Tanczos Nandor: Evidence Bill — In Committee 
Tanczos Nandor: Evidence Bill — In Committee 
[Volume:635;Page:6646] 
NANDOR TANCZOS (Green) 
: 
 I rise to speak to Part 2 and there are a couple of things that I would like to touch upon. Some of them I did briefly address during my second reading speech but I would like to touch on a couple of points in more detail and on some other matters that I have not already covered in this debate. 
The first point which has been covered to some degree by previous speakers is around issues such as the exclusion of unreliable statements. The Justice and Electoral Committee made a unanimous recommendation to change subclause (2) of clause 24 so that it now states: “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.” 
I think it is important that that clause is read in conjunction with clause 118 “Judicial directions about evidence which may be unreliable”. In that clause if a judge is of the opinion that any evidence given may be unreliable then the judge may warn the jury of the need for caution in deciding whether to accept the evidence or deciding the weight to be given to it. 
But in a criminal proceeding tried with a jury under clause 118(2) the judge must consider whether to give a warning under the subclause I have just referred to whenever certain evidence is given. That includes evidence of a statement made by the defendant to another person that was made while both the defendant and the other person were detained in prison in a police station or in another place of detention among other things. I think that that is important. 
That particular subclause was inserted by the select committee—again unanimously—because of the deep concern that many New Zealanders have around the issue of cellmate confessions. There are cases in this country that currently cause concern where that has been an issue. We felt that ensuring that the judge must consider whether to give a direction in those cases was appropriate just to ensure that the jury would bring its mind to bear on the question of reliability around cellmate confessions. 
I turn to clause 26 “Improperly obtained evidence” and again I did touch on this in the second reading. Subclause (2) states: “The Judge must—(a) find on the balance of probabilities whether or not evidence was improperly obtained;”—if there is a suggestion that it has been—“and (b) if the Judge finds that the evidence has been improperly obtained determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process …”. That issue was the subject of some discussion because if we are looking at particularly breaches of the New Zealand Bill of Rights Act a balancing act already goes on in deciding whether there has been a breach of that Act. So the fact that there should be a further balancing act to determine whether excluding the evidence is proportionate was an issue of some discussion. 
Of course again as I indicated in the second reading this is all predicated on the Shaheed decision and the discussions around that and whether codifying that decision was what Parliament should be doing. Certainly my view is that it is not the way to go. When we look at the issue of excluding improperly obtained evidence there are two purposes for doing that. The first one is to remedy a breach of the rights involved and there are other ways that those breaches can be remedied. Clause 26(3) states with regard to this matter: “(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:”. 
The other issue is the sanction on the agencies of the State. One of the concerns is that if there is no adequate sanction on the agencies of the State then there is a temptation for the State to continue to breach the rights of accused persons with impunity because there is no real sanction against it. There is an argument that a civil case can be taken but anyone who has had the experience of having their rights being breached by the police for example will know that that is a fairly strong call to make. Most people—particularly the most marginalised and powerless in society who are most likely to be subject to such breaches—are often not in a position to take those civil cases. So that is where the exclusion of evidence is an important sanction on the police and other agencies of the State. 
Clause 26(3) provides that in deciding whether the exclusion of evidence is proportionate “… the court may among any other matters have regard to the following: …” and it talks about the importance of the right breached the seriousness of the intrusion upon it the nature of the impropriety—whether it is deliberate reckless or done in bad faith—the nature and quality of the improperly obtained evidence and the seriousness of the offence. It also included in particular whether the evidence is central to the case of the prosecution. We felt very strongly that that was inappropriate. The seriousness of the offence might be a relevant factor. If someone is charged with a very serious heinous offence and a technical breach of his or her rights leads to the exclusion of evidence which means that the person is acquitted then there is a justice issue there and the injustice of it will be very apparent to the public mind. 
