Goldsmith PaulHon PAUL GOLDSMITH (National): Thank you Minister for those comments recognising of course that the stakes are very high for both the complainants and the defendants. Of course being convicted of such a crime and sent to prison is a very serious matter for the person involved as well. So ensuring that everybody has their chance to raise issues is important. So the threshold now is much higher.Similarly the next question relates to new section 44 in relation to the—sorry I'm just trying to find the jolly part—Hon Kris Faafoi: Page 8?Hon PAUL GOLDSMITH: Yes. No—no I've moved on from page 8 in terms of the pre-trial reporting. The issue raised again by a number of parties is that under the current arrangements under the Evidence Act the judge may direct evidence to be gathered in an alternative way including cross-examination taking place prior to trial. A number of submitters highlighted a Court of Appeal judgment of 2011 detailing that rare and exceptional circumstances would make such a course of action appropriate. So this is allowing for rather than the complainant being in the full court on the stand during the trial instead to do a pre-recorded interview maybe even a year before it goes to trial. So that has been allowed under the current arrangements in very rare and exceptional circumstances. This bill would make that process an entitlement effectively rather than at the discretion of the judge. So it would make it much more common.That has real implications for the defendant's right to a fair trial as protected by the New Zealand Bill of Rights Act particularly because the pre-trial recording offers no opportunity for the defendant to question a witness based on what happens during the trial and what may happen subsequent to the recording. So a number of submitters—serious submitters—raised serious questions about that and the impact that it has on the fair trial process.So I suppose again I'd like to hear from the Minister. The Minister rather glibly said at the beginning that You know well we just introduced this bill. We heard all the submissions are deeply concerned about it but fundamentally we're not changing anything and we think everything's fine." I'd like a bit more meat on the sandwich from the Minister to explain exactly how he is so confident that defendants will have the ability to have their basic basic opportunity to effectively cross-examine the complainant and have the ability to defend themselves.Hon KRIS FAAFOI (Minister of Justice): If we think of the motivation for the piece of this legislation to try and assist victims of sexual violence to not retraumatise them in the trial period the ability for complainants or propensity witnesses to give evidence—let's use the example that the member gave—via video. It may be some time before the trial actually takes place. I guess the motivation for that is to ensure that the complainant or anyone else who is going to give evidence can do that at a period that is suitable to them and not something that would prolong the pain or the suffering of a defendant because they may have to wait a year as the member mentioned between either giving that evidence and the trial actually occurring. So I guess the proposition within the piece of legislation meets that test.There were obviously concerns about any lag between the video evidence being gathered and the trial actually happening. I would note to the member that the defendant's counsel also get access to that evidence at the time that it is gathered. I note there is a Government Supplementary Order Paper on the table which gives the ability for the judge in a trial or overlooking the issue to put conditions on the access to that video evidence.But I would also remind the member of the point that I made in my opening remarks in terms of striking that balance between protecting victims within this legislation and the right to a fair trial. If the judge believes that the giving of evidence via video whatever the circumstances may be and the way that it is presented is not providing fair trial rights to the defendant they can and they do have the discretion to have the ability to recall a defendant in order for cross-examination to happen.Now obviously I think if you're taking a victim-centric approach or view here we would hope that that would be rare and reasonable because of what we are hoping to achieve with this legislation. But in the interest of fair trial rights there is the ability for the judge to do that. So that's why we believe the valve that's available to the judge in that case of that ilk will allow evidence to be garnered again from the defendant in order for the defendant to express his or her rights to a fair trial."