Evidence Amendment Bill — Second Reading In Committee Third Reading 
Evidence Amendment Bill — Second Reading In Committee Third Reading 
[Volume:640;Page:10334] 
Evidence Amendment Bill 
Second Reading 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Evidence Amendment Bill be now read a second time 
. This bill was introduced on 18 June 2007 and referred to the Justice and Electoral Committee for consideration. That committee reported the bill back to the House on Friday 22 June 2007. I start by thanking the committee for its work in consideration of the bill within what was an agreed tight time frame. 
This bill deals with an amendment to the Evidence Act 2006 which was passed last year but is not yet in force. The Evidence Act retains the common law rule— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I am sorry to interrupt the member. Would members leaving the Chamber please show some courtesy to the member addressing it. Courtesy is contagious and if we keep within the spirit of the Standing Orders it will be good for everybody. 
Hon MARK BURTON 
: The Evidence Act retains the common law rule that a defendant’s statement is admissible against him or her but is not admissible against a co-defendant in the proceeding. However the Act does not include the exceptions to that rule. This bill captures those exceptions so that they will now be included in the Act. Two of the exceptions are known as the co-conspirators rule which allows for the statements of a defendant to be admissible against a co-conspirator or others involved in a joint criminal enterprise where the statements are made in furtherance of a common design. The prerequisites to this rule applying are that there is independent evidence of both the existence of a conspiracy or a joint criminal enterprise and the defendant being a member of that conspiracy or enterprise. This rule is preserved in a new section 12A which provides that nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises. The select committee made no amendments to the substance of the preservation of this common law rule. 
There is another common law exception to the rule—that is that the defendant’s statement is admissible against him or her but is not admissible against a co-defendant in the proceeding. That is where the co-accused by his or her words or conduct accepts the truth of the statement made by the defendant. The bill as introduced incorporated this common law exception into the Act by way of an amendment to section 27. The committee has amended the bill and moved this amendment to clause 12A with the co-conspirator’s rule. The amendment provides that nothing in the Act affects the common law rules relating to the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by that co-defendant. This amendment will ensure that an amendment to section 27 will not have unintended consequences. 
This bill contains important amendments that have serious implications for criminal trials involving multiple accused and evidence obtained by interception of communications. Those cases generally involve major drug-dealing organised criminal enterprises or serious violent offending. These types of multi-defendant trials are costly lengthy follow from resource-intensive investigations and often have a high profile. It is therefore important that the common law is maintained. 
In commending this bill to the House I again thank the Justice and Electoral Committee for its diligent work and the tight time frame inside which it has delivered this bill back to the House. 
CHRISTOPHER FINLAYSON (National) 
: 
 I thank the Minister of Justice for those generous and kind comments. 
The National Party will support the second reading of this bill because it is necessary to make it clear beyond any doubt whatsoever that the common law exceptions that he referred to are retained in the law following the enactment of the Evidence Act last year. In dealing with this second reading speech I want to go through the legislative history because there is at least a question that perhaps the legislation is not necessary and I want to deal with that matter. 
The Evidence Bill was introduced I think in 2005 and referred to the Justice and Electoral Committee. A specialist subcommittee of the select committee was formed chaired by Mr Fairbrother a Labour list MP and on that specialist subcommittee were Dr Richard Worth and myself from the National Party and Nandor Tanczos from the Green Party. We were ably assisted by the officials from the Minister’s department and also by Robert Fisher QC a former judge of the High Court of New Zealand. I also think it is fair to say that a great deal of work was done on the bill as can be seen from the report of the Justice and Electoral Committee when the bill was referred back to the House. I think it is fair to say that the second reading and Committee stage were dealt with very quickly indeed. 
When the bill was introduced and when it went to the select committee the relevant clause which is now the subject of consideration in this amendment bill was clause 23. As originally introduced this clause provided that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible unless the statement is excluded under certain clauses which are not relevant for the purposes of consideration this afternoon. 
During the course of the select committee deliberations concerns were raised about the form of that particular clause as drafted and that message was picked up in the report back to the House. The committee recommended “that clause 23 be amended so that a defendant’s statement would be inadmissible against a co-defendant in joint criminal trials. A statement made by a defendant would be admissible only against that defendant.” But it is very important that I quote the following sentence: “This would maintain the current law relating to statements by co-defendants.” There is at least a very good argument that that would have picked up the common law. So the clause was amended to reflect that intent but there was certainly no intention on the part of the subcommittee to alter the existing law and those common law exceptions. 
Indeed there is an argument based on sections 10 and 12 of the Evidence Act that if this matter had ever gone to litigation then the courts would have said that the common law exceptions were still relevant even if the words were not explicitly referred to in the section. I say that because section 10 which is a very important section deals with the interpretation of the Evidence Act and it provides among other things that the Act “may be interpreted having regard to the common law but only to the extent that the common law is consistent with—(i) its provisions; and (ii) the promotion of its purpose and its principles; and (iii) the application of the rule in section 12.” Section 12 deals with evidential matters not provided for and again provides that the common law can be brought in “to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken”. In those circumstances regard can be had to the common law. 
