Finlayson Christopher: Evidence Amendment Bill — Second Reading In Committee Third Reading 
Finlayson Christopher: Evidence Amendment Bill — Second Reading In Committee Third Reading 
[Volume:640;Page:10343] 
CHRISTOPHER FINLAYSON (National) 
: 
 I am happy to speak to Parts 1 and 2 although it is fair to say that in the second reading I probably have tortured the House sufficiently on how we actually got to where we are in the bill as reported back. But let me make a couple of comments because to the observer it might seem strange that section 27 of the Evidence Act is amended by inserting new section 12A in quite a different part of the Act. Why we are putting it in the general or preliminary provisions is to make it quite clear upfront that in this category of case nothing will affect the rules of the common law relating to either the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises or in that second category the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant. 
I have already explained in the select committee how section 12A as introduced in clause 5 will differ from the new section 12A as it will be enacted. It was simply that rather than tack a subordinate clause on to the end of the existing section 27(1) which is in the legislation we have brought it together in one section so that the law is as clear as it can be. 
Mr Tanczos made the extremely good point in the second reading that the law even as enacted in this form is not clear beyond all reasonable doubt or beyond any doubt whatsoever—one can apply one’s own test—because there is a reference to the common law and the common law by its very nature is always changing and evolving. It could well be that this area of the common law will change again in the near future because as he said a couple of cases before the superior courts of this land at the present time touch on these issues. 
I will address the points made by Mr Mark in his second reading speech when I deal with those issues in the third reading. It would be good if by the time of any review the Law Commission and Parliament try to codify what exactly are the principles of the common law that we are dealing with here. As Mr Chauvel said there are three exceptions at the moment but it would be good to bring them into the Act because section 6 which is a very important section of the Act talks about one of the purposes of the legislation being: “(f) enhancing access to the law of evidence.” 
 As a result of the changes we have made to clause 5 and to the new section 12A there have to be a couple of minor amendments to clause 6. Rather than have the clause that I have referred to tacked on to the end of section 27 we have put it in the new section 12A and then linked section 27 to the new section 12A by adding a new subsection (4) to section 27 that makes it clear and avoids doubt that this section dealing with defendants’ statements offered by the prosecution is subject to section 12A. 
Part 2 deals with consequential amendments. As can be seen from section 27 certain evidence is not admissible if it is excluded under the provisions of sections 28 29 or 30. As a result of the changes we have made it follows logically that sections 28 29 and 30 need minor amendments by inserting after the words “the defendant” the phrase “or if applicable a co-defendant”. So those consequential amendments are necessary to give some structure to sections 28 29 and 30 in the light of the amendments made to section 27 and to the new section 12A. 
I hope that clarifies the position. The National chief whip is indicating to me that I have been as clear as mud but there we are. It is a technical matter but at the end of the day it is an important matter for the reasons the Minister has outlined. That is why having the Committee stage follow on immediately from the second reading is so necessary.