Application to adduce evidence — Evidence Act 2006, ss 7, 8, 17, 18, 21, 59, 69 — privilege for medical communications — R v X [2009] NZCA 531— TK v R [2012] NZCA 185 — Search and Surveillance Act 2012, s 27. The defendant sought an application to adduce evidence, in accordance with the Evidence Act. The defendant was about to go on trial before a jury on six charges; one of injuring with intent to injure; two of assault with intent to injure; one of assault with a weapon; one of threatening to kill; and one of possession of a knife. The first matter was the admissibility of clinical notes of a registered nurse who had treated the complainant. The defence sought to raise the notes as evidence in the trial on the basis that the disclosure was made to a nurse therefore the notes were not confidential information under s 59 of the Evidence Act. Section 59 deals with privilege in relation to medical communications and applies to communications made to a medical practitioner or clinical psychologist . However, the Judge determined that although this was not a matter provided for under s 59, s 69 was applicable. Section 69 provides a more general discretion as to confidentiality. The Judge relied on the test in R v X: that it was reasonable for the complainant to expect his communications with the nurse to be confidential. This would not prevent the defence from cross-examining the defendant on his drug use, but the defence could not rely on the complainant's communication or its detail. The second matter was the admissibility of the defendant's hearsay statements as to his state of mind. The defence sought to adduce evidence in statements relevant to the defendant’s condition, which could be in conflict with s 21 of the Evidence Act which states the defendant in a criminal proceeding who does not give evidence, may not offer his own hearsay statement in evidence in proceedings. The Judge was satisfied that the matters, the defendant's own medical conditions, were relevant and would allow that evidence to be adduced, as per s 21 of the Act. However the manner in which that evidence was to be adduced would require a s 9 agreement. The third matter was a hearsay statement by a witness. The witness was a foreign tourist present at the location of the alleged offending. The witness had left the the city and the Police were unable to locate him. The Crown sought to adduce his statement to the police as evidence in its written form, in conflict with the hearsay rule under s 17. The Judge determined that the evidence was reliable and the defendant's inability to cross-examine the witness would not significantly impact upon the defendant's ability to mount an effective defence. Finally, on the matter of a possible challenge to a search and seizure, where the defence alleged the defendant was searched prior to his arrest, the Judge stated that s 27 of the Search and Surveillance Act 2012 provided for warrantless searches of individuals suspected to be in possession of knives, and that if the defence wished to challenge that search, they could do so in due course. Judgment Date: 5 March 2018.