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The Law Commission is advocating pragmatic amendments to the hearsay rule and the Code of Conduct for Expert Witnesses in order to accommodate tikanga evidence in court. The proposed changes reflect detailed submissions from Chapman Tripp’s Māori legal team, Te Waka Ture, and are part of a wider review by the Law Commission of the Evidence Act 2006.
Context
It is now widely accepted that tikanga is among the values that inform the common law in New Zealand. The Courts will typically rely upon evidence from persons versed in tikanga to inform their understanding. But often testimony about tikanga will be technically hearsay, because it derives from oral Māori tradition and so is indirect evidence where the source cannot be asked questions.
A further issue for evidence of matauranga or tikanga is that it will often be in the nature of opinion evidence. Usually opinion evidence may only be given by experts who are subject to a strict code of conduct requiring them to be independent and impartial. Experts are typically thought of as technical and professional (qualified engineers, forensic scientists, accountants and the like). Tikanga evidence is quite different. Tikanga will often be given of a lived experience, without formal qualifications, and where that lived experience is particular to a specific iwi or hapu and as such not technically independent.
Chapman Tripp’s view
Chapman Tripp’s view is that the rule against hearsay and the Code of Conduct for Expert Witnesses should be amended to reflect the intrinsic characteristics of tikanga. The Law Commission report expressly agrees with both propositions.
Law Commission findings
The Law Commission notes that the hearsay rule is already subject to a number of practical exceptions and says:
[we] agree with Chapman Tripp that the proposed hearsay exception will instead formalise the current position where the courts usually admit the evidence notwithstanding the technical application of the hearsay rule and promote consistency of approach.
The new exception would also work to signal to parties and the courts that oral history has intrinsic value and validity as a means of conveying knowledge within te ao Māori.
One approach to the Code question was to create a simple exception to the rules for matauranga and tikanga evidence but we were concerned that this might potentially diminish their status.
The Commission commented:
[we] agree with the issue raised by Chapman Tripp that removing the expertise requirement through a new exception would risk lessening the respect due to pūkenga who offer expert evidence. In addition, by not recognising expertise, a new exception may also risk lessening the respect due to people who have relevant and substantially helpful evidence … but may not necessarily qualify as pūkenga in te ao Māori.
Accordingly, it has instead asked the Rules Committee to consider amending the Code to better recognise matauranga and tikanga as a unique category of expert evidence.
Chapman Tripp comment
The Law Commission has provided a lengthy, careful and well-reasoned analysis of the changes needed to our evidence processes. We are pleased to have been part of that review and to have had our own lived experience of tikanga evidence accorded such respect.
