Reliability, Hearsay and the Right to a Fair Trial in New Zealand


Reliability, Hearsay and the Right to a Fair Trial in New Zealand



THE ADMISSION OF statements of absent witnesses in criminal trials has long posed difficult questions of relevance, reliability, probative value, illegitimate prejudice and fairness. This chapter will focus, in particular, on New Zealand’s reliability-based exception to the hearsay exclusionary rule, which is now contained in the Evidence Act 2006 (NZ). New Zealand’s reformed law will be reconsidered in the light of underlying rationales for the common law’s traditional hearsay prohibition and comparative approaches to admitting ‘reliable’ hearsay. It will be argued that the approach to admissibility developed by the Canadian courts, in particular, provides a promising model for statutory interpretation in New Zealand.

The law of hearsay in New Zealand diverges from other common law jurisdictions not only in its doctrinal details, but also owing to the potential significance of a defendant’s right to cross-examine witnesses under section 25(f) of the New Zealand Bill of Rights Act 1990. If any reliability-based exception to the hearsay prohibition is too lax, evidence may be admitted in breach of the defendant’s right to a fair trial. The remedy lies in adopting an approach to the reliability provision, section 18, ensuring actual reliability rather than merely rudimentary circumstantial reliability or in enabling the fact-finder to assess reliability independently of cross-examination. This approach emphasises the primary importance of reliability as the test for the admission of hearsay and limits the role of judicial discretion to admit evidence on a nebulous balancing of probative value and unfair prejudice. It also assists in the identification of a clear burden and standard of proof to be applied to the test of reliability.


The New Zealand Bill of Rights Act 1990 (NZBORA) was passed in fulfilment of New Zealand’s obligations as a state party to the International Covenant on Civil and Political Rights (ICCPR), and after extensive local discussion and debate. The operational provisions of NZBORA juggle ultimately irreconcilable notions of supreme law and neo-Diceyan subservience to parliamentary sovereignty. The NZBORA is not supreme law, since legislation inconsistent with protected rights remains in force and must still be applied by the courts.1 Unlike its UK counterpart, there is no express provision for a ‘declaration of incompatibility’ under NZBORA. However, section 5 provides that the rights and freedoms contained within NZBORA are subject ‘only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.2 Section 6 additionally requires that legislation, wherever possible, should be read consistently with the rights guaranteed by NZBORA.

A criminal defendant’s right to fair trial is set out in section 25 of NZBORA, which replicates Article 14 of the ICCPR. The particular aspect of the right to a fair trial which directly overlaps with the hearsay prohibition is contained in section 25(f), providing that:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.

This wording plainly echoes Article 6(3)(d) of the ECHR, which is extensively canvassed by other contributors to this volume.3 And like its international counterparts, section 25(f) does not confer an absolute right to cross-examine all prosecution witnesses.4 However, any admission of the hearsay statement of an absent witness potentially engages section 25(f), including the reliability-based exception to the hearsay prohibition now contained in the New Zealand Evidence Act 2006. Limitations on the rule against hearsay are limitations on the right to cross-examine. The reliability exception under section 18 is one such limitation.


In 1989 the New Zealand Law Commission concluded that the hearsay rule and its exceptions were ‘unclear, inconsistent, and lacking in coherence’.5 Reform of the hearsay rule in New Zealand was undertaken as a part of a wide-ranging 17-year review of all aspects of evidence law. Rationalisation in pursuit of more extensive admissibility of relevant and probative material was the guiding principle. Rules of inadmissibility were to be retained only where strictly justified by clearly articulated public policy considerations. Against this backdrop, section 17 of the Evidence Act 2006 retained the traditional common law exclusionary rule as a mechanism for protecting a criminal defendant’s right to cross-examine witnesses, but only in a depleted form, subject to new and potentially sweeping inclusionary exceptions.

The Evidence Act 2006 takes prior statements of witnesses appearing at trial6 and implied assertions7 entirely outside the scope of the hearsay prohibition. Moreover, in addition to retaining established hearsay exceptions,8 section 18 of the 2006 Act created a new general reliability exception applicable where the circumstances indicate a ‘reasonable assurance’ that the statement is reliable and the originating witness is unavailable.9 Apart from the use of the word ‘reasonable’, no indication is given of the standard of proof to be applied to the test of reliability. The exception is seemingly drafted to apply to all forms of hearsay evidence and is not merely an inclusionary remedy of last resort.10 Pursuant to section 16, the ‘circumstances’ capable of constituting ‘reasonable assurance of reliability’ include:11

(a) the nature of the statement; and

(b) the contents of the statement; and

(c) the circumstances that relate to the making of the statement; and

(d) any circumstances that relate to the veracity of the person; and

(e) any circumstances that relate to the accuracy of the observation of the person.

