Finlayson Christopher: Evidence Bill — In Committee 
Finlayson Christopher: Evidence Bill — In Committee 
[Volume:635;Page:6641] 
CHRISTOPHER FINLAYSON (National) 
: 
 This is a very large part and it raises a number of issues so I hope to be able to take a couple of calls. The first provisions of Part 2 deal with hearsay evidence. This is consistent with my theme that the bill amounts to a new dawn in the law of evidence. These provisions are contentious and were the subject of a number of submissions to the Justice and Electoral Committee. 
For example the Criminal Bar Association was opposed to the new hearsay rules. Members of the association thought that the provisions were wrong in principle and unworkable in practice. They did not think that the admission of hearsay should be expanded further than the exceptions that are currently recognised and they thought that the bill would create uncertainty. Certainly some of those comments were replicated in other submissions made to the select committee. Officials from the Ministry of Justice disagreed with them and so did we. 
We note that the Law Commission stated in its report that the overall purpose of the hearsay provisions is to simplify and rationalise the law in civil as well as in criminal proceedings and that the hearsay rule should operate to exclude evidence only if there are sound policy reasons for doing so. That really is at the very heart of it. Clause 18 provides that henceforth hearsay will generally be admissible if: “… (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) either—(i) the maker of the statement is unavailable as a witness; or (ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.” 
Members should note that there are some changes to the rules from what was contained in the bill when it was originally introduced to the House. The first change contained in clause 18A deals with the admissibility of hearsay statements in business records. Following on from submissions we have gone back essentially to the equivalent provision in the Evidence Amendment Act (No 2) 1980. 
The second change which is contained in clause 18B picks up a couple of the High Court Rules that deal with hearsay or statements of belief in certain circumstances. In civil proceedings hearsay statements and documents related to interlocutory applications interrogatories or discovery will be admissible provided that grounds are given. It is appropriate that those sorts of rules are contained in the Evidence Act and are not simply contained in the High Court Rules or their equivalent. 
Clause 18C is a better formulation of what the consequences are for a defendant who does not give evidence in a criminal proceeding and whether that person may offer his or her own statement. Clause 19 provides for a bit of a tidy-up of the requirements of the notice of hearsay in criminal proceedings. 
We take the view that these are good changes that they change the emphasis of the law of hearsay and that they are workable. We have gone through them very carefully and we disagree with the Criminal Bar Association’s view that they are unworkable. On the contrary we say that as the legislation is given time to work out in practice these provisions will be shown to be sensible and achievable rules. 
Next I will address the issue of expert evidence. This is an extremely important question. Clauses 22 and 22A deal with the issue of expert evidence. As a general rule under the existing law opinion evidence would be inadmissible unless it came from an expert and clause 22(1) provides for exactly that. It states: “An opinion by an expert … is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding …”. 
 But it is fair to say that in recent years many proceedings have suffered in terms of cost and in terms of time and delay because of what is often referred to as the battle of experts. It is clear law that the expert is not someone who goes into bat for his or her client but someone who has a duty to the court. That is a very important issue; the person is there to assist the court in reaching its decision. Over the years regrettably both in New Zealand and overseas there have been problems with expert evidence where the expert rather than recognising that primary duty to the court has become as it were a soldier in the army of a particular party. 
As a consequence both in New Zealand and overseas there is increasing dissatisfaction with expert evidence and witnesses because either consciously or subconsciously they slant their testimony in favour of the party who retains them. There is a perception that in many cases the trial process does not afford a reliable means of adjudicating between groups of what could be called biased experts and the judges who seek the assistance of these people find that the experts say exactly contrary things. Bearing in mind those concerns that it why it is important that the select committee has included clause 22A “Conduct of experts in civil proceedings” in the bill. 
Some years ago the Rules Committee of the High Court introduced a code of conduct for experts. Before a person could give evidence as an expert that person would be required to sign a document indicating that he or she had read and understood what was expected of himself or herself in the proceeding. Essentially expert evidence witnesses had to understand the sorts of things I have just been talking about. We have emphasised the importance of this principle by suggesting that clause 22A be enacted in this legislation and that “experts are to conduct themselves in preparing and giving expert evidence in accordance with the applicable rules of court relating to the conduct of experts”. 