So based on the statement in the report back to this House on the Evidence Bill and based also on sections 10 and 12 of the Evidence Act there is a very respectable argument that this legislation that we are dealing with today is not in fact necessary. The point is however that after the enactment of the Evidence Act 2006 concerns were raised that the common law exceptions had not been captured in the codification. The Minister very fairly outlined the concerns that a large number of hugely expensive complicated time-consuming trials could be aborted because someone might run the argument that the common law exceptions had not been captured and so the law had fundamentally changed. Hence the need for this amendment legislation and the select committee has dealt with it as quickly as possible in order that it be clear beyond any doubt whatsoever that the common law has been preserved. 
Now then let us look at the Evidence Amendment Bill as introduced and how it has emerged from the select committee. The Minister quite rightly says some changes have been made by the select committee. It is important first to refer to clause 5 which inserts section 12A. As originally introduced that section baldly stated: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” 
 Clause 6 deals with an amendment to section 27. It originally provided that section 27 was to be amended by adding “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”. Not only has the select committee amended the new section 12A so that we bring into the body of that section the rules of common law relating to admissibility of statements of co-conspirators or persons involved in joint criminal enterprises but also we have picked up those concluding words that clause 6 was to add to section 27(1) and made them paragraph (b) of new section 12A. That of course refers to “the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.” 
Then through clause 6 we have amended section 27 by adding subsection (4) which states: “To avoid doubt this section is subject to section 12A.” Some members may think it is rather odd when dealing with an amendment to section 27 of the Act which is in Subpart (3)—in Part 2— which deals with defendants’ statements to have a new section 12A which will be in Part 1 dealing with general provisions. But what we wanted to do was make it upfront in the general principles section that the common law exceptions have not gone west as it were by a side wind but they are still very much part of the law. 
Even if some of us think there was no doubt as to whether the common law was still retained I agree with the Minister that because this is such an important issue because of the cost and the complexity of these multi-defendant trials in the circumstances he has described it is better beyond doubt to dot the i’s and cross the t’s and make it quite clear that the common law exceptions are retained. 
Reference to the common law is not the best way of legislating particularly when there has been such a fundamental root and branch reform of the law but in the circumstances and in the time available what we have done by way of amendment to the new section 12A was considered to be the best way of dealing with this. In my third reading speech I will perhaps point out some routes for the future particularly when it comes to the first 5-yearly review of the Act. 
CHARLES CHAUVEL (Labour) 
: 
 I rise to take a brief call in the second reading debate of the Evidence Amendment Bill. I do not intend to speak for a long period of time. Much of what ought to be said relating to this technical tidying-up amendment has been said by the two previous speakers. 
As has been noted the bill will correct an accidental arguable omission from the Evidence Bill passed in November last year. Clearly there would potentially have been serious implications for a number of criminal trials involving multiple defendants if tidying-up legislation were not passed by Parliament in a timely fashion. 
As has been noted under the common law and under section 27 of the Evidence Act 2006 a defendant’s statement is admissible against the defendant but not admissible against a co-defendant in the same proceeding. There are three exceptions under the common law to the rule. These clearly ought to have been inserted into the Evidence Bill during the select committee process but that omission was not picked up. I must say that this is a rare omission on the part of a committee that otherwise works hard and thoroughly and normally addresses matters wholly and thoroughly. Those common law exceptions are where the co-defendant accepts the truth of the statement; things said and done in furtherance of a common design in a case where conspiracy is alleged; and things said and done in furtherance of a common design where the accused are alleged to have engaged in a joint criminal enterprise. The bill as has been noted will put these three exceptions into the Evidence Act 2006 putting it beyond doubt that it will reflect the common law. Obviously there will also need to be an amendment to section 5 of the Evidence Act to replace the word “Act” with “section” to reflect the fact that there is a split commencement date in the principal Act. 
I conclude by recording my appreciation for the multipartisan way in which this legislative tidying-up measure was able to be progressed and expedited and I commend the Evidence Amendment Bill to the House. 
NANDOR TANCZOS (Green) 
: 
 The Evidence Amendment Bill has the support of the Green Party notwithstanding the rather unusual procedure of the bill’s passage in terms of both the speed with which it was introduced to the House and then dealt with by the Justice and Electoral Committee—it was unfortunately hasty—and the procedure today where we will be dealing with all of its remaining stages at this sitting. I have to say that the Green Party is normally very reluctant to support procedures of this kind because it is very easy for the House to make inadvertent mistakes through the hasty making of legislation. There are important constitutional reasons why we have normal procedures—in particular to ensure there is adequate opportunity for members of the public for professionals involved for other people involved and for experts to come and make comment on the legislation we are seeking to enact. It is unfortunate that that has not been the situation here. 
Nevertheless we have accepted the Government’s argument that there is urgency around this matter—that the amendments made by the select committee to what is now the Evidence Act left some confusion around a matter and left some concerns—and that it needs to be rectified promptly in order that cases currently before the courts are not adversely affected. So the Greens are supporting this unusual procedure and we are supporting the bill. 
The first question we had to determine in coming to our position was the question of whether the bill was necessary at all and I make reference to the comments of Mr Chris Finlayson around this matter. It was something the select committee discussed and it is an important point because the question was whether the amendments made by the select committee actually did away with the common law or preserved it. That is the concern and the reason why it is important to pass the legislation is to make absolutely clear that the common law is retained. 
