Few doubt the need for exclusionary rules of evidence in criminal cases. The consequences of a criminal conviction and the high burden of proof imposed on prosecutors are enough to justify a strict approach that ensures that the evidence upon which a conviction is entered has reliable probative value. By contrast, it is claimed and believed by many that a much more relaxed regime is acceptable in the trial of civil disputes and that it can safely be left to Judges (who are almost invariably the triers of fact) to attribute varying degrees of weight to evidence once received according to the quality of that evidence. That being so, the need for admissibility rulings is superfluous and counsel should not take valuable court time in raising and arguing admissibility objections.
That was, in my experience, a prevalent view before I went to practise at the New South Wales Bar over 30 years ago and was still the view when I returned to full time practice at the New Zealand Bar 10 years later. In that 10 year period I was exposed to the much stricter approach taken to admissibility issues in civil cases by New South Wales and Federal Court Judges and convinced that a sensible application of the rules of evidence substantially increased both the efficiency and procedural fairness of trials. While not claiming to have been alone in stimulating a change in judicial attitudes, after I had returned to New Zealand, I did take part in efforts to encourage Judges and fellow counsel to regard the rules of evidence as an aid and not an obstruction to the proper determination of cases. That campaign was not aided by the advent of written briefs of evidence, which for many were an open invitation to combine evidence, opinion and submission in the one document and where even basic rules such as the hearsay rule could safely be disregarded.
Then in 2006 came the Evidence Act. While there was much legitimate debate about the content of that Act, in my view, it has effected – or at least is effecting – a quiet revolution in thinking about evidence. Its greatest value in that respect is that it embodies in one easily accessible and authoritative place legal rules that were hitherto scattered throughout case law (and some piecemeal legislation) and that were only faintly known to many lawyers.
Importantly, it highlights what is referred to as the “fundamental” rule of evidence, one that is aimed at ensuring that trials are conducted efficiently and that disputes are determined in accordance with the position that the parties have taken in their pleadings. That is contained in section 7 which provides, in subsection (2): “Evidence that is not relevant is not admissible in a proceeding”. That provision can be linked directly to certain of the stated purposes of the Act (and of the rules of evidence), namely section 6 which, relevantly to this point, reads:
The purpose of this Act is to help secure the just determination of proceedings by –
- Providing for facts to be established by the application of logical rules; and …
- Promoting fairness to parties and witnesses; and …
- Avoiding unjustifiable expense and delay ….
Relevance is of course determined by the pleadings. There is an unfortunate tendency in many cases for the parties to regard the pleadings as somehow becoming of historical interest only once the written briefs of evidence and written opening submissions have been served. That is not so. At the risk of being trite, it needs to be remembered at all times that the pleadings define the issues and the issues define what evidence is relevant and therefore admissible. This warning, sounded in 1986 by Lawton LJ in the English Court of Appeal in Rolled Steel Ltd. v. British Steel Corporation  1 Ch. 246 at 309-310, is as valid today as it was then. He said
I wish, however, to add a comment about the pleading points which had to be considered in this appeal. From the way they were raised by counsel and dealt with by the trial judge I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points. My recent experience in this court shows that some counsel and judges are not giving pleading the attention which they should. Pleadings are formal documents which have to be prepared at the beginning of litigation. They are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and a defendant what claims are being made against him. If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led. Pleadings regulate what questions may be asked of witnesses in cross-examination. When counsel raises an objection to a question or a line of questioning, as [counsel] did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended. If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should at once give a ruling on the application. (Bold added)
The considerations of fairness, efficiency, expedition and saving of costs are evident throughout that passage.
Questions of admissibility are of course normally raised at trial as and when oral evidence is either led or raised on cross-examination or in the case of documentary evidence when the document is tendered. That process enables admissibility concerns to be raised and, as indicated by Lawton LJ, dealt with at the time. Relevance objections however are often dealt with by a Judge saying that he will admit the evidence provisionally or de bene esse on the basis that the trial may not have progressed to the point where he or she is confident as to what the issues in the case are. The problem with that approach is of course it creates uncertainty about the evidence and how it is to be dealt with and responded to. In today’s conditions, where pleadings have been served and particularised, opening submissions filed and served ahead of trial and briefs of evidence served and where case management conferences are often directed to eliminating ambiguities about issues before trial, it is, with respect, difficult to see any justification for the admission of evidence on such a provisional basis. Lawton LJ is to be much preferred.
One trap for young (and old) players does need to be sounded. This arises from the form of rule 9.14 in the High Court Rules relating to the preparation and use of common bundles of documents. The purpose of a common bundle is to secure the placing before the court all documents that any party may wish to put into evidence. The inclusion of a document in the bundle does not, without more, make the document evidence. It only becomes evidence when a witness refers to it while giving evidence or when counsel refers to it in submissions (prior to closing submissions – that is, generally in opening) (rule 9.14(4)(5)).
The trap is that by virtue of rule 9.14(1) the inclusion of a document in the common bundle means that, unless the court otherwise directs, it is considered to be admissible (and also authentic). Worse than that, though, is the fact that rule 9.14(2) requires an admissibility objection to be recorded in the common bundle, in which case the objection is to be determined by the court at the hearing or before the hearing as the court directs. There are two major problems with this requirement:
- Common bundles, in all but the simplest of cases, tend to be voluminous, with the lawyers for the parties erring on the side of caution by including, if not all discovered documents, at least every document that there is the faintest possibility of a need to refer to at the trial. And, because typically the common bundle is not prepared and printed very long before the start of the trial, counsel will had very little time (usually none) to pour through the whole bundle to examine whether all the documents included by the opposing party are admissible.
- In any event, the question of admissibility may not be able to be determined by such an a priori examination. A challenge to admissibility at trial may elicit a requirement from the Judge that the party tendering the document explain either its relevance or the purpose for which the tender is made. In the latter case, after argument, the Judge may admit the document but its admission to be limited and defined by the stated purpose of the tender. None of that is readily able to be sorted out before trial.
This really means that counsel on late receipt of the common bundle is faced with two unattractive choices – either record an objection to every document in the bundle (hardly conducive to the efficient conduct of the proceedings) or seek leave during the trial to raise an admissibility objection, which will raise the prior problem of the requirement of rule 9.14(2) that objections be recorded on the bundle not having been complied with.
[Since writing the above, I have learned that last month new slightly amended rules relating to the common bundle have been promulgated, effective from 1 February 2013. The previous rule 9.14, which I have discussed above, has now become rule 9.5. The rule is the same but the words "if practicable" now qualify the requirement to record admissibility objections in the bundle. That is an apparently small change but one that of course provides a considerable degree of wriggle room, at least where the bundle is received late by counsel. Interestedly, there is also a new requirement to notify admissibility objections to written briefs of evidence within 20 working days of receipt of the brief. If the objection is not settled between counsel within a further 10 working days, notice must be given to the court by the challenging party.]
These procedural issues notwithstanding, the important role that admissibility objections, especially relating to relevance, plays in the fair and efficient conduct of a civil trial requires recognition. It should not be glossed over by some misguided attempt to have a trial proceed in a non-contentious way free of disruption caused by admissibility arguments that, if valid, will serve to ensure that trials are not protracted by irrelevant evidence (led and then having to be responded to) that bears no relationship to the issues that have been pleaded.