Tanczos Nandor: Evidence Amendment Bill — Second Reading In Committee Third Reading 
Tanczos Nandor: Evidence Amendment Bill — Second Reading In Committee Third Reading 
[Volume:640;Page:10344] 
NANDOR TANCZOS (Green) 
: 
 I thank Mr Finlayson for that contribution. I think it was helpful for members of the public to hear some of the reasoning that went on behind some of the amendments made by the Justice and Electoral Committee. I would like to expand a little around the new section 12A in clause 5 because I think people may find it useful. 
As has been stated in the original amendment bill as introduced clause 6 read that section 27(1)—about rules against the inclusion of the evidence of co-defendants against a defendant—was amended so that that evidence was inadmissible “unless by the co-defendant’s words or conduct the co-defendant is taken to have accepted the truth of the statement made by the defendant”. In my first reading speech I referred to concerns around that. The issue was illustrated by a hypothetical example that Mr Fairbrother raised in the select committee. In fact he was the author of the example I mentioned in the first reading which was a situation where there are two co-defendants neither of whom is giving evidence. A statement made by defendant A asserts a number of things. That evidence is not admissible against defendant B and defendant B is not taking the stand. In the course of cross-examining another witness defendant B’s lawyer makes reference to some of the assertions made by defendant A. For example defendant A has said: “We were in a blue car.” so defendant B’s lawyer asks: “Is it true that there was a blue car?” and asserts some of the secondary facts contained in that evidence. 
The question that Mr Fairbrother had was whether the use of those assertions would imply an acceptance by defendant B of the truth of the statement made by defendant A. I think it was a fair question because part of the concern was that by clause 6 being framed in the way it was it was actually unclear what was meant by “is taken to have accepted the truth of the statement”. Clarifying that was important as was nevertheless retaining the common law around it. As was stated there already were quite clear common law rules about where this evidence would be admissible. 
That is why the select committee came to this formulation. Mr Fairbrother was instrumental in our achieving it. The advisers and the Parliamentary Counsel Office were also crucial in getting the right phrasing. Now instead of that rule being in a separate clause it is included in the new section 12A. Rather than that rule being stated in that way new section 12A “Rules of common law relating to statements of co-conspirators persons involved in joint criminal enterprises and certain co-defendants preserved” now states: “Nothing in this Act affects the rules of the common law relating to—(a) the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises;”—which is the issue I addressed in my second reading speech but also—“or (b) the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.” The crucial thing is that the common law position that already exists is retained rather than a new formulation being created that creates uncertainty. 
So I think that was a helpful thing. It shows that even though we had only 1 day of consideration of this bill—it was a very speedy process—that 1 day was important and significant in our addressing this problem and tidying it up to a degree where that certainty has now been preserved. 
Clauses 1 to 9 agreed to. 
Bill reported without amendment. 
Report adopted.