There is a reasonable argument to be made that the common law provisions should still remain. As I say Mr Finlayson has canvassed those arguments but I think it is worth referring to some of those specifics. Let us take a look at the Evidence Act—and excuse me while I just find my way through this— 
Simon Power 
: What’s the member got down there? 
NANDOR TANCZOS 
: It is a laptop. I am sure Mr Power has heard of them; I know some members of this House are unfamiliar with the term. The new Public Access to Legislation website is great stuff. 
Section 12 states: “Evidential matters not provided for—If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part decisions about the admission of that evidence—(a) must be made having regard to the purpose and principles set out in sections 6 7 and 8; and (b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken must be made having regard to the common law.” The question then arises whether that provision gives adequate direction to the court to include those common law considerations into the decision about whether the particular evidence will be admitted. Of course if we look at those purposes—which I will return to—we see that it does not seem that they would be inconsistent with the bill’s purposes. 
But the question does of course remain with some of the other sections. Section 7 states: “Fundamental principle that relevant evidence admissible—(1) All relevant evidence is admissible in a proceeding except evidence that is … (b) excluded under this Act or any other Act.” The concern is that that actually overrides that common law provision. I think it is fair to say that we came to the view that the bill is required not because we are certain that the amendments did away with the common law but because we are uncertain. It leaves a degree of uncertainty that is important not to leave in place because of the cases I have previously mentioned. 
The question then arises—given that the bill is necessary—as to whether this is the best way to solve the problem. Again Mr Finlayson has referred to these arguments. There is a contradiction in including in an Evidence Act an amendment that is expressly designed for the purposes of clarifying the laws of evidence collating them in one place and making them accessible to the general public. Those purposes are countered then by having a reference to the common law a reference that by its nature is unclear. So it is unfortunate that this is the way the bill has had to go and that is one of the issues that I and other members raised in the first reading. Yet given the requirements of haste that are so important with regard to this bill the argument was made by advisers that the attempt to make explicit the common law rules was problematic. 
This was partly because of the time frame but partly because there are undecided questions still to be determined in the higher courts around these issues of co-conspiracy. My understanding—and I am not a lawyer and I am not familiar with the cases— 
Christopher Finlayson 
: You should be. 
NANDOR TANCZOS 
: I thank the member; that is very kind—well I think it is very kind. 
My understanding is that the case in particular that was being referred to is around the question of what actually qualifies as a co-conspiracy. Although that is different from the question of what evidence is then allowed the point about where those rules are going to apply is clearly germane to the whole issue. So in accepting the argument that some undecided issues are still to be resolved we accept that this is the way forward. 
Just as a point on the side I was quite interested about why we talk about the statements of co-conspirators or persons involved in joint criminal enterprises rather than of those alleged to be involved in those things. It seemed to me to be contrary to that basic principle of being innocent until proved guilty. But the point was made that it is put in that way because for these rules of evidence to apply the co-conspiracy or joint criminal enterprise has to be already proved. So we are not talking about people alleged to have been involved in such enterprises; we are talking about co-conspirators or persons involved in joint criminal activities. It not the best thing that these things remain undefined because as I said one of the main purposes of the bill was to codify and to clarify the legislation and to make it accessible to the general public. Again if we go back to section 6 of the Evidence Act where it talks about the purpose we see that “enhancing access to the law of evidence” was one of the quite explicit purposes outlined there. 
So it is unfortunate that this has had to be this way. The Justice and Electoral Committee made an amendment in relation to the issue of where a defendant accepts the truth of a statement of a co-defendant. The suggestion which I think came from Mr Fairbrother of a way to restate that was a very good one and it avoided some of the problems that were raised in the first reading. I also note that there is a review process to ensure that these issues can be dealt with again on a later occasion and so the actual codification which is what we actually desire can be done more clearly at that time. 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Tena koe Mr Assistant Speaker. Ka nui te mihi ki a tatou katoa mo tenei wa. No area is probably under more negative public scrutiny at the current time than the criminal justice system. This in itself is probably a good thing. Too often the system comprising our courts our jails and our judiciary is shrouded in mystery. Incarceration and sentencing decisions are vigorously debated around kitchen tables but they are not it would seem open to nationwide discussion. 
So it was a matter of some interest when Norm Withers of Christchurch instigated a petition in 1997 after an unwarranted brutal attack on his 72-year-old mother. This petition eventually led to the 1999 law and order referendum so it was obvious that there was intense public interest in the laws of criminal justice. This interest in the law is not just about the outcomes of the law in operation; it extends also to the system’s inner workings—the ambiguities the complexities and the rules around evidence. 
So today we come to the Evidence Amendment Bill which is another example where the law itself is proven to be faulty. In essence it is about an error made at the select committee that meant the co-conspirators rule was unintentionally deleted. We hear that the three common law exceptions to the rules about ensuring that a defendant’s statement can be heard against a defendant but not a co-defendant in the same proceedings have been missed out of the Evidence Act 2006. The passage of law that this House went through last year in supporting the Evidence Act 2006 was such that we were all really partners in crime to the central problem that today’s bill addresses. It is this sort of blind faith that Parliament entered into that I believe is useful to examine a little bit further. 
