Upston Louise: Evidence Amendment Bill — First ReadingText is incorporated into the Bound VolumeUpston Louise: Evidence Amendment Bill — First Reading[Sitting date: 02 July 2015. Volume:706;Page:5082. Text is incorporated into the Bound Volume.]Hon LOUISE UPSTON (Minister for Land Information)on behalf of theMinister of Justice: I move That the Evidence Amendment Bill be now read a first time. I nominate the Justice and Electoral Committee to consider this bill. This bill is about better protecting vulnerable witnesses in court processes and includes the first part of our sexual violence reforms. It underlines the Government’s commitment to better support victims of crime and vulnerable people who get caught up in the justice system through no fault of their own.This bill also implements the Government’s response to the Law Commission’s review of the Evidence Act 2006 which was completed in 2013. Although the commission considered the Act to be working well generally it suggested a number of targeted and technical amendments to ensure the Act is up to date and workable in practice. Implementing these recommendations also presents the opportunity to progress further changes aimed at making the court process less traumatic for victims of sexual violence and child witnesses.The first of these changes that I would like to highlight aims to make the criminal trial process easier and less damaging for child witnesses. It will introduce a presumption that in all stages of a criminal trial child witnesses give evidence in alternative ways. Giving evidence in front of a whole court and the defendant and especially being cross-examined can be extremely distressing for any witness let alone a young child. Alternative methods of giving evidence such as through closed-circuit television or from behind screens can help reduce the trauma children experience.These methods can also help to elicit more accurate and reliable evidence especially when the trial is protracted or delayed. A good example of the way this presumption could work in practice is where a child witness gives some of their evidence in a pre-recorded video interview outside court. The bill will introduce a presumption that the video can be played at trial as the child’s evidence-in-chief. Because the interview will have been conducted in a less confrontational environment than a courtroom the process should better support the child’s well-being. It may also improve the quality of the evidence both because the events will be a fresher memory and because stress can make it harder for children to recall events accurately.Currently in all criminal cases involving child complainants the prosecutor has to apply for directions from the judge about how the child is to give evidence. Where a witness is a child a judge can order that the evidence be given by alternative means either on application or on their own initiative. We know that many children who give evidence in criminal cases already do so by alternative means. However applications for use of alternative methods vary across different regions of New Zealand. Applications for older children and young people to give evidence in alternative ways also appear to be less common. This bill will align standard practice and help to ensure all children in criminal trials are protected as much as possible while still allowing the method of giving evidence to be tailored to the case and to the child.It is also important to mention that the presumption will not hamper the court’s ability to hear further evidence from the child. Under the bill only evidence-in-chief can be pre-recorded. When it is the bill explicitly allows other parts of the child’s evidence to be given in other alternative ways. This includes further evidence-in-chief and evidence given in cross-examination which ensures the defence will still be able to effectively cross-examine all witnesses. The Act currently provides that child complainants have an automatic right to a support person. The bill will also extend this right to all child witnesses when they are giving evidence. Support people whom child witnesses know and trust can help to reduce the trauma of going through the criminal trial process without interfering with that process.Another of the bill’s amendments that I would like to draw to the House’s attention will support victims of sexual offending. It is important to emphasise that in the last 30 years our justice system has changed to better recognise the place of victims especially victims of sexual offences. Parliament has changed laws and the police and courts have changed their practices to ease the trauma for victims giving evidence and to better support them through this process. Even so it will never be easy for a victim of a sexual crime to come forward and make a complaint. It will never be easy for a victim to relive their painful experiences in a courtroom facing the judge jury legal counsel media and the person who is alleged to have offended against them and after a trial is over it will never be easy for a victim to deal with the consequences of what they have experienced. What I want to do is to make that inherently stressful process as undemanding as possible while still preserving the core elements of a fair trial.One thing we can do to lessen the distress and revictimisation is to ensure complainants can be prepared for what will happen during the trial. This bill will require the defence to give notice before the trial begins if it intends to use evidence about a complainant’s sexual history with someone other than the defendant. Currently permission to introduce this evidence can be sought from the judge at any time during the trial. A new requirement to give notice earlier means the admissibility of the evidence can be determined before the trial begins. The current court process is one of the most daunting and humiliating processes to go through particularly for sexual assault cases. The very least we can do is ensure the complainant knows what to expect before they come to court. This change was recommended in the Law Commission’s review. The commission also noted that it may improve efficiency and promote more consistent decision-making with regard to the admissibility of evidence.In the same vein as the amendments I have outlined so far the bill will also change the way some evidence is dealt with before trial. It will place new restrictions on access to police videos of witnesses’ evidence in sexual and violent cases and to child complainants’ evidence in all cases. The defence will only be able to view these sensitive video records on police premises or in other places agreed to by the police. To ensure defence access to the video is adequate in all cases the defence will also be able to apply to the court for a copy of the video. The defence will also have automatic access to the transcripts of the videos.The bill also introduces new offences for copying and distributing these types of video record evidence without the court’s permission. The aim of these new restrictions and offences is to reduce the risk that video records are misplaced or used inappropriately. This will serve as an assurance to vulnerable complainants and will help maintain the public’s trust and confidence in the justice system. We are reminded too frequently of how quickly sensitive information can spread out of control in the digital age and the damaging effects that can result. These effects are only heightened when the videos are of vulnerable people having to relive the circumstances of their victimisation. I would also like to take this opportunity to point out that these amendments align with the intent of the Harmful Digital Communications Bill which is currently awaiting its third reading before this House.I want to just touch on a few of the other amendments such as the privilege to plea discussions. Aside from the changes just outlined the amendments proposed by this bill are largely technical and are in line with the Government’s response to the Law Commission’s review of the Act. One of the more substantial technical amendments made is the extension of privilege to plea discussions. Currently privilege applies to settlement negotiations and mediation in civil cases but the law is unclear as to whether plea discussions in criminal cases are privileged. Clarity in this area is increasingly important as plea discussions are now commonplace. Making plea discussions privileged will enable those discussions to be full and frank and will encourage cases to be resolved earlier. The bill will allow a court to order disclosure of a privileged communication or document in certain specified circumstances such as when disclosure is necessary for a subsequent prosecution or perjury.Another amendment will enable more previous consistent statements to be admitted as evidence. There are already some circumstances where previous consistent statements are allowed to be used as evidence in court. The bill will clarify and extend these circumstances slightly to include statements that make up an integral part of the events before the court—for example a record of the 111 call made to police. This amendment modifies the commission’s recommendation about previous consistent statements. The commission considered that decisions about the admissibility of statements should be made in accordance with the Act’s general admissibility rules.The laws of evidence are absolutely salient to the fair and effective operation of the justice system. This bill will help to ensure that those laws not only are fit for purpose but also will reduce the impact on vulnerable witnesses of giving evidence. I commend this bill to the House.