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Evidence Act 2006
Admissibility rules, privilege, and confidentiality
Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings
33: Restrictions on comment on defendant’s right of silence at trial

Part 1:
Preliminary provisions

General

3Act to bind the Crown 4Interpretation 4ATransitional, savings, and related provisions 5Application

Purpose, principles, and matters of general application

6Purpose 7Fundamental principle that relevant evidence admissible 8General exclusion 9Admission by agreement 10Interpretation of Act 11Inherent and implied powers not affected 12Evidential matters not provided for 12ARules of common law relating to statements of co-conspirators, persons involved in joint criminal enterprises, and certain co-defendants preserved 13Establishment of relevance of document 14Provisional admission of evidence 15Evidence given to establish admissibility

Part 2:
Admissibility rules, privilege, and confidentiality

Hearsay evidence

16Interpretation 17Hearsay rule 18General admissibility of hearsay 19Admissibility of hearsay statements contained in business records 20Admissibility in civil proceedings of hearsay statements in documents related to applications, discovery, or interrogatories 21Defendant who does not give evidence in criminal proceeding may not offer own statement 22Notice of hearsay in criminal proceedings 22AAdmissibility of hearsay statement against defendant

Statements of opinion and expert evidence

23Opinion rule 24General admissibility of opinions 25Admissibility of expert opinion evidence 26Conduct of experts in civil proceedings

Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

27Defendants’ statements offered by prosecution 28Exclusion of unreliable statements 29Exclusion of statements influenced by oppression 30Improperly obtained evidence 31Prosecution may not rely on certain evidence offered by other parties 32Fact-finder not to be invited to infer guilt from defendant’s silence before trial 33Restrictions on comment on defendant’s right of silence at trial 34Admissions in civil proceedings

Previous consistent statements made by witness

35Previous consistent statements rule

Veracity and propensity

Identification evidence

45Admissibility of visual identification evidence 46Admissibility of voice identification evidence 46ACaution regarding reliance on identification evidence

Evidence of convictions and civil judgments

47Conviction as evidence in civil proceedings 48Conviction as evidence in defamation proceedings 49Conviction as evidence in criminal proceedings 50Civil judgment as evidence in civil or criminal proceedings

Privilege and confidentiality

Matters relating to interpretation and procedure

51Interpretation 52Orders for protection of privileged or confidential material, or material relating to matters of State

Privilege

53Effect and protection of privilege 54Privilege for communications with legal advisers 55Privilege and solicitors’ trust accounts 56Privilege for preparatory materials for proceedings 57Privilege for settlement negotiations, mediation, or plea discussions 58Privilege for communications with ministers of religion 59Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists 60Privilege against self-incrimination 61Discretion as to incrimination under foreign law 62Claiming privilege against self-incrimination in court proceedings 63Replacement of privilege with respect to disclosure requirements in civil proceedings 64Informers 65Waiver 66Joint and successive interests in privileged material 67Powers of Judge to disallow privilege

Confidentiality

68Protection of journalists’ sources 69Overriding discretion as to confidential information 70Discretion as to matters of State

Part 3:
Trial process

Eligibility and compellability

71Eligibility and compellability generally 72Eligibility of Judges, jurors, and counsel 73Compellability of defendants and associated defendants in criminal proceedings 74Compellability of Sovereign and certain other persons 75Bank officer not compellable to produce banking records 76Evidence of jury deliberations

Oaths and affirmations

77Witnesses to give evidence on oath or affirmation 78Interpreters to act on oath or affirmation

Support, communication assistance, and views

79Support persons 80Communication assistance 81Communication assistance need not be provided in certain circumstances 82Views

Questioning of witnesses

83Ordinary way of giving evidence 84Examination of witnesses 85Unacceptable questions 86Restriction of publication 87Privacy as to witness’s precise address 88Restriction on disclosure of complainant’s occupation in sexual cases 89Leading questions in examination in chief and re-examination 90Use of documents in questioning witness or refreshing memory 91Editing of inadmissible statements 92Cross-examination duties 93Limits on cross-examination 94Cross-examination by party of own witness 95Restrictions on cross-examination by parties in person 96Cross-examination on previous statements of witnesses 97Re-examination 98Further evidence after closure of case 99Witnesses recalled by Judge 100Questioning of witnesses by Judge 101Jury questions