The legal system should not be beyond the scrutiny of the law. The fact that the Justice and Electoral Committee intended to maintain the co-conspirators rule but did not do so should be subjected to scrutiny as well as be addressed as we are doing today. In the interests of a healthy democracy we must ensure that open access to criticism is a part of the normal way of running business. 
In the case of this urgent amendment to the Evidence Act 2006 the consequences would have been particularly important in cases where evidence is obtained whereby one defendant makes a statement that under the current law is able to be used against another defendant. My co-leader Dr Sharples talked extensively the other day about the implications of such a ruling in the case of serious drug-dealing trials which often involve organised criminal groups. He talked about his own experience with the Patua te Ngangara or Beat the Demon drug education programme and how the mistake in law unintentional or not would have counted heavily in multi-defendant trials such as class A drug trials. So it makes us think that if one error can happen such as the one we are dealing with today then what about the other miscarriages of justice that may not as yet have been identified? 
It reminds me of the old saying that justice delayed is justice denied. What about those people who may have spent years fighting for damages and who are struggling with dwindling finances with the toll of the case weighing heavily on their relationships or on their general state of health? It will be well known in this House that even lawyers have expressed a lack of faith or confidence that justice will be done through the legal system. For a particularly comprehensive understanding of this issue I refer the House to a 1999 publication by the Law Commission entitled  
Te Tikanga o te Ture: Te Matauranga o nga Wahine Maori e pa ana ki tenei 
. This report on Maori women’s access to justice—he putanga mo nga wahine ki te tika—sums up the issue of how well our justice system functions: “Maori women identified the dominance of colonial values and lack of Maori personnel in the legal system as the major barriers to justice. Looked at from another angle the lack of knowledge of Maori values and culture and the lack of Maori personnel heightened their perception of injustice”. So of course the notion that there is injustice in the system of justice is not new but it is always useful to consider when another opportunity presents itself as it does in this case around abolishing the common law rule relating to co-conspirators. 
How does the law work in practice? How well does the adversarial system serve the cause of justice? How can we ensure that the systems of decency integrity honesty and accountability apply as much to lawyers and judges as they do to expert witnesses or clients? We have been interested in the context of such questions to learn about the establishment of a legal issues centre at the University of Otago which has been set up to provide such a bird’s-eye view. The dean of the University of Otago’s faculty of law Professor Mark Henaghan described it as follows: “Everything about the system hinders accessibility. Even the cost of lodging an application stops many people from pursuing a claim even where the evidence is overwhelmingly in their favour”. So the professor has raised concerns about the monitoring and enforcement of codes of ethics such as those stipulated by the Law Society. He has also raised the concept of alternative models of resolving disputes—an area that the Maori Party is keenly interested in. 
 The pursuit of justice te whainga i te tika has always been important in the Maori world view. In Maori terms justice recognises that kaupapa and tikanga are the first law of this land. The Maori Party acknowledges that justice is best achieved not by merely changing the content of existing laws but also by reconsidering—in good faith—the processes through which laws are made and the principles that underpin them. So we believe that if manaakitanga is to be effectively acknowledged the mana of all peoples might be properly and respectfully acknowledged. 
It is essential that the ideal of a fair and just community be established both in the structural functioning of society and in the operations of the justice system. The Maori Party is pleased to support the Evidence Amendment Bill not only in terms of rectifying the initial error but also to remind the House of the importance of ensuring that there are appropriate and responsive social conditions and legal processes to properly acknowledge the fundamental importance of a functioning democracy. Kia ora tatou. 
SIMON POWER (National—Rangitikei) 
: 
 I just take this opportunity briefly—and I emphasise the word “briefly”—to thank Chris Finlayson for putting in the time and effort on behalf of National during the select committee process for the Evidence Amendment Bill. He was very helpful to us when the Minister of Justice first wrote to National as a party on 14 June seeking its cooperation in expediting this legislation through the House and National members are grateful for the expertise he brings to issues like this. 
I also echo the comments made by the Green member Nandor Tanczos. Historically National has not been comfortable with legislation moving this speedily through the House. In fact arrangements as initially suggested were further discussed to result in the passage of the legislation that we are seeing today. Proper scrutiny of legislation is important to members on this side of the House. Although we can debate at length whether the Evidence Bill as it first emerged from the select committee needs the work done that the amendment bill proposes in terms of whether the common law would cover off the exceptions and the like in respect to admissibility of co-defendants’ evidence the point has been made by both Charles Chauvel and Chris Finlayson—and Nandor Tanczos to be fair—that at the very least Parliament has an obligation to clarify the law beyond doubt. I do not believe that the issue of whether an initial error was made is of significance at this point other than to say that we now know that the legislation will contain a degree of certainty that we hope will not see this particular legislation returned to the House for some time. 
It is the intention of the House to move to the Committee stage shortly and then to the third reading of this bill—all this afternoon. I just remind members that moving legislation through that process in the way that we are doing this afternoon is not at all—except in very exceptional circumstances—a satisfactory way to see legislation moved through Parliament. Certainly those who have responsibility for areas like justice or those who have shadow Attorney-General roles or the like will agree—as I am sure the Minister of Justice himself would—that such processes are not ideal. 
I believe that in order for this legislation to be as good a law as it possibly can be and to avoid court proceedings discussing whether the common law covers off some of the issues raised by this amendment bill getting the certainty around this legislation before its implementation is a helpful thing to do. National members will be constructive during the remaining stages of this bill’s passage through both the Committee of the whole House and its third reading. On this occasion I think I can say that the House has decided to put aside traditional matters of partisanship on issues in the justice—including criminal justice—area and will try to see this legislation move as speedily as possible. 
RON MARK (NZ First) 
: 
 I too shall take a very brief call on behalf of New Zealand First to indicate that we will support this amendment to the Evidence Act. I make a couple of notes. Firstly New Zealand First does not have a member on the Justice and Electoral Committee which considered this bill. We therefore will be holding to the opinions of the members of the committee and to the research and work done by them. We thank those people for their reports. We get a little bit concerned when legislation is pushed through swiftly—there is an old saying “Less haste less waste”—and we have a habit of finding ourselves back in this House redressing legislation where errors have occurred because bills have been moved through hastily. But the select committee members seem happy that they have done the necessary work. 
I do note that the conclusion of the commentary states: “Despite making these recommendations … This amendment should not be seen as resiling from the purpose of the Act. Section 202 of the Act sets out a very clear mechanism for mandatory review of this codification. The first review is to commence on 1 December 2011 …”. That is a little confusing because it then states: “or at a later date set by the Minister of Justice.” I guess we would like a bit of clarification. Will it be on 1 December 2011 or not? Again even in passing the bill through this stage there appears to be a little bit of uncertainty as to whether it will completely do the job whether it will need to be reviewed again and whether that review will be done in 2011 as stipulated or some time thereafter. It does seem to inject a higher degree of uncertainty again into what was essentially legislation that many questioned the need for in the first place. 
 That does leave New Zealand First with the very curious question: “What’s it all about Alfie?”. I guess we will simply trust in the select committee. Our overriding concern is that for people involved in criminal activities—particularly organised crime and high-level crime—the law as it currently stands would not make it possible for co-defendants or co-conspirators to be prosecuted successfully. That in this day and age where methamphetamine is reportedly becoming an $800 million industry to the gangs and organised crime is of grave concern to us. 
It is interesting to hear some of the concerns about the justice system as a whole in the light of press statements and press releases today by various MPs about organised crime. I again put it on the record that New Zealand First has no truck with organised crime. Legislation that can be put through this House that makes it easier to prosecute and gives the police the tools they need to put out of business gangs who meddle and peddle in mind-altering drugs that are fed to the children in our communities will always have New Zealand First’s support. In fact we look forward to the day when this House supports our anti-gang legislation. 
We do not buy into some of the rhetoric we have been reading today. To those who would advocate that “Hug a Gang Day” is here we would simply say: “Been there done that and it didn’t work.” Robbie Muldoon tried it and a range of other people have tried it. We have talked until we are blue in the face and the only thing we see is that gangs are bigger and stronger than they have ever been and that they are attracting young people into their midst in numbers that are of grave concern. 
This legislation hopefully will put a stopgap in the small hole that makes it difficult for the police to prosecute people and successfully gain convictions against conspirators and co-conspirators. That has to be a good thing. We will support the bill through the second reading and through the Committee stage. But we will be listening I have to say to gentlemen like Chris Finlayson for further views and analysis to see whether it indeed is the case that a subsequent review of this second amendment proves that there needs to be a third amendment to a piece of legislation that was widely considered as being not necessary in the first place. We will see. 
Bill read a second time. 
In Committee 
Hon MARK BURTON (Minister of Justice) 
: 
 Consistent with what I understand was the general discussion at the Business Committee to facilitate the progress of this bill I seek leave for the Committee stage be taken as a single wide-ranging debate and for there be one question at its conclusion. 
The CHAIRPERSON (Hon Clem Simich) 
: Leave has been sought for that course to be followed. Is there any objection? There appears to be none. 
Clauses 1 to 9 
CHRISTOPHER FINLAYSON (National) 
: 
 I am happy to speak to Parts 1 and 2 although it is fair to say that in the second reading I probably have tortured the House sufficiently on how we actually got to where we are in the bill as reported back. But let me make a couple of comments because to the observer it might seem strange that section 27 of the Evidence Act is amended by inserting new section 12A in quite a different part of the Act. Why we are putting it in the general or preliminary provisions is to make it quite clear upfront that in this category of case nothing will affect the rules of the common law relating to either the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises or in that second category the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant. 
I have already explained in the select committee how section 12A as introduced in clause 5 will differ from the new section 12A as it will be enacted. It was simply that rather than tack a subordinate clause on to the end of the existing section 27(1) which is in the legislation we have brought it together in one section so that the law is as clear as it can be. 
Mr Tanczos made the extremely good point in the second reading that the law even as enacted in this form is not clear beyond all reasonable doubt or beyond any doubt whatsoever—one can apply one’s own test—because there is a reference to the common law and the common law by its very nature is always changing and evolving. It could well be that this area of the common law will change again in the near future because as he said a couple of cases before the superior courts of this land at the present time touch on these issues. 
I will address the points made by Mr Mark in his second reading speech when I deal with those issues in the third reading. It would be good if by the time of any review the Law Commission and Parliament try to codify what exactly are the principles of the common law that we are dealing with here. As Mr Chauvel said there are three exceptions at the moment but it would be good to bring them into the Act because section 6 which is a very important section of the Act talks about one of the purposes of the legislation being: “(f) enhancing access to the law of evidence.” 
 As a result of the changes we have made to clause 5 and to the new section 12A there have to be a couple of minor amendments to clause 6. Rather than have the clause that I have referred to tacked on to the end of section 27 we have put it in the new section 12A and then linked section 27 to the new section 12A by adding a new subsection (4) to section 27 that makes it clear and avoids doubt that this section dealing with defendants’ statements offered by the prosecution is subject to section 12A. 
Part 2 deals with consequential amendments. As can be seen from section 27 certain evidence is not admissible if it is excluded under the provisions of sections 28 29 or 30. As a result of the changes we have made it follows logically that sections 28 29 and 30 need minor amendments by inserting after the words “the defendant” the phrase “or if applicable a co-defendant”. So those consequential amendments are necessary to give some structure to sections 28 29 and 30 in the light of the amendments made to section 27 and to the new section 12A. 
I hope that clarifies the position. The National chief whip is indicating to me that I have been as clear as mud but there we are. It is a technical matter but at the end of the day it is an important matter for the reasons the Minister has outlined. That is why having the Committee stage follow on immediately from the second reading is so necessary. 
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. 
Third Reading 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Evidence Amendment Bill be now read a third time 
. This bill deals with an amendment to the Evidence Act 2006 which as we have heard rather repeatedly this afternoon as the House has facilitated the progress of this Evidence Amendment Bill was passed last year but is not yet in force. 
The Evidence Act retains the common law rule that a defendant’s statement is admissible against him or her but it is not admissible against a co-defendant in that proceeding. However the Act does not include the exceptions to the rule. This bill therefore captures those exceptions so that they are included in the Act. These exceptions as we have discussed are included in the new section 12A which is inserted by clause 5 of the bill. This section provides that nothing in this Act affects certain common law rules. 
The first of these is known as the co-conspirators rule. Section 12A preserves the rules of the common law relating to the admissibility of statements made by co-conspirators or by persons involved in joint criminal enterprises. At common law if certain prerequisites are met then the acts or words of a defendant are admissible against co-conspirators or others involved in a joint criminal enterprise where the acts or words are done in furtherance of a common design. The prerequisites are that there is independent evidence of the existence of a conspiracy or a joint criminal enterprise and that the defendant’s participation in the conspiracy or joint criminal enterprise is established. The other common law rule section 12A preserves is that relating to the admissibility of a defendant’s statement made against a co-defendant in circumstances where the defendant’s statement is accepted by that co-defendant. 
These amendments are required in order to retain the current law once the Evidence Act comes into force; they do not change the current law. Not retaining the current law would have serious implications as I indicated during the second reading. It would have serious implications for criminal trials that involved multiple accused and evidence obtained particularly by the interception of communications. As I have indicated and as I think members fully appreciate these cases generally involve the likes of major drug dealing organised criminal enterprise and/or serious violent offending. 
Clearly these types of trials with multiple defendants are costly they are lengthy they follow resource-intensive investigations and they often have a high community profile. They are not the sorts of cases that any member would want to see put at risk. Therefore members have generally cooperated to ensure the rapid progress of the legislation through this House. 
Simon Power 
: “Generally”! 
Hon MARK BURTON 
: I am sorry; members have cooperated completely. The member is absolutely correct. If these amendments are not made then those people accused of serious crimes could indeed in a worst-case scenario be discharged or the charges would have to be dropped. That is not a situation that members would want to see happen. 
I close by acknowledging again the cooperation we have had from members of the House and the diligent work of members of the Justice and Electoral Committee. I thank them for it. It is refreshing and I have to say enjoyable to have participated in a cooperative and collaborative process in order to see the House achieve a small but important piece of work that we all agree is necessary. 
CHRISTOPHER FINLAYSON (National) 
: 
 It is a somewhat surreal experience to go through a second reading stage Committee stage and third reading stage as quickly as we have done this afternoon. There seems to be little point in going back and making reference to my second reading speech when it was given only about an hour ago. So I will not do that and I will not upset the chief whip by going through yet another turgid analysis of the newsection 12A to be inserted in the Evidence Act 2006 by clause 5 of the Evidence Amendment Bill or addressing why we come to have the amendment to section 27 in clause 6 of the bill and the consequential amendments in Part 2. 
The situation could be summarised in this way. After the new Act came into force there was some doubt about whether in relation to the circumstances outlined in section 27 the common law had been preserved. As both Mr Tanczos and I explained in our second reading speeches there is an argument that it has been; however to put the matter beyond doubt legislation was considered to be the desirable option. That is why we moved very quickly to have the Evidence Amendment Bill introduced and referred to the Justice and Electoral Committee and then this afternoon we have dealt with its remaining stages. 
One point I want to close on though is the conclusion to the report of the Justice and Electoral Committee. The committee emphasised that the Evidence Act should be regarded as a codification of the law of evidence in New Zealand that the amendment should not be seen as resiling from the purpose of the Act and moreover that section 202 of the Act sets out a very clear mechanism for mandatory review. Mr Mark raised a number of very good questions. If I can summarise the honourable member he said that we have a section that deals with periodic review and that there are some arguments as to why the legislation should have been introduced in the first place so he asked whether we would have other amendments. I think that fairly summarises the points he made. 
In dealing with the second of those points first—why we have legislation dealing with the law of evidence—I say we had a major exercise throughout 2005 and 2006 because evidence law as it was was unsatisfactory. It was contained in legislation like the Evidence Act 1908 and the Evidence Amendment Act (No 2) 1980 which had introduced some major changes some of which never actually came into force because the Governor-General in Council did not sign the necessary documents. We also had an array of common law judge-made law on evidence. 
The Law Commission wanted to bring it all together and that is what has been done through the Evidence Act 2006. That is why Mr Tanczos and I for example expressed concerns about references in legislation to the common law bringing back as I said in the Committee stage somewhat uncertain references to the law because the common law is never static but is always developing. But as far as possible and consistent with the purpose of the legislation every endeavour was made to bring all relevant rules relating to the law of evidence into one statute. A primary purpose of that was as set out in section 6(f) of the Act to enhance access to the law of evidence. The law of evidence is one of those things that affects anyone who is caught up in the civil or criminal justice system. Sometimes people represent themselves—they may not have access to lawyers—so it is to the advantage of everyone that the law of evidence is clear and accessible. I hope that answers the first question. 
The next question relates to periodic review. Section 202 which was inserted by the committee is a very important section. It is considered given the importance of thend there will be a period while the Evidence Act is in its infancy when there will be a lot of cases on it—that after a certain period there needs to be systematic review of the Act. This is a mechanism that has been inserted to provide for mandatory post-legislative review of the Act. At a particular time hopefully no later than 1 December 2011 the Minister of Justice will ask the Law Commission to take a fresh look at the Act as it has developed since it came into force taking into account all relevant cases and then to decide what changes if any need to be made. 
It is the sincere hope of the select committee and of this Parliament that that mechanism will work so that there can be a principled and systematic review of the law of evidence. I certainly hope that is the case. I know that when the Law Commission was looking at the law of evidence I was one of those who suggested that rather than our running back to Parliament every time an amendment needed to be made perhaps the law of evidence could be enacted as a code and a specialist committee could make changes to it. But because of the nature of the law of evidence which deals with major substantive matters that can affect the liberty of the individual it was considered that it was a subject that was properly the preserve of Parliament and not of a specialist committee and that is why it was not enacted as a code. 
The final point I would make is that I predict this amendment is probably not a one-off experience. Given the huge nature of the exercise of reforming the law of evidence comprehensively for the first time in a century and given the changes that have been made it could well be while the legislation is in its infancy that some other questions will arise. We may have to deal with other questions because when we try to reduce everything into a code and express ourselves clearly in Englishsh covering as many situations as we can there may well be other circumstances that require clarification. I am afraid that is the name of the game. When I was speaking in the first reading I said that after the High Court Rules were introduced in 1985 the Rules Committee needed immediately to have a number of meetings to make some urgent changes to them because certain things had not been looked at. I am afraid that will possibly happen here simply because of the nature of the exercise that we have undertaken. 
We cannot cover every single contingency but I think it is fair to say in answer to Mr Mark’s questions that we have certainly tried to do so. I hope I do not sound defeatist but it could well be that there will be a need to legislate in other areas. Given the mechanism for review that we have in section 202 of the Act where a review is not to take place until 5 years hence there may be a need for this Parliament to look at other matters. But having said that I certainly hope that is not the case. We have done our best in the time available to cover the contingencies that the Minister has outlined so as to prevent either satellite litigation on whether the common law exceptions have been maintained or our running the risk that a court finds they have not been maintained thereby then imperilling a large number of highly complex and very costly cases. At least this legislation makes it clear beyond a shadow of a doubt that the common law exceptions in this particular area have been maintained. 
For that reason National supports the third reading of the legislation. As I say I hope we are not going to deal with other amendment bills in this area of the law. But who knows? We may do so. 
NANDOR TANCZOS (Green) 
: 
 Allow me to begin with an apology. I doubt that I will be able to give a full 10-minute speech in the third reading debate without repeating myself on issues that have already been canvassed in previous stages of this debate. I know that members would not like to hear repetition so I will try to confine my remarks to fresh issues. 
I think it is important that we take this debate seriously and do make as constructive a contribution as possible because it is an important issue. The rules of evidence are enormously significant for the maintenance of justice of good rules of law of fair courts and fair process of the safety of the community and of the right to a fair trial. These are important issues particularly because of the nature of this debate and the very constrained nature of the process—the hasty procedure. Although I accept the need for that we have to accept that this is an unfortunately speedy process. So in that regard I think it is incumbent on members to make as constructive and full a contribution as we are able and I will do my best to fulfil the expectations of the House—and of you Mr Assistant Speaker. 
Simon Power 
: Our expectations of the member are high. 
NANDOR TANCZOS 
: Ha ha! 
Let me begin with a comment on a broader principle. As someone who is very interested in the deficiencies of an adversarial court system and in exploring alternative processes for dealing with legal issues and particularly in exploring further ideas around the applicability of the inquisitorial system to our own—and acknowledging that elements of the inquisitorial system already apply in some legal processes in this country—I am nevertheless someone who has a high regard for the elegance if you like of the common law system. It is unique I think to the adversarial system—this idea that there is this judge-made law with flexibility that evolves over time. 
