rules relating to the pre-concert exception.
Obviously, someone had at last turned their attention to the point and realised that there was some uncertainty over whether s 18 was an adequate replacement for the common law rules in the context of conspiracies and pre-concerted criminal activities.
The Law Commission understood that s 12A was always intended to be a temporary measure, to be considered in more detail in its first review of the operation of the Act. The review recommended (at R6) the “codification” (the word used at [3.112]) of the common law in what is now s 22A.
So, from 8 January 2017 s 12A was repealed and the current s 22A was inserted into the Act. This attempted to reproduce the common law. The Justice and Electoral Committee Report on the Evidence Amendment Bill does not, in its Commentary, address s 22A, so it seems that the Committee thought this was just a “minor or technical amendment” (the phrase used in the last sentence of the Introduction to the Commentary).
Why the moving of the section? Why not just a new s 12A? It is now at the end of the subpart on hearsay evidence, instead of being placed in the context of s 12 which provides for regard to be had to the common law where the Act does not deal with particular evidence. So this contextual change is consistent with s 22A now being intended to replace the common law.
But it is clear that s 22A is not a complete enactment of the common law. For example, the “in furtherance” requirement in s 22A(c) is limited at common law to things said or done while the common purpose is still in existence, and recounting of past events is not (usually) in furtherance of the common design. Also, statements made after the defendant has ceased to be a participant in the conspiracy or common design are not, at common law, within this exception.
Further, recent comments on s 22A, in Winter v R [2019] NZSC 98 at [63] (and see my note on this case here), question whether it is a complete statement of the common law. Here, attention is on s 22A(a) and (b). It is clear from the Law Commission’s 2013 review of the Act (NZLC R127) that it had in mind the point later referred to here by the Supreme Court (see [3.113] of the review). The Commission here was making the point that a feature of hearsay evidence is that it is adduced to prove the truth of its contents. For example, (my example), if an alleged participant in a conspiracy, who is not available to give evidence, is recorded saying to someone, “D has said he did X, and because he has I will do Y”, that is used to prove the participant understood that D did X and that the participant intended to then do Y. In this non-hearsay use, the evidence is aimed at establishing, or contributing to establishing, a reasonable basis (here, the alleged participant’s belief about what D did and the intention to do Y) for concluding that there was a purpose of doing Y (s 22A(a)), but at common law it is not admissible to prove that D participated in the common purpose: R v Morris (Lee) [2001] 3 NZLR 759 at [17]-[18],[1] and contrast the apparently wider terms of s 22A(b). Only if the thresholds are met by admissible evidence can the statement (“D said he did X”) be used for the hearsay purpose as proof D did act as described (that he did X). The threshold evidence does not include the hearsay use of the challenged evidence, notwithstanding the apparently more permissive wording of s 22A.
It seems plain that the Law Commission intended that s 22A should be informed and elaborated by the common law, and that in this sense it was not a codification. If I cracked the whip, I would have put the provisions of s 22A as a subsection to the existing s 18. It is, after all, an exception to the rule excluding hearsay and it is aimed at providing a reasonable assurance of reliability in the particular context of conspiracies or joint enterprises.
So, not a Code, people should stop using the C word.
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1 The decision is not freely available online, so here are the paragraphs I have mentioned:
“[17] The existence of the conspiracy and the accused’s participation in it must be shown to the requisite standard without use of hearsay. But statements made by other persons about what they are intending to do, against the background of their statements about what they have done, are not hearsay if received as evidence of their state of mind at the time of speaking, and thus of their purposes and intentions at that time. Such statements are received not to prove the truth of the participation of someone not a party to the conversation, but as facts from which the existence of the agreement or combination to engage in an illegal common enterprise may be shown (Ahern at 94). The existence of a conspiracy can thus be shown by their statements, including what they have said about the accused.
“[18] But the accused’s membership of that conspiracy cannot be proved by reference to what the conspirators have said about the accused in his absence. To admit such material for that purpose, as contrasted with the purpose of establishing the existence of a conspiracy, a design by the speakers, would be hearsay (Ahern at 93). It is therefore necessary for the Crown, having shown that there is evidence of a conspiracy, to prove the accused’s membership of it to the requisite standard by reference to matters external to the statements which have been made in the absence of the accused.”