But whether the evidence is central to the case of the prosecution is another matter entirely. Regardless of whether we are talking about a minor traffic offence or a serious violent offence to my mind the fact that the prosecution relies on that evidence to get the conviction makes it even more important that we exclude it otherwise we create this enormous temptation for the investigating agencies to deliberately breach rights because that is the only evidence they will get. I think that it should weigh in the opposite direction. In any case the select committee resolved to remove that particular part and I am very pleased that we did so. 
Subpart 6 “Identification evidence” caused us some discussion because we heard that identification evidence is often the least reliable kind of evidence in court. So the bill provides for formal procedures to be developed and used when providing for identification evidence. Previously clause 41(2) stated: “If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure that evidence is inadmissible in a criminal proceeding unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.” 
The select committee changed the burden of proof in clause 41(2) from being “on the balance of probabilities” to “beyond reasonable doubt” and changed “the circumstances in which the identification was made have produced a reliable identification.” rather than that the circumstances “were likely to” produce a reliable identification. I think just strengthening up that provision was important because if there is no good reason for not following a formal procedure then the procedure should be followed. It is as simple as that. If there is any doubt that not following a formal procedure may lead to a reliable identification then of course we must exclude that evidence given the intrinsic unreliability of this kind of evidence. If we were to allow it again there would be the temptation for agencies simply to forgo the formal procedures because they do not produce the evidence that they want. 
One of the provisions that was not changed because there were no submissions on it if I remember correctly was protection of journalists’ sources which is quite curious given that the media is often very quick to point out these matters. But nevertheless we thought that the protections in the bill were adequate for journalists who have promised an informant not to disclose his or her identity to make it not compellable for them to provide that information. A judge of the High Court may order that that protection be overruled in the public interest but it is a fairly high hurdle so we thought that those protections were basically sound. But as I say we thought it unusual that no submissions were heard on that. 
The other issue that I would like to touch on finally is around evidence of jury deliberations. The select committee again unanimously made a recommendation. Previously clause 72 “Evidence of jury deliberations” stated: “A person must not give evidence about the deliberations of a jury concerning the substance of a proceeding unless and only to the extent that the Judge is satisfied—(a) that the evidence tends to establish that a juror has acted in breach of the juror’s duty; and (b) in the circumstances of the particular case the public interest in protecting the confidentiality of the jury deliberations is outweighed by public interest in avoiding or remedying any possible miscarriage of justice.” 
Clause 72 has been changed to: “(1) A person must not give evidence about the deliberations of a jury …” and that: “… does not prevent the giving of evidence about matters that do not form part of the deliberations of a jury including (without limitation)—(a) the competency or capacity of a juror; or (b) any conduct of or knowledge gained by a juror that is believed to disqualify that juror from holding that position.” It makes a clear distinction between the deliberations of a jury and other matters. It is quite right that there should be the ability to provide evidence if the competency or capacity of a juror is at question or if a juror’s conduct or knowledge means that he or she should be disqualified. That evidence should be available to be looked at. 
But we have also included in clause 72(3) that: “(3) [Subclause (1)] does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.” This is important because jury decisions are pretty much considered sacrosanct within the criminal justice system. But we thought it was also important that in exceptional circumstances—and this would not be something that would be widely used—those deliberations should be able to be subject to some examination again because of the real concern that currently exists in the public and among some members of this House around some convictions that continue to cause disquiet in people’s minds. 
 So although there have been some interesting recommendations made about agencies that we might set up to review those cases that raise concerns around miscarriages of justice I think those recommendations should be looked at very seriously by this Parliament. We thought that just allowing in these exceptional circumstances for jury deliberations to be subject to some scrutiny was an important and useful thing. 
That is a taste of just some of the things we covered in the select committee. Some of the things we covered were well outside my expertise and I am still not sure I fully understand what an Anton Piller order actually is although we spent many hours discussing that. Nevertheless I think the select committee did a good job and I also welcome the Minister’s Supplementary Order Paper. 
The question was put that the amendments set out on Supplementary Order Paper 79 in the name of the Hon Mark Burton to Part 2 be agreed to. 
Amendments agreed to. 
Part 2 as amended agreed to.