The Evidence Act 2006: Act and Analysis, 3rd Edition
Reviewed by Chris Macklin
The first and second editions of this book will already be well known to many; I am sure I am not the only litigator to have had a High Court Judge wave one edition or the other around during heated (but respectful) argument on an unexpected evidential issue.
Anecdotally, other litigators also report finding this text almost indispensable for court work. This is likely to be heart-warming to the authors, who ambitiously set out to provide a text that will be a “valuable resource on New Zealand’s law of evidence for judges, policymakers, civil and criminal law practitioners, students and legal academics alike.”
The third edition can therefore be expected to build on a solid foundation. In the time permitted with this edition, I have been unable to comprehensively review every point – if that would even be possible for one author!
However, I have had the opportunity to check a few key points against both my own working knowledge, and the second edition. I can summarise the rest of this review by saying that this edition appears to be both a timely update, and the continuance of an already useful resource.
I cannot speak for the full ambit of the intended audience (which, as above, appears to cover anyone in any way associated with the law). Nonetheless, I expect the text would be very useful for any practitioner regularly appearing in court, whether in the civil or criminal jurisdiction.
Being a predominantly criminal practitioner, I focused on two very common issues that arise in the course of jury trials: hostile witnesses (an issue that often arises with little or no notice during trial), and propensity evidence (more often dealt with in detail pre-trial).
On both issues the commentary has expanded, and usefully covers the key recent case law developments. Equally important, the coverage is well written and therefore easy to follow. This is particularly crucial for those handling issues in the course of a hectic proceeding.
For those unfamiliar with the text, the commentary is arranged around the sections of the Evidence Act, and is thoroughly cross-referenced. Again, this makes all the difference in terms of ease of use, particularly if working under the pressures of a trial or similar.
Out of curiosity I also conducted a spot check of the case law referred to. This edition is formally listed as current to 1 April 2014. Pedantic readers will be pleased to know that the latest Supreme Court decision at that date has been incorporated into the text, and a Court of Appeal case delivered on 1 April 2014 even made it to press (the cases were Dotcom v United States of America  NZSC 24, and Keefe v R  NZCA 113 for those who are curious).
On the basis of both my own “road test” and a spot check of the case law references, the text therefore appears comprehensive and as up-to-the-minute as can be expected from a bound rather than looseleaf source.
I feel bound to note that the authors are not necessarily backward about coming forward and advancing arguments beyond or even contrary to established authority. As much is acknowledged in the Foreword from Justice William Young, who respectfully declines to subscribe to all the views expressed, but nonetheless obviously respects (and no doubt appreciates) the comprehensive and well set out material.
There can never be any substitute for detailed knowledge of the Act and cases, and of course experience applying them in court. No text, this one included, can be an evidence law “silver bullet.” With those arguably trite caveats, this text remains a very useful and accessible resource for lawyers. I would not hesitate to recommend that litigators in particular invest in a copy to accompany them to court. Even if you already have the second edition, it is now showing its age (2010) and the latest edition provides vital and valuable additions to what was already a very good commentary.
The Evidence Act 2006: Act and Analysis, 3rd Edition, by Richard Mahoney, Elisabeth McDonald, Scott Optican and Yvette Tinsley, Brookers Ltd, July 2014, 978-0-864728-61-6, 712 pages, paperback, $100.00 (GST and p&h excluded).
Chris Macklin is a senior prosecutor and partner at Gordon & Pilditch in Rotorua. He specialises in criminal prosecutions, but also regularly conducts prosecutions under the Civil Aviation Act 1990, and acts for the Police in civil proceeds of crime litigation.
Last updated on the 17th March 2016