Those rules will be re-enacted when the High Court Rules are updated in the next few months and that code of conduct will continue to apply. But we have put this provision into this bill in order to recognise that there has been dissatisfaction with the behaviour of experts and to emphasise through this legislation that experts are expected to conduct themselves to a standard and to know just where their loyalty is to lie. 
The next point I will touch on briefly is clause 26 which is an important clause dealing with improperly obtained evidence. As I said in the second reading debate during the course of our consideration of this clause we had to consider what if anything was to be done about the Judges’ Rules. The Judges’ Rules were originally drawn up by the judges of England and Wales and as I said in the second reading they were imported into New Zealand many years ago. As we were looking at clause 26 and the possible applicability of the Judges’ Rules it became apparent that no one really knew which Judges’ Rules were still in force in New Zealand particularly given the passage of the New Zealand Bill of Rights Act 1990. No one could tell us that or give us a definitive set of those rules. 
So it is quite clear that the time has come for the Judges’ Rules to be updated in the light of the passage of this legislation and in the light of recent developments such as the passage of the New Zealand Bill of Rights Act. That is why we referred to it in the commentary. We had considered incorporating the Judges’ Rules into the bill but we thought that there were constitutional and logistical reasons why we should not. However we noted the advice from the judiciary who have assured us that a practice note of current guidelines on the matter will be issued before the commencement of the new Act. 
The next part I will deal with—I can whip over some of the other parts reasonably quickly— 
Rt Hon Winston Peters 
: I sure hope so! 
CHRISTOPHER FINLAYSON 
: I would have thought that the Minister of Foreign Affairs as a former lawyer would be riveted by this sort of stuff. I am disappointed that he is not. Subpart 8 deals with privilege and confidentiality and there are just a couple of points I want to emphasise—I will certainly speak on the definition of “legal adviser”. We played around with that definition to a certain extent. It not only means a lawyer but also can mean a registered patent attorney or an overseas practitioner as that person—[ 
Interruption 
] Is that my second or my third call Madam Chairperson? 
The CHAIRPERSON (Ann Hartley) 
: Third; you can have another one. 
Hon Mark Burton 
: Times flies when you are having fun. 
CHRISTOPHER FINLAYSON 
: Time flies when you are enjoying yourself. “Overseas practitioner” has also been defined and I will not go into that definition in any detail. 
There are a couple of other matters about Subpart 8 that I would mention. The first concerns clause 54. I mention it not because there were any great submissions on it but because there were no submissions on it. However we decided to retain the privilege for communications with ministers of religion. As the report of the select committee stated we had a good look at that provision and wondered whether the definition was actually rather too narrow because in the old days “minister of religion” was a tolerably clear term but it may not be broad enough to cater for all theological groups in modern society. However we thought that if we were to broaden the definition set out in subclause (2) we ran the risk of exposing the privilege to abuse. There was some debate about whether this clause should be retained and if not whether the general rules on confidentiality would apply but we decided against making any changes to the provision because we thought we might upset too many people. 
Finally I will mention the privilege against self-incrimination. One interesting issue that arose was whether the privilege against self-incrimination should be available to body corporates. This matter was the subject of a number of submissions to the committee. Having given a lot of thought to the issue and having borne in mind some submissions that said it should apply we decided it should not apply. The privilege does not apply in Australia Canada and the United States. I think it still applies on a fairly limited basis to corporations in the United Kingdom. But we took the view that the privilege is an individual or a personal right and that it is designed to protect the human rights of an individual. Although an individual company director or officer of a company could rely on the privilege in an appropriate case we decided that it should not be available to the corporation. 
The only other thing I want to say is about clause 59. As originally introduced the clause dealt with the replacement of privilege in relation to Anton Piller orders. We have broadened that out—as members can see—in the proposed new clause 59 so that it applies not just to Anton Piller orders but also in relation to other types of mandatory disclosure orders in civil proceedings. 
Part 2 is a very large part but I think we have dealt very fairly with the issues. I have tried to deal with the key issues as they have arisen and as I say the select committee was pretty happy with the end product.