Fairbrother Russell: Evidence Bill — Second Reading 
Fairbrother Russell: Evidence Bill — Second Reading 
[Volume:635;Page:6559] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I am delighted to speak to the second reading of the Evidence Bill and I am also delighted to follow my very good friend Te Ururoa Flavell. I wish I could sing on a karaoke machine as well as he can. I have to say I can find considerable sympathy with the comments he made this evening except the complaint about there being perhaps a lack of consultation by the subcommittee that was given the stewardship of this bill. When this Parliament convened this bill was already before the Justice and Electoral Committee and submissions had already been called for. The time for the making of submissions had long since closed. 
As I recall it just 11 submissions had been received. The subcommittee considered two things: first that it was a small number and secondly that given the time we should remind the public that this bill was still being considered and we re-advertised for submissions. We advertised as extensively as we thought was appropriate and we gave ample opportunity. Nor did we cut off the time. Although we set a closing date for submissions we did not impose any cut-off point and we received submissions right until near the end of our deliberation. On occasions we actively sought submissions and we would have welcomed a member of the Maori Party to have approached us or even to have sat in on any of our hearings; and it is perhaps with some sadness that that did not occur. But I will not brook any criticism of a lack of consultation. 
The fact that there were so few submissions probably reflects two things. First the law of evidence is seen by many if not by most as an arcane area of complexity which is better left alone. It is an area where those who practise law either take to the law of evidence easily and recognise the art form it is or continually stumble over that. 
Secondly those most concerned with the law of evidence are trial lawyers. In this country there is in fact a small Bar—both criminal and civil—and trial lawyers are very very busy people. It is a big obligation for those involved to consider a bill such as this and to come forward with submissions that the writer could be proud about effecting changes. So it was a daunting task for many of the people whom we would have liked to hear from. Trial lawyers were instead represented by their informal and formal organisations rather than there being many submissions from individual trial lawyers. 
Having said that I point out that on occasions the subcommittee felt it necessary to reach out for more assistance. We did that and we were amply rewarded for those efforts. No request we made for assistance was spurned and the assistance we received from the Bar from academics and from lay people was considerable. 
Before I proceed with this speech I must pay special tribute to the committee staff Cath Anyan and Sean Rainey both of whom were efficient effective of great assistance and totally unobtrusive. Their presence was such that we often took them for granted but they never failed to deliver on anything we required. The report is a tribute to Sean Rainey’s writing skills because it seems to encapsulate much that we wanted to include in what is a difficult area of law. 
I must also pay a special thankyou and an acknowledgment to senior legal advisers Chelly Walton and Boris van Beusekom. Given the first reading speech of the Minister the advisers felt able to contribute in a round-the-table-discussion way and perhaps in an academic way rather than advocating any policy position. Their assistance and humour was greatly appreciated. 
Finally in my thank you list I mention two other groups of people. The first group is from the Parliamentary Counsel Office. We were fortunate throughout our deliberations to have had the assistance of Bill Moore and Dr Hugo Hoffmann both of whom approached their task and our sometimes demanding demands and expectations with humour and graciousness. They delivered a product with one exception that met if not exceeded our expectations. 
The one exception of course was in the area of the Judges’ Rules. We decided that the Judges’ Rules should in fact be brought forward into statute and we set our parliamentary counsel the task of endeavouring to prepare a provision that would have incorporated the Judges’ Rules into the Evidence Bill. It seemed to us that it would be an easy task because the  
Adams on Criminal Law 
 textbook has an appendix on the Judges’ Rules and most trial lawyers are familiar with the essence of them. 
Parliamentary counsel came forward with a draft and in so doing they expressed to us their amazement at how difficult it was to produce because the Judges’ Rules have lost a degree of coherence and accessibility and have perhaps been overshadowed by the New Zealand Bill of Rights Act. We finally decided after much deliberation that it was too much to ask of any counsel or specialist adviser to be able to come up with a coherent set of Judges’ Rules and that it was really the obligation of the judges to do so. 
