Tanczos Nandor: Evidence Bill — Second Reading 
Tanczos Nandor: Evidence Bill — Second Reading 
[Volume:635;Page:6562] 
NANDOR TANCZOS