I'm curious about the law of evidence particularly 'hearsay statements' and tikanga Maori and in fact cultures in general with a history of oral traditions. What I find interesting is that 'hearsay evidence' is generally inadmissible (s17) yet many cultures including Maori rely on oral traditions. To clarify, a hearsay statement is a statement made by a person other than a witness in court and is offered as evidence to prove the truth of what it asserts (s4). But I'm interested in the question of reliability in determining whether a hearsay statemnt is admissible, since it is construed in a context that is contrary to those oral traditions. Maori typically relied on oral accounts as relaible statements yet the Evidence Act doesn't seem to take into consideration this cultural phenomena. In effect, then it indirectly discriminates against cultures who would typically rely on oral statements as truth. Any ideas?
UPDATE: I put the query to my Lecturer and he responded as follows -
"The Evidence Act doesn't exclude oral hearsay statements as evidence but it does subject them to a reliability assessment via s 18. Whether the assessment of reliability currently practiced in NZ courts comports with the assessments that might be made by individual cultures is hard to know. It's all a question of "how do you know what you know" - and different groups may see that question differently and be more or less skeptical of evidence accordingly. I would hope that, if the issue ever came up in NZ courts, that NZ judges would be sensitive as to how Maori assess the reliability of their oral history and what they accept as reliable evidence based on that history. However, ultimately, those judges would have to assess reliability on their own – and that could bring in conflicts between how cultural groups make such assessment and how they are made in a court system applying Anglo-American principles of evidence and other laws".
UPDATE: I put the query to my Lecturer and he responded as follows -
"The Evidence Act doesn't exclude oral hearsay statements as evidence but it does subject them to a reliability assessment via s 18. Whether the assessment of reliability currently practiced in NZ courts comports with the assessments that might be made by individual cultures is hard to know. It's all a question of "how do you know what you know" - and different groups may see that question differently and be more or less skeptical of evidence accordingly. I would hope that, if the issue ever came up in NZ courts, that NZ judges would be sensitive as to how Maori assess the reliability of their oral history and what they accept as reliable evidence based on that history. However, ultimately, those judges would have to assess reliability on their own – and that could bring in conflicts between how cultural groups make such assessment and how they are made in a court system applying Anglo-American principles of evidence and other laws".
