Evidence Act 2006 Westlaw Lexis Nexis
The former co-conspirators’ rule has been replaced by s 22A: In a criminal proceeding, a hearsay statement is admissible against a defendant if—
(a) there is reasonable evidence of a conspiracy or joint enterprise; and
(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and
(c) the hearsay statement was made in furtherance of the conspiracy or joint enterprise.
For an example of evidence not offered as truth of its contents see James v R [2011] NZCA 219, [2012] 1 NZLR 353, R v Harwood [2010] NZCA 545 from [41] and R v Lal [2012] NZCA 20
See Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508, (2010) 24 CRNZ 582 and Singh v R [2010] NZSC 161, [2011] 2 NZLR 322, (2010) 25 CRNZ 112 for the issues involved where a party seeks to rely on the earlier statements of hostile witnesses.
The hearsay definition of “witness” does not mean that a later witness can give evidence of statements made by an earlier witness when that earlier witness was not asked about the statements: R v Foreman (No 7) High Court, Napier Simon France J, 22/4/2008
Statements/assertions – see Rongonui v R [2010] NZSC 92 , [2011] 1 NZLR 23, (2010) 24 CRNZ 946
Text messages from non-witnesses – see Dyer v R [2014] NZCA 34 and R v Holtham [2008] 2 NZLR 758 (HC)
Evidence about the state of mind of a person unavailable at trial are in a different class than ordinary hearsay – see R v Rajamani Heath J, High Court Auckland 5 June 2008 and R v Liu [2015] NZHC 1125
For a discussion of double hearsay and potential impact on reliability see Key v R [2010] NZCA 115.
For a “label on a package” case see R v Lenaghan [2008] NZCA 123 – note that leave to appeal to the Supreme Court was refused on the basis that the Crown could make a hearsay application to allow the evidence.
Omissions from business records can be admissible hearsay – see Osborn v Community Probation Service High Court Christchurch, Pankhurst J 2/9/2010
s 122 requires the Judge to consider giving a warning about unreliability when hearsay evidence is given.