Alternative ways of giving evidence

102General provisions are subject to provisions for specific situations 102ARelationship of Courts (Remote Participation) Act 2010 to this subpart

General

103Directions about alternative ways of giving evidence 104Chambers hearing before directions for alternative ways of giving evidence 105Alternative ways of giving evidence 106Video record evidence

Giving of evidence by family violence complainants

106AASections 106A and 106B apply to family violence complainants 106AGiving of evidence by family violence complainants 106BApplication by defendant for family violence complainant to give evidence in ordinary way or different alternative way

Giving of evidence by sexual case complainants or propensity witnesses

Giving of evidence by child witnesses

107AASections 107 to 107B apply to child witnesses 107Alternative ways of giving evidence by child witnesses in criminal proceedings 107AApplication by party calling child witness for witness to give evidence in ordinary way 107BApplication by any other party for child witness to give evidence in ordinary way or different alternative way

Giving of evidence by undercover Police officers

108Undercover Police officers 109Effect of certificate under section 108

Giving of evidence by intelligence officers and intelligence sources

109ACertificates relating to intelligence officers and intelligence sources 109BEffect of certificate under section 109A

Giving of evidence by anonymous witnesses

110Pre-trial witness anonymity order 111Effect of pre-trial witness anonymity order 112Witness anonymity order for purpose of High Court trial 113Effect of witness anonymity under section 112 114Trial to be held in High Court if witness anonymity order made 115Judge may appoint independent counsel to assist 116Judge may make orders and give directions to preserve anonymity of witness 117Variation or discharge of witness anonymity order during trial 118Witness in Police witness protection programme

Offences and requirements for disclosure of video records in proceedings that are not criminal proceedings or Family Court proceedings

119Offences 119ARequirements for disclosure of video records in proceedings that are not criminal proceedings or Family Court proceedings 119BMatters Judge or judicial officer must consider before ordering disclosure of video record or giving direction for disclosure

Signature of statements by assumed name

120Persons who may sign statements by assumed name or anonymously

Corroboration, judicial directions, and judicial warnings

121Corroboration 122Judicial directions about evidence which may be unreliable 123Judicial directions about certain ways of offering evidence 124Judicial warnings about lies 125Judicial directions about children’s evidence 126Judicial warnings about identification evidence 126AJudicial directions about misconceptions arising in sexual cases 127Delayed complaints or failure to complain in sexual cases

Notice of uncontroverted facts and reference to reliable public documents

128Notice of uncontroverted facts 129Admission of reliable published documents

Documentary evidence and evidence produced by machine, device, or technical process

General and special rules

130Offering documents in evidence without calling witness 131Admission of depositions 132Documents required to be discovered or included in common bundle 133Summary of voluminous documents 134Admission of documents discovered in civil proceedings 135Translations and transcripts 136Proof of signatures on attested documents 137Evidence produced by machine, device, or technical process 138Authenticity of public documents 139Evidence of convictions, acquittals, and other judicial proceedings 140Proof of conviction by fingerprints 141New Zealand and foreign official documents 142Notification of acts in official documents 143Presumptions as to New Zealand and foreign official seals and signatures 144Evidence of foreign law

Special rules applying where no requirement for legalisation of foreign public document

145Interpretation 146Foreign public documents: certificates as to contracting States under Convention 147Foreign public documents: Convention certificates sufficient authentication of certain matters

Special rules relating to public documents admissible under Australian law

148Evidence of public documents by reference to Australian law 149Evidence of other public documents

Part 4:
Evidence from overseas or to be used overseas

Proceedings in Australia and New Zealand

Interpretation and application

150Interpretation 151Meaning of specified proceeding 152Power of Minister of Justice in relation to certain tribunals 153Act not to apply to certain proceedings in High Court of New Zealand and Federal Court of Australia 153ACourts (Remote Participation) Act 2010 does not apply to remote appearances under this subpart 153BMutual Assistance in Criminal Matters Act 1992 operates in parallel with this subpart