Section 18’s dedicated reliability-based hearsay exception is buttressed by a general probative value/prejudicial effect admissibility standard, contained in section 8, which—alongside the threshold test of relevance12—underpins the entire Act. In determining whether probative value outweighs potential unfair prejudice in the instant case, the attention of the court is specifically drawn to whether a criminal defendant will be able to offer an effective defence at trial.13

In summary, the admissibility in New Zealand criminal trials of ostensibly reliable hearsay evidence is determined in the following way. First, the evidence must necessarily be relevant pursuant to section 7. Secondly, assuming that relevant evidence fits the definition of hearsay and no dedicated inclusionary exceptions apply, one must then consider whether the circumstances of the case provide a reasonable assurance of reliability, in satisfaction of section 18. Thirdly, either the statement-maker must be unavailable, or requiring live testimony would occasion undue expense and delay.14 Finally, section 8’s general exclusionary test of probative value versus illegitimate prejudice must be satisfied, including explicit consideration of the defendant’s ability to offer an effective defence.

Two additional procedural rules apply to such evidence. First, pre-trial notice of an intention to adduce a hearsay statement must be served on all the parties.15 Secondly, when adduced at trial under section 18 ‘reliable hearsay’ may be subject to a judicial warning expressly inviting the jury to consider whether to accept the evidence and, if they do accept it, the weight it should be given.16


The common law’s traditional hearsay prohibition can be rationalised as an attempt to ensure that adversarial process honours several underlying or ‘foundational’ principles. At a general level of abstraction these principles are: truth, the protection of the innocent, the importance of liberty, ensuring humane treatment and maintaining procedural integrity.17 If evidence incapable of being tested were routinely admitted a defendant’s ability to offer an effective defence could be unjustly limited, as a defendant’s primary method of challenge would have been removed.18 The fact-finder’s ability to assess reliability and assign weight would also be compromised. A general rule of hearsay exclusion is therefore one way in which the rights of a defendant may be protected and the normative foundations of a common law criminal justice system upheld. However, hearsay exclusion is not synonymous with the right to fair trial, and general appeals to fair trial rights will not succeed in grounding an absolute rule of exclusion.

At a more detailed level of analysis the adoption of a hearsay prohibition may be justified on various grounds. However, it is here that the need for a flexible rather than an absolute rule becomes self-evident. Perhaps the weakest justification is the contention that hearsay evidence is irrelevant. As the Canadian Supreme Court has stated, ‘[h]earsay evidence is not excluded because it is irrelevant—there is no need for a special rule to exclude irrelevant evidence’.19 As a matter of logic, hearsay evidence is clearly capable of being relevant—and indeed, highly probative—to a fact in issue.20 Rather than relevance per se, the issue is more appropriately conceptualised as a question of reliability. Manifestly unreliable evidence cannot be said to establish a fact in the way presupposed by the legal test of logical relevance.21 However, reliability is case-specific and consequently incapable of justifying a rigid and categorical rule of exclusion.

The irrelevancy rationale is closely related to the premise that hearsay evidence contravenes the best evidence rule. New Zealand’s strict requirement that a witness be unavailable means that any hearsay evidence adduced at trial will, in fact, be the best evidence available.22 At the core of this justification is the acknowledgment that as information moves away from its original source the danger of unreliability increases.23 Again, issues of reliability are best considered on a case-by-case basis.24 Automatic exclusion of all hearsay testimony simply because it is not the ‘best’ evidence would be, as Spencer contends, ‘perverse’.25

A further justification for a general exclusionary rule is that the admission of hearsay evidence gives rise to an unwarranted element of surprise. Although valid, this concern is not insurmountable. There are two principal sources of mischief in unwarranted surprise: potential unfair prejudice to the accused and undue delay. In New Zealand, the first of these concerns is addressed by the statutory requirement of pre-trial notice to adduce hearsay evidence.26 As to the second concern, it is doubtful whether the existence of a hearsay rule of exclusion actually avoids delay;27 and in any event, delay is expressly factored into the probative value/unfair prejudice test under section 8 of the Evidence Act 2006.28

The strongest justification for a general hearsay prohibition is that hearsay evidence is not given by the statement-maker under oath in open court, and is not subject to cross-examination.29 It is through these pillars of the adversarial process that reliability is primarily tested. In R v L the New Zealand Court of Appeal recognised the right to cross-examine as fundamental to our system and, endorsing Wigmore’s dictum, declared that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth where credibility is in issue’.30 The witness oath and cross-examination enable a fact-finder to assess character and credibility by observing the witness’s demeanour and to evaluate the accuracy and weight of the evidence through direct and indirect forensic challenge in the courtroom. In addition to these outward manifestations of reliability, being required to testify in open court is presumed to have a sobering effect upon the witness and, in conjunction with the threat of prosecution for perjury, supplies an additional incentive for veracity.

