Fairbrother Russell: Evidence Bill — Third Reading 
Fairbrother Russell: Evidence Bill — Third Reading 
[Volume:635;Page:6805] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I endorse the comments made by my friend Mr Finlayson in his third reading speech. He canvassed much of the material that I wished to touch upon. I have thanked already in my second reading speech the officials the advisers the specialist adviser and the other members of the Justice and Electoral Committee for their work and I merely restate those thanks because they cannot be repeated often enough. 
In my third reading speech I will address one of the challenges put before us by some very highly qualified judges who addressed the committee. They advised that in their opinion any attempt to codify the law of evidence—and particularly this attempt—would be too prescriptive. They were of the opinion that the courts have been very good at sorting out the necessary rules and that there was a danger in prescriptiveness. That challenge was met by a submitter—and unfortunately neither the officials nor I have the name of this submitter but I suspect that it may have been Sir Ivor Richardson. I will read from parts of the submission from that person who is anonymous in the documents available to me. 
This person wrote: “The common law has been and is a hugely important feature of English and New Zealand law. But first it can be fuzzy at the boundaries. And second there is not a single source to which you can go for enlightenment. Textbooks do their best to summarise explain and critique. But you have to go to the decisions of the Judges—which may involve studying quite a large number of judgments in various jurisdictions—and see how the law has evolved in NZ and elsewhere. As well past decisions do not as a matter of course contain checklists let alone a common checklist of relevant factors to be taken into account in reaching a judgment in your particular case.” 
That writer then went on to note that this presented a huge difficulty for trial lawyers and judges some of whom when appointed do not have extensive trial experience and that the work of the appellate courts as a result was demanding and perhaps more onerous than it should have been. 
This submitter concluded as we all concluded: “The Law of Evidence is a crucial element in the administration of justice in our courts—what material can come before the court and how it should be assessed.” In his opinion busy lawyers and judges needed clarity and consistency as base values in the law of evidence. 
That was the challenge we met as a subcommittee and that challenge was clearly met by the Law Commission in its draft report. The recommendations in that draft have been carried through substantially in the Evidence Bill which will hopefully become part of the law after today’s sitting of this House. 
The difficulty demonstrated by this was also raised with us by a group of authoritative lawyers who in a group submission opined about the difficulty of the hearsay rule and the requirement for notice. Their opinion was that the requirement for notice would effectively be a form of defence pleading. That of course is a danger we must be careful about because the element of defence work is always to be in a reactive position and not to enter into a trial in a way that is too prescribed. The element of surprise—or withholding the hand—is an important aspect of defence work. 
The notice required for the intention to lead hearsay evidence which is found in clause 19 is prescriptive at the outset. But there are certain tests that can be passed so ultimately hearsay evidence can be led on oral application to the judge during the trial. The formal steps are there if appropriate; if not appropriate then less-formal steps can be applied. 
In moving around some of my colleagues I have picked up a great fear that allowing hearsay evidence in trials will mean a completely new face to our criminal courts and in fact our trial courts. I have listened carefully to what my friend Mr Finlayson has said. His experience in the civil courts is probably not too dissimilar to my experience in the criminal courts and I think we both agree that the fear of hearsay evidence is misplaced. If we look at the tests before it is admissible—those of reliability and necessity; the reliability of the hearsay evidence and the reasons why it is intended to be led—then we find that fear is dissipated. One need only look at those exceptions that already exist to the hearsay rule such as resgestae evidence—hearsay evidence that is allowed because the test of reliability is inherently passed in the making of a resgestae statement. It is not foreign to our criminal law to allow hearsay evidence. It is unusual but it is not foreign and the resgestae test is already surrounded by the prerequisites of reliability and necessity. With modern-day communication with people speaking from various sources—and the speed at which many events happen in modern society—going to the best evidence is really a prerequisite which will be understood by lawyers and lay people alike. 
One of the beauties of the Evidence Bill when it becomes law is that the busy lawyer in the District Court particularly the duty solicitor—a position reasonably recently evolved—and the overworked legal aid lawyers will have in one lengthy but hopefully clear statute the rules of evidence that they can expect to be applied and can expect the judge to recognise in the pressure of those very busy courts. 
Before I conclude this speech I will just touch on the right to silence which in clauses 28 and 29 we have effectively retained. It is my view that this is an aspect of our criminal law that needs to be reconsidered. Once the Law Commission with its 5-yearly reviews—as dealt with in clause 194A—has examined the workings of the new concept of allowing hearsay evidence guarded only by the tests of reliability and necessity then perhaps we can also re-examine in 2006 or 2011 whether the right to silence impedes or helps the pursuit of justice given that the people who make up the vast bulk of New Zealand society are literate and well educated and given New Zealand Bill of Rights Act enforcement and the necessity for control of our police force and enforcement authorities. 
Finally a matter that has not been dealt with is Subpart 5 in Part 2 dealing with the veracity and propensity clauses. We have tried to restate the law of propensity more clearly—as perhaps it was several years ago—and have set out some clear prerequisites for allowing propensity evidence. We made a careful change which we trust was not pedantic in changing the word “truthfulness” to “veracity” so when calling evidence as to the veracity of a witness we are not impinging on the ultimate test for the court: the truthfulness of the evidence. The rationale behind that of course is that an honest witness can be a mistaken witness and a mistaken witness can be a convincing witness. The real test of the reliability of a witness is his or her veracity rather than the truthfulness of the content of what the witness is saying. We have dealt with the question of expert evidence already. 
In conclusion the changes made in the Committee of the whole House to the definition of “document” and to the cross-examination duties are very worthwhile changes. I believe this bill will enter into our legal lexicon as a very workable manual for those appearing in the busy courts. I commend the bill to the House.