That point takes me to the last category of people whom I want to thank. I thank the specialist adviser the Hon Dr Robert Fisher QC who is a very respected academic a very respected trial and appellate judge and a man who gave us considerable assistance with patience and understanding. He anticipated our concerns often before we got to them. The committee was very fortunate to have that support and I think that the way in which the members of the committee worked reflects the willing contribution from the seven people I have just named. 
I thank my colleagues on the subcommittee Dr Richard Worth Christopher Finlayson and Nandor Tanczos. I think we enjoyed our meeting process. We met on many occasions we did our homework and we resolved our issues in a fairly natural way. I have to say that there was probably a comfortable if not somewhat serendipitous division whereby those members of the subcommittee with experience at the civil Bar and those with experience at the criminal Bar were able to naturally assume responsibilities as this bill evolved. 
The very pleasant thing was that Nandor Tanczos who brought to the consideration a layperson’s perspective lacked nothing in perspicacity and nothing in his understanding of the principles we were dealing with. Some amendments to the bill can be attributed to one or two occasions—perhaps it was more often than that—when Nandor Tanczos asked a “what if” or “Why do we do this?” question. His contribution merited a special thankyou when the committee concluded particularly from the specialist adviser the Hon Dr Robert Fisher. 
So that was the committee process. We were unanimous on the various matters we dealt with and at no stage did we lose a sense of the enormity of the task. We called for submitters and we welcomed their oral submissions. We were flattered to receive submissions from the full Supreme Court along with submissions from the Chief High Court Judge and from the author of the Law Commission report Justice Baragwanath who spent time with us and urged us to adopt a less prescriptive version of the bill. We think that we may have delivered a not too prescriptive version but a codified version of the statute. 
Many areas in this bill are worth discussing at some length and I will perhaps do that during the Committee stage and in any third reading speech I give but I will mention two areas of the bill briefly. The first area concerns the evidence of complainants in cases of sexual offending. We considered a submission from the Wellington Women Lawyers Association. The association challenged us as to why evidence of reputation should any longer be part of our evidence law when it came to allegations of sexual assault or sexual violation. We were interested in this challenge because of course reputation has nothing to do with what is a transaction of the moment. 
We sought further submissions on this issue from both the Law Society which had already provided us with a very lengthy detailed and helpful submission and again the criminal Bar which in this country is effectively represented by Auckland practitioners. Mr Peter Winter of the criminal Bar responded. He travelled again to Wellington as I recall it and he conceded that the criminal Bar did not like the removal of the reputation aspect of the law but could see that we were heading that way. He spoke from instinct rather than being able to provide any analysis. We have omitted evidence of reputation from the admissible evidence and that is dealt with in clause 40 of the bill. 
The second area of the bill that I will touch upon briefly concerns the statements of co-accuseds. The report from the Law Commission would have allowed—in a manner perhaps consistent with the philosophy that hearsay evidence is now admissible but there are a lot of prescriptions to that—the statements of a co-accused in a joint trial to be used as evidence in court—that is as evidence against an accused. This would have created many difficulties. We discussed it and in the end we decided that the status quo should remain. 
The principal reasons for that decision were first that is impossible for a co-accused to challenge the way in which a statement made by another accused is taken at the police station and secondly that the practice in joint trials of the statements of co-accuseds not being paid regard to by juries seems to be working adequately. There is ample anecdotal evidence of juries being able to set aside incriminating comments against a co-accused in the course of considering their evidence in joint trials. We believed that to follow the Law Commission recommendation on that point would lengthen joint trials increase the amount of appellate work and run the considerable risk of injustice. 
This is an important bill. It is not a codification of the law of evidence but an attempt to bring into statute in a clear concise and accessible way the laws that must be followed. The statute prevails over other legislation unless it is stated otherwise.