The difficulty of testing evidence without the benefit of cross-examination has prompted all common law jurisdictions to subject hearsay evidence to additional tests of admissibility, either in the form of categorical exclusionary rules or context-sensitive balancing. Provision for a reliability-based exception acknowledges that, notwithstanding the absence of cross-examination in open court, the dangers associated with admitting untested—and possibly untestable—evidence can sometimes be avoided. The question is whether the evidence has been or can be tested independently of direct cross-examination in open court.

No discussion of the rationales for excluding hearsay would be complete without brief mention of the issue of confrontation. Whilst the justifications discussed so far share a foundation in considerations of reliability, they also allude to non-epistemic factors. For example, principles of humane treatment and procedural integrity intuitively feel imperilled by the admission of hearsay evidence. As elucidated by Redmayne in his contribution to this book,31 the justification for such a feeling may be rooted in notions as varied as entrenched common law traditions and habits of mind, through to the ignominy of failing to accuse a defendant to their face. Adoption of an explicit right to confront under the Sixth Amendment to the US Constitution implies that nothing short of direct cross-examination will be adequate to alleviate the dangers of unreliability and to provide a fact-finder with the tools needed to assess the weight of testimonial evidence. However, the discourse of an absolute right of confrontation has found little judicial favour in New Zealand, where cross-examination is linked instead to the defendant’s right to an effective defence and the associated idea of the testability of prosecution evidence.32


It is apparent that a general presumption of unreliability is difficult to sustain for all hearsay evidence. But different common law systems have improvised their own distinctive local solutions to the challenge of sifting reliable from unreliable hearsay. This Section explores the development, or rejection, of a reliability-based exception to the hearsay rule in Canada, England and Wales, Australia, the United States, and in the jurisprudence of the European Court of Human Rights, with a view to shedding comparative light on the current position in New Zealand.

(a) Canada

The Canadian reliability exception to the hearsay prohibition was developed through a series of Canadian Supreme Court decisions.33 The basic test may be satisfied in either one of two ways, as summarised by the Canadian Supreme Court in Khelawon:34

When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth.

Hearsay evidence is admissible, in other words, if (i) its reliability is confirmed by circumstantial guarantees of trustworthiness (CGT); or (ii) the evidence has been subject to prior testing or is capable of future testing by the fact-finder, ie a criterion of ‘testability’.

Canadian case law has consistently emphasised that the reliability exception involves a question of admissibility and not weight. In Khelawon Charron J remarked:35

I stress the nature of the hearsay rule as a general exclusionary rule because the increased flexibility introduced in the Canadian law of evidence in the past few decades has sometimes tended to blur the distinction between admissibility and weight.

Admissibility concerns threshold reliability, whereas the final disposition of the case involves an assessment of ultimate reliability by the trier of fact. In determining whether evidence can be introduced into the trial, the judge fulfils a ‘gate-keeper’ screening role.36 In Starr the relationship between threshold and ultimate reliability was spelt out in the following terms:37

Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.

In Khelawon the Canadian Supreme Court went so far as to state that, ‘failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process’.38 Pragmatically speaking, admissibility hearings are often conducted pre-trial. Without having heard all the evidence to be presented at trial, a judge would find it difficult if not impossible to determine the ultimate reliability of any particular item of evidence. Threshold reliability merely requires a conclusion on whether there are sufficient indications of truthfulness for the fact-finder to complete its assessment of reliability, including deciding what weight (if any) to be given to the evidence.

Indicators of ultimate truth, fabrication or inaccuracy do not become irrelevant when assessing threshold reliability. Rather, the test requires a judge to proceed some distance along the road of determining truth, stopping only at the point at which the judge concludes that there are sufficient indicators of reliability (CGT) for the evidence to be possibly considered reliable by the fact-finder, or alternatively, that the evidence is irremediably unreliable and inadmissible. The point on the continuum where such an assurance is met relates to the question of the standard of proof borne by the party seeking to adduce the evidence.

Calibrating and implementing the test of threshold reliability has caused some difficulty in Canada. In Starr,39 the Supreme Court of Canada attempted to distinguish, on a ‘principled’ basis, between questions seeking to establish the truth of the evidence (ultimate reliability) and those going to the issue of threshold reliability. The majority stated:40