Finlayson Christopher: Evidence Amendment Bill — Second Reading In Committee Third Reading 
Finlayson Christopher: Evidence Amendment Bill — Second Reading In Committee Third Reading 
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CHRISTOPHER FINLAYSON (National) 
: 
 I thank the Minister of Justice for those generous and kind comments. 
The National Party will support the second reading of this bill because it is necessary to make it clear beyond any doubt whatsoever that the common law exceptions that he referred to are retained in the law following the enactment of the Evidence Act last year. In dealing with this second reading speech I want to go through the legislative history because there is at least a question that perhaps the legislation is not necessary and I want to deal with that matter. 
The Evidence Bill was introduced I think in 2005 and referred to the Justice and Electoral Committee. A specialist subcommittee of the select committee was formed chaired by Mr Fairbrother a Labour list MP and on that specialist subcommittee were Dr Richard Worth and myself from the National Party and Nandor Tanczos from the Green Party. We were ably assisted by the officials from the Minister’s department and also by Robert Fisher QC a former judge of the High Court of New Zealand. I also think it is fair to say that a great deal of work was done on the bill as can be seen from the report of the Justice and Electoral Committee when the bill was referred back to the House. I think it is fair to say that the second reading and Committee stage were dealt with very quickly indeed. 
When the bill was introduced and when it went to the select committee the relevant clause which is now the subject of consideration in this amendment bill was clause 23. As originally introduced this clause provided that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible unless the statement is excluded under certain clauses which are not relevant for the purposes of consideration this afternoon. 
During the course of the select committee deliberations concerns were raised about the form of that particular clause as drafted and that message was picked up in the report back to the House. The committee recommended “that clause 23 be amended so that a defendant’s statement would be inadmissible against a co-defendant in joint criminal trials. A statement made by a defendant would be admissible only against that defendant.” But it is very important that I quote the following sentence: “This would maintain the current law relating to statements by co-defendants.” There is at least a very good argument that that would have picked up the common law. So the clause was amended to reflect that intent but there was certainly no intention on the part of the subcommittee to alter the existing law and those common law exceptions. 
Indeed there is an argument based on sections 10 and 12 of the Evidence Act that if this matter had ever gone to litigation then the courts would have said that the common law exceptions were still relevant even if the words were not explicitly referred to in the section. I say that because section 10 which is a very important section deals with the interpretation of the Evidence Act and it provides among other things that the Act “may be interpreted having regard to the common law but only to the extent that the common law is consistent with—(i) its provisions; and (ii) the promotion of its purpose and its principles; and (iii) the application of the rule in section 12.” Section 12 deals with evidential matters not provided for and again provides that the common law can be brought in “to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken”. In those circumstances regard can be had to the common law. 
So based on the statement in the report back to this House on the Evidence Bill and based also on sections 10 and 12 of the Evidence Act there is a very respectable argument that this legislation that we are dealing with today is not in fact necessary. The point is however that after the enactment of the Evidence Act 2006 concerns were raised that the common law exceptions had not been captured in the codification. The Minister very fairly outlined the concerns that a large number of hugely expensive complicated time-consuming trials could be aborted because someone might run the argument that the common law exceptions had not been captured and so the law had fundamentally changed. Hence the need for this amendment legislation and the select committee has dealt with it as quickly as possible in order that it be clear beyond any doubt whatsoever that the common law has been preserved. 
Now then let us look at the Evidence Amendment Bill as introduced and how it has emerged from the select committee. The Minister quite rightly says some changes have been made by the select committee. It is important first to refer to clause 5 which inserts section 12A. As originally introduced that section baldly stated: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” 
 Clause 6 deals with an amendment to section 27. It originally provided that section 27 was to be amended by adding “unless by the co-defendant’s words or conduct the co-defendant is taken to have accepted the truth of the statement made by the defendant”. Not only has the select committee amended the new section 12A so that we bring into the body of that section the rules of common law relating to admissibility of statements of co-conspirators or persons involved in joint criminal enterprises but also we have picked up those concluding words that clause 6 was to add to section 27(1) and made them paragraph (b) of new section 12A. That of course refers to “the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.” 
Then through clause 6 we have amended section 27 by adding subsection (4) which states: “To avoid doubt this section is subject to section 12A.” Some members may think it is rather odd when dealing with an amendment to section 27 of the Act which is in Subpart (3)—in Part 2— which deals with defendants’ statements to have a new section 12A which will be in Part 1 dealing with general provisions. But what we wanted to do was make it upfront in the general principles section that the common law exceptions have not gone west as it were by a side wind but they are still very much part of the law. 
Even if some of us think there was no doubt as to whether the common law was still retained I agree with the Minister that because this is such an important issue because of the cost and the complexity of these multi-defendant trials in the circumstances he has described it is better beyond doubt to dot the i’s and cross the t’s and make it quite clear that the common law exceptions are retained. 
Reference to the common law is not the best way of legislating particularly when there has been such a fundamental root and branch reform of the law but in the circumstances and in the time available what we have done by way of amendment to the new section 12A was considered to be the best way of dealing with this. In my third reading speech I will perhaps point out some routes for the future particularly when it comes to the first 5-yearly review of the Act.