Parker David: Evidence Amendment Bill — Second ReadingText is incorporated into the Bound VolumeParker David: Evidence Amendment Bill — Second Reading[Sitting date: 09 June 2016. Volume:714;Page:11868. Text is incorporated into the Bound Volume.]Hon DAVID PARKER (Labour): The Labour Party supports the Evidence Amendment Bill. Can I thank the Justice and Electoral Committee for the work that it has done. Can I also place on record that I think that this is an area that Amy Adams is doing good work in. I do think she genuinely has concerns about the levels of violence—particularly against women—in society and she is determined in her period as Minister of Justice to try to change the settings in a way that brings more of these instances to court for resolution but also deals with these matters in other ways so that we have a reduction in the level of violence against women and children in New Zealand. I commend her for doing that. I am sure were it a Labour member in that office they would be similarly motivated to improve this problem that we have in New Zealand.I for one do not accept that all of the increase that we have in domestic violence shown by our statistics is caused by additional reporting. I think we have got a long enough history of being able to report domestic violence in New Zealand to actually have to face the uncomfortable conclusion that in New Zealand in recent decades we have had increasing rates of violence against women and children and I think that shows up now in the statistics. I do not accept the proposition that the terrible statistics that we now have in relation to domestic violence and violence against children are because it is being reported properly. I think that is part of the situation but I also think it is partly because we do have an appalling record in respect of those issues in New Zealand. Indeed there are so many ways in which New Zealand can hold its head high in respect of outcomes be they socio-economic or environmental compared with other parts of the world—but in terms of our record of violence against children we do have a terrible record. So I support the changes that are being made in respect of evidence particularly in trials relating to sexual violence and I think the proposals that are made by the bill here are proper.I want to highlight one issue that has been picked up by the select committee and that relates to what care we have to take when it comes to the admissibility of hearsay evidence. It is very easy for us in this Parliament to say “Oh we’ve just got to make things easier for the prosecution in order to get convictions.” but we must always guard against injustice. In the legal system in New Zealand and indeed in all of the countries that have followed the Westminster model—and in countries like the United States which I suppose broadly is based on that model albeit going back some centuries further and it has departed from it a little bit more—we say that it is better that a guilty person goes free than an innocent person be found guilty. That is essentially why we have a higher standard of proof in criminal proceedings which have to be proved beyond reasonable doubt compared with civil prosecutions because a criminal prosecution can end with a stain on a person’s reputation and in serious cases the loss of their liberty. It can effectively ruin their lives if they are found guilty wrongly.I am sure there are some limited cases in New Zealand where people are found guilty when they are innocent but more often we have people who are guilty found innocent. And that is where the balance should lie because we should in Western societies be holding firm to this principle. We have got to be very very sure before we impose the coercive powers of the State to penalise people who have been found guilty of crimes.Where does the rule against hearsay fit into that? Well there are some very sound rules of evidence that make sure that prosecutions against people are soundly based rather than just assertion. One of those rules is the best evidence rule: that is a rule where effectively the courts say that the evidence that they will hear in order to convict someone of a crime—and it is actually the same in this respect in civil proceedings as well—the evidence to be tendered is the best evidence that is available. So if there is a secondary source of evidence that is not as good as primary evidence then the court ought not to hear the secondary evidence; it ought to hear the primary evidence.The rule against hearsay is in some ways a subset of the best evidence rule. It says that where there is primary evidence we should hear it and we should not just hear someone giving hearsay evidence of what someone else might have said. There are a number of reasons for that. One is the best evidence rule as I have said. It is also very hard for an accused—or a judge for that matter—to be sure that hearsay evidence is true because the person who is giving the evidence about what they heard did not witness the original event and therefore cannot be challenged as to the details of that evidence or as to the demeanour of the person who was there because they were not there.There are some exceptions to the rule against hearsay and they are practical and they are necessary. For example in respect of a statement that is made by someone before death—and they are no longer alive at the time of a prosecution—obviously they cannot be there to give evidence so there are some limited exceptions to the rule against hearsay in respect of statements of people who are dead. Therefore the best evidence of that dead person is never going to be available to the court and the court will in some instances hear hearsay evidence as to what the deceased person said prior to their death. We can understand that. That is still the best evidence available. Obviously it would not be as good as the original evidence but I am sure that courts and judges can give appropriate warnings to juries in respect of the limitations of that evidence.There are also exceptions relating to business records. This Evidence Amendment Bill tried to make that clearer by saying that where there are standard business records then those business records can be admitted without further first-party proof that they are correct and they can just be admitted as being evidence of what they show rather than there having to be some primary evidence tendered to prove that they are correct. That was another exception to the rule against hearsay.An amendment brought forward by this legislation tried to clear that up but as the select committee found no doubt on the basis of submissions probably from the Law Society—and if it was from the Law Society or the Criminal Bar Association of New Zealand can I thank them for their submission; I expect it was—there was a definition issue. I was not sitting on the select committee but you know as a member of that profession who pays my annual practising fee I am really so pleased that the Law Society coordinates this. Actually those people who make those submissions are not paid but the Law Society does a fantastic service to New Zealand when it gets into the detail of these things. It pointed out that the definition of what was a “business record” was so broad as to possibly include some police statements that ought not to be admissible as a business record as an exception to the rule against hearsay. In respect of that sort of evidence it ought to be provided by the police in accordance with the best evidence rule and not be an exception to the rule against hearsay.So the select committee identified that as a problem with the bill as introduced to the House. I think that the select committee has fixed it by the amendment to clause 7 of the bill which rewords the definition of “business record” in section 16(1) of the Evidence Act to say that this exception “does not include a Police record that contains any statement of interview by or with an eyewitness or a complainant or any other person who purports to have knowledge or information about the circumstances of alleged offending or the issues in dispute in a civil proceeding.” It has made it clear that a witness statement that a policeman takes down cannot be tendered in evidence because that witness statement is effectively a hearsay report by the policeman of what they heard the witness say to them. In that situation we should have the witness before the court giving primary evidence not a police record which is hearsay.