Finlayson Christopher: Evidence Bill — Second Reading 
Finlayson Christopher: Evidence Bill — Second Reading 
[Volume:635;Page:6485] 
CHRISTOPHER FINLAYSON (National) 
: 
 Perhaps it is a sad reflection on me but I have to say that working on the Evidence Bill has been the most enjoyable parliamentary experience I have had to date. As I say maybe it is a sad reflection on me. I want to begin by acknowledging the excellent chairmanship of the subcommittee by Russell Fairbrother and to say how much I enjoyed working with him with Nandor Tanczos from the Green Party and with my great colleague Dr Richard Worth. The Minister was kind enough to mention the work of the subcommittee and also the work of the special adviser. I thought it was a very good idea to have a subcommittee of the Justice and Electoral Committee to focus on this bill and I thought we worked pretty well. I also want to acknowledge—and I will say more about this at the third reading—the huge contribution made by the members of the New Zealand Law Society who appeared before the subcommittee members of the Criminal Bar Association of New Zealand and officials from the Ministry of Justice. 
For someone who has practised law for 25 years working on the law at the beginning stages of the process was a most enjoyable and challenging exercise and as we come to the Committee stage there is much I will have to say about particular provisions some of which the Minister has mentioned in his second reading speech. In my speech I want to address some of the key issues that we had to face and I particularly refer to five matters. 
The first concerns bringing rules that had originally been prepared and promulgated by the Rules Committee across to the bill. The Rules Committee is a body established under section 51C of the Judicature Act 1908 and it is responsible for the practice and procedure of all the courts of New Zealand. In order to regulate the procedures of the courts—particularly the High Court—it makes High Court Rules. These are brought before the Regulations Review Committee then take effect as regulations. Sometimes however the Rules Committee goes beyond its ambit to regulate the practice and procedure of the court and sometimes it makes evidential rules. Perhaps this is not surprising but we have brought together in this legislation various clauses that originally appeared as rules of the High Court. 
I particularly refer for example to the new clause 22A which refers to the code of conduct for experts in civil proceedings and to clause 18B which allows hearsay in documents relating to applications discovery or interrogatories in civil proceedings. We felt that these sorts of rules properly belong in the Evidence Bill rather than in the High Court Rules and that they have to receive their imprimatur from the Evidence Bill. 
A second very interesting issue that arose and was the subject of a great deal of work by Hugo Hoffmann parliamentary counsel concerned clause 26 which deals with improperly obtained evidence. We spent some time debating whether the Judges’ Rules should somehow be incorporated into this clause. The Judges’ Rules were originally promulgated by judges in England and brought out to the colonies many years ago. They deal with circumstances where judges will rule that there has been some unfairness in the obtaining of evidence such as to mean that that evidence should not be received. 
Try as we might we had great difficulty finding out what the current Judges’ Rules are given the passage of the New Zealand Bill of Rights Act. Indeed we asked several people who appeared before us we looked up texts but we could never find a definitive up-to-date set of the Judges’ Rules. So our initial inclination was to try to incorporate in the body of clause 26 what we understood to be the Judges’ Rules as set out in that well-known criminal text  
Adams on Criminal Law 
. But that gave rise to a great deal of concern that in actual fact we might be enacting superfluous material. 
So at the end of the day we think it would be a very good idea—and it is referred to in the commentary and it is very important that I read this into  
Hansard 
—if the judges or the Chief Justice in particular were to issue a practice note of current guidelines on the issue of Judges’ Rules and that it is agreed that this will be issued before the commencement of the Act. It is wholly unsatisfactory that practitioners defending criminal cases when dealing with issues of improperly obtained evidence may know that there are Judges’ Rules in existence but no one knows exactly what they are or what their scope is. So the Chief Justice will issue a practice note dealing with the existing Judges’ Rules prior to this legislation coming into force. 
 The third issue I want to touch on concerns clause 54. We actually spent quite some time looking at the issue of the privilege for communications with ministers of religion. There was a school of thought that said this privilege should no longer subsist but that the general law of confidentiality should deal with communications between a minister of religion and a penitent for example. But at the end of the day there had been no submissions on this clause and we decided that we would not make any changes to it although there is a school of thought that says that as drafted it is rather narrowly based and does not take into account other forms of spiritual guidance that people may seek in the course of their daily lives. 
The fourth issue I wanted to deal with very briefly concerns clause 79 which deals with the questioning of witnesses and the ordinary way of giving evidence in criminal or civil proceedings. I particularly want to focus on civil proceedings because the traditional way in which one gives evidence these days in a civil proceeding is to file what is called a written statement or brief of evidence in advance of a trial. The person giving evidence will read that evidence out and then be subjected to cross-examination. 
The New Zealand Bar Association made a very powerful submission to the committee about the desirability of going back to the old practice of viva voce evidence being given by witnesses in civil proceedings because of the abuses that occur with briefs of evidence that largely are prepared by lawyers for their clients. There have been occasions where I have seen people read out briefs of evidence and they did not understand what they were saying or they could not pronounce the words. So we have added a new subclause (2) to clause 79 specifying that any statements made have to be the personal statements of the maker and must not contain statements that are otherwise inadmissible under the legislation. 
The fifth issue which was touched on by the Minister concerns periodic review of the legislation. This is post-legislative review. We decided that given this is the first time in 100 years that there has been a comprehensive reform of the Evidence Act we have to make sure that there is a mechanism in the legislation to allow for periodic review and the Minister has summarised it perfectly well. The idea is that there be a regular review by the Law Commission with the first one to take place as soon as practicable after 1 December 2011 and then on at least one occasion during each 5-year period after that date. We chose the length of 5 years for the first period to ensure that the law could become known by practitioners and that the rules could be developed by the courts. Then in 5 years’ time we will look at it again. 
In conclusion the subcommittee worked very well and I again pay tribute to the chairmanship of Mr Fairbrother. There were good submissions and excellent discussion over many hours. I believe that the resulting work product is very good. I very much look forward to the Committee stage when we can go through the bill part by part and look at some of the matters that I have glossed over rather superficially in this second reading. At the end of the day I believe that this reform will improve the quality of civil and criminal litigation in New Zealand. The reform is overdue but I am delighted that it is finally occurring.