Service of and compliance with New Zealand subpoenas in Australia

154Service of New Zealand subpoenas in Australia 155New Zealand subpoena may require evidence to be given in New Zealand or Australia 156Service of subpoena 157Expenses 158Payment of additional amounts to witness 159Subpoenas for production 160Setting aside of subpoena served in Australia 161Failure to comply with subpoena 162Other powers not affected

Service of and compliance with Australian subpoenas in New Zealand

163Service of Australian subpoenas in New Zealand 164Compliance with Australian subpoena 165Failure of witness to comply with Australian subpoena 166Transmission of documents or things to Australian court 167Other powers to serve subpoenas not affected

Audio links and audiovisual links in New Zealand proceedings

168New Zealand court may receive evidence, and related examination and submissions, by audio link and audiovisual link from Australia 168ACosts of giving evidence, and making examination and submissions, from Australia 169Powers of New Zealand court in Australia 170Evidence, examination, and submissions by audiovisual link 171Evidence, examination, and submissions by audio link 172Rights of Australian counsel

Audio links and audiovisual links in Australian proceedings

173Australian court may take evidence, and receive related examination and submissions, by audio link or audiovisual link from New Zealand 174Powers of Australian court 175Orders of Australian court 176Place where evidence given or examination or submissions made part of Australian court 177Privileges, protections, and immunities of Judges, counsel, and witnesses in Australian proceedings 178Power of Australian court to administer oaths in New Zealand 179Contempt of Australian court 180Assistance to Australian court

Enforcement of Australian orders

181Enforcement of certain orders made by Australian court

Evidence for use in civil proceedings overseas and evidence for use in civil proceedings in High Court

182Interpretation 183Relationship with subpart 1

Evidence for use in civil proceedings overseas

184Application to High Court for assistance in obtaining evidence for civil proceedings in another court 185Power of High Court to give effect to application for assistance 186Privileges of witnesses 187Orders not to bind the Crown or Crown servants

Procedure for taking evidence overseas for use in civil proceedings in High Court

188Procedure for taking evidence outside New Zealand in civil proceedings in High Court

Offences

189False statements

Evidence for use in overseas criminal proceedings

190Interpretation 191Relationship with subpart 1 192Examination of witness at request of overseas court 193Powers may be exercised by Registrar 194Evidence in support of application 195Protection of witnesses 196Witnesses’ expenses 197Solicitor may take affidavit or declaration 198False affidavit or declaration

Rules and regulations

199Rules 200Rules and regulations

Part 5:
Miscellaneous

Regulations

201Regulations

Periodic review of operation of Act

201ARegulations made under section 201(1)(a) may authorise Judge to make order restricting attendance by, or excluding, members of media at making, before trial, of video record of sexual case complainant’s or propensity witness’s evidence 202Periodic review of operation of Act

Transitional provisions

203Notice of hearsay before commencement 204Notice before commencement relating to co-defendants’ veracity 205Notice before commencement concerning propensity evidence about co-defendants 206Identification already carried out 207Transitional provisions relating to Law Practitioners Act 1982 208Transitional provision relating to communication assistance 209Transitional provision relating to cross-examination by unrepresented parties 210Transitional provision concerning alternative ways of giving evidence 211Transitional provision concerning giving of evidence by child complainants 212Transitional provision relating to offering documents in evidence without calling witness 213Transitional provision relating to translation and transcripts 214General

Repeals and amendments

215Repeals 216Consequential amendments

Schedule 1AA:
Transitional, savings, and related provisions

Schedule 1:
Enactments repealed

Schedule 2:
Amendments to other enactments

Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

33: Restrictions on comment on defendant’s right of silence at trial

You could also call this:

"What happens if you stay silent in court"

If you are in a criminal trial, only you, your lawyer, or the Judge can talk about why you did not tell the court your side of the story. Nobody else is allowed to mention that you did not give evidence at your trial. This rule is in place to protect your right to remain silent.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393615.

Topics:

Crime and justice > Courts and legal helpCrime and justice > Criminal law

32: Fact-finder not to be invited to infer guilt from defendant’s silence before trial, or

"You can't be thought guilty just because you stayed silent before a trial."

34: Admissions in civil proceedings, or

"What people say or write can be used as evidence in a civil court case"

Part 2Admissibility rules, privilege, and confidentiality
Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

33Restrictions on comment on defendant’s right of silence at trial

In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.