Investigation of incidents
Hearsay
A hearsay statement is defined in s4 of the Evidence Act 2006 as a statement that -
- was made by a person other than a witness; and
- is offered in evidence at the proceeding to prove the truth of its contents.
The purpose of the hearsay rule is to best enable evidence to be tested in court. If the original observer is not present, obviously the exercise of fact finding is limited.
There are exceptions to the hearsay rule that align with this purpose. If:
- a person is unavailable as a witness in terms of s16(2) of the EA (see below), or
- it would be unduly expensive or slow to secure their appearance,
the hearsay statement may be admitted under s18(1) of the EA, so long as the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
A person is defined by s16(2) of the EA as being 'unavailable as a witness ' for the purposes if the person:
- is deceased
- resides outside New Zealand and it is not reasonably practicable for him or her to be a witness
- is unfit to be a witness because of age or physical or mental condition
- cannot with reasonable diligence be identified or found
- is not compellable to give evidence.
It is important to recognise hearsay, because it:
- should direct you to the witnesses you require in the proceedings
- should direct you to original witnesses, to try to obtain statements of what people directly observed
- will lead you to consider what you can and cannot include in your witnesses ' briefs of evidence after charges are laid.
Business documents and hearsay
If an enforcement officer is producing a record for court and the content of that record was prepared by someone else (eg, a standard analysis and laboratory report of samples taken), this will be hearsay unless the laboratory analyst is a witness.
Similarly, if the enforcement officer produces a company 's accounting records as evidence of its relationship with an offender, those records would also be hearsay unless the accounts staff were witnesses.
Section 19 of the Evidence Act permits the judge to admit the evidence, if supplied as 'business records '. These are defined in s16 of the EA as records made to comply with a duty or in the course of a business, where the supplier had personal knowledge of the matters dealt with in the information. Any of the following circumstances must apply:
- The person who supplied the information used for the composition of the record is unavailable as a witness (eg, deceased, or not readily identifiable).
- The cost and delay of obtaining the person as a witness is very significant.
- The person might not be reasonably expected to recollect the matters dealt with in the information.
How to take a statement
- Take statements as soon as possible; do not delay until near the end of the statutory time for laying charges just because you can. For witnesses to fall back on their statement in court to remind themselves of relevant details, the statement must have been taken when the details were fresh in mind.
- Use the witness 's own words. If a statement is made in a person 's own words, it is more likely to jog their memory. If a defendant made the statement, it may help avoid a claim that the recording of it was unreliable or inventive.
- Decide what format you will use for recording the statement. Two formats can assist in recording exact words: either a narrative in the first person "I did this, then I did that"; or a question-and-answer format. For example:
Q. "How did you know that the waste water discharge from the chemical treatment process in your workshop was going to meet the conditions of your consent?"
A. "I had asked my contractors to take care of it. I was pretty sure they knew what they were doing because they have been in the business for some time."
By comparison, the first-person narrative would result in something like this:
"I was aware of the conditions of my consent about containing and treating the waste water discharge from my workshop. I had given that job to contractors. I was confident they knew what they were doing. They had been in the business of waste water treatment for some time."
Check that the statement-maker understands the statement and confirms its accuracy. It is important to ensure:
- the statement is taken or interpreted in one 's first language and that an interpreter 's identity and qualifications to interpret are recorded
- wherever possible, that the statement-maker reads the statement, makes any corrections, and signs it as read and correct. You should always add your own signature at the very bottom, confirming this fact. The endorsement at the bottom could be:
I have read my statement. It is true and correct. ... Signed Jane Finder, 18 April 2008
Or:
I have seen Jane Finder read through and sign this statement ... Signed Harry Seeker, Compliance Officer Hamama City Council