We have developed throughout the common law system a rich intellectual tradition around questions of law and I think that is a good thing. Also within New Zealand there is the question of how much uniquely New Zealand common law we have developed. I know that that is a matter that has exercised better minds than my own and some very interesting contributions to that discussion have been published in recent times. I think it is important that we have a system that allows judges to consider not just statute law but broader principles of law constitutional considerations and the development of judicial thinking. 
I know that this Parliament has debated the question of the relationship between judges and Parliament at times and different members have different views. I know that Dr Cullen has made particularly strong statements around the sovereignty of Parliament. He has stated his position quite clearly—a position shared by some members of this House and not by others. I have to say that I am someone who tends to see myself on the other side of that debate. The question has been raised of course about what the mandate is for judges to make judge-made law. Judges do not have the democratic mandate that members of Parliament enjoy. Nevertheless I think that judges enjoy a different kind of mandate which is to do with the rule of law. It is to do with the protection of rights and with broader historical constitutional issues which can quite easily be neglected in the debates of this Parliament given that we represent moments of history moments of the collective political consciousness of our nation at a particular time. So I do not think that that takes away from the important considerations that a broader historical view might give. 
I remember well the debates between the Attorney-General and the Chief Justice. Nevertheless of course the problem with the common law is that it is relatively inaccessible particularly to ordinary people. In fact the very beauty of its fluidity and ability to evolve is one of the things that makes it so difficult for people to penetrate it and to understand its full scope. Although in the select committee and in this House we like to indulge ourselves and loyally debate some of these things in my case I am able to do that only because of the support of advisers researchers and the like. 
Unlike other members of this House who are accomplished lawyers in their own right and are well-known and highly regarded in the legal world many of us here rely entirely on the enormously hard work of various support people in order to do our jobs. Of course those resources are not available to most people. That is why it is important that we have in the Evidence Act the purpose of trying to make the law as accessible as possible so that ordinary people can understand the laws of evidence understand that the laws comply with logical rules and understand how those rules work. Then they can start to understand better how judicial decisions are made because one of the problems we have in this country is that some people have a low regard for our judiciary. I do not think that that is deserved by and large but one of the difficulties is that people do not always understand the lines of reasoning that bring judges to make the decisions they make. So if we can make explicit the laws of evidence and bring them into one place and make them clear that is a very useful and important thing to do. 
The reason those issues are important in terms of this debate we are undergoing right now is that this bill appears to run contrary to that purpose and this is an issue that has been brought up previously. But I think it is important to stress that it is not the intention of Parliament to create further confusion or anything like that but rather to show that we are rectifying an important area of confusion in the law. If we have to do that in the context of the time by referring to the common law then we have to do that but we do want to see that it is tidied up at a later stage. 
Mr Finlayson is absolutely right when he says that this is unlikely to be the only time when we have to do this kind of thing. We did undergo a massive exercise with the enactment of the Evidence Act. It is a huge Act complex and technical so it is inevitable that in the course of time we will potentially see some oversights or places where there is a lack of clarity about the intentions of Parliament. Again as has been said case law will be developing around the rules as they are set out in that Act. So in that regard it is important that we have a review process incorporated into the Act. As has been said the first review is to commence on 1 December 2011 or at a later date set by the Minister of Justice. 
 I think it would be unfortunate if that review was unnecessarily delayed. The Green Party certainly would encourage that review to be timely because I think by 2011 it is very likely that we will have seen a number of the issues that will come from this. They will have come to our attention by that time and we will need to go through that review process to look at where the case law has got to and to see what amendments or rectifications might need to be made at that time. So of course it is true that this will not be the only time we do this. We need to ensure that we do have this process to follow up and to tidy up the loose strands. That is the important element of that. Nevertheless I think it is great to see the consensus and cooperation across the House on this important piece of legislation. I commend the Ministers and advisers for their good work and I commend members for their very constructive contributions to this hasty debate. 
SIMON POWER (National—Rangitikei) 
: 
 First of all I say that as Chris Finlayson indicated National supports this bill through its third reading. I also have to say that the Green Party having indicated to the House it would not take its full 10 minutes in the third reading debate that was an impressive effort by Nandor Tanczos to get as close to the 10-minute mark as possible. 
I reiterate two important points that have been made during the course of the debate. The first is that National definitely sees this amendment bill as a clarification and as adding some certainty to the way in which this particular rule could be interpreted whether it be enshrined in statute or with the continuation of a common law position. The important point that has been made is that even if the common law retained the defence Parliament has an obligation to produce certainty in law and we certainly would not want to have a situation where this was tested at length in the courts. I thank members who have done the work on this amendment bill particularly as it was during such a rushed period in the select committee. 
Secondly I want to emphasise that National was happy to play a constructive role in seeing this legislation move through all stages of the House. It is not something that we would ordinarily agree to particularly because of the nature of the scrutiny that our democracy allows those parties not on the Treasury benches to pore over legislation that is put before the House. I think on the whole that robust process works pretty well. 
I know that the Attorney-General is anxious for me to conclude my remarks so I will just say that although the way this bill is passing is extraordinary with the introduction of the Evidence Act at the start of August it is essential. National supports the third reading of this bill. 
Bill read a third time.