Wilkinson Kate: Evidence Bill — In Committee 
Wilkinson Kate: Evidence Bill — In Committee 
[Volume:635;Page:6644] 
KATE WILKINSON (National) 
: 
 I rise to speak to Part 2 of the Evidence Bill. It certainly is the more meaty part of the bill and deals with matters of admissibility rules privilege and confidentiality much of which has been already covered by my colleague Mr Finlayson. In relation to Subpart 1 which deals with hearsay we commonly know hearsay as testimony or documents that quote persons who are not actually present in court because the person who supposedly knew the facts is not in court to state his or her exact words. Therefore the trier of fact if you like cannot judge that person’s demeanour or the credibility of that witness; and importantly the other party’s lawyer cannot cross-examine him or her. So we have a basic rule that hearsay statements are not admissible at all unless and except as provided. 
 Clause 18(1) is specific as to when hearsay statements are admissible. They are “admissible in any proceeding 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.” 
Mr Finlayson covered clause 18A in respect of hearsay statements that may be admissible when contained in business records. The reason for this exception is fairly self-explanatory which is that business records are generally thought to be reliable. They may even have been independently audited. If they are accepted as reliable then significant savings in time costs and court time may be made rather than the person having to show that each statement in every business record satisfies that reliability test. Clause 18A(1) specifies: “A hearsay statement contained in a business record is admissible if—(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or (b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected … to recollect the matters dealt with in the information he or she supplied; or (c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.” 
Subpart 1 also differentiates between the rules for civil and criminal proceedings. Clause 19 “Notice of hearsay in criminal proceedings” inserts new Subclause 1AA which provides that no hearsay statement may be offered in evidence unless there has been notice. So there are notice requirements. Clause 19(1) provides that a party who proposes to offer a hearsay statement in a criminal proceeding must provide every other party with a written notice stating the party’s intention to offer the hearsay statement in evidence; and the name of the maker of the statement if known. That notice must also be accompanied by a copy of the document in which the statement is contained. There are a few other bits and pieces that relate to hearsay statements in criminal proceedings. 
In looking further through these subparts I see that Mr Finlayson has more than adequately and eloquently covered them. He has covered Subpart 2 “Statements of opinion and expert evidence”. I have to say that Mr Finlayson is certainly more of an expert in evidence matters than I am or ever will be. Clause 20 relates to opinions which is a bit like the hearsay provision. A statement of an opinion is not admissible in a proceeding except as provided for under this part of the Evidence Bill. 
Clause 21 “General admissibility of opinions” states: “A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate or the fact-finder to understand what the witness saw heard or otherwise perceived.” Clause 22 “Admissibility of expert opinion evidence” states: “(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.” 
Subpart 3 deals with defendants’ statements improperly obtained evidence silence of parties in proceedings and admissions in civil proceedings. Clause 24 “Exclusion of unreliable statements” relates to criminal proceedings not civil proceedings. There is a new subclause (2): “The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.” Clause 25 provides for the exclusion of statements that are influenced by oppression. Subclause (1)(b) states that the judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression. 
Clause 26 relates to improperly obtained evidence in criminal proceedings and that evidence must be excluded. The court in determining whether the evidence should be excluded can have regard to a list of matters including the importance of any right breached by the impropriety and the seriousness of the intrusion on it; the nature of the impropriety; the nature and quality of the improperly obtained evidence; the seriousness of the offence; whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used; whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant; whether the impropriety was necessary to avoid apprehended physical danger to the police or others; and whether there was any urgency in obtaining the improperly obtained evidence. So that is a fairly conclusive list to have regard to. 
Subpart 5 deals with the veracity and propensity rules. Clause 36 “Propensity rule” basically means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind being evidence of acts omissions events or circumstances. Again a party may offer that propensity evidence in either civil or criminal proceedings about any person. 
Subpart 8 deals with privilege and confidentiality and certainly there is legal privilege legal confidentiality and trust accounts and such records are privileged. Communication with legal advisers is privileged if the communication was intended to be confidential and made in the course of and for the purpose of the person obtaining professional legal services or the legal adviser giving such services to the person. It is always interesting to note in relation to this privilege for legal communications that it does not actually extend to communication with financial advisers tax advisers and accountants but relates only to those professional legal services. 
As I said earlier Part 2 is the more meaty part of the bill. Its clauses will probably be the most thumbed through in due course—not by me I would have to say. National certainly supports Part 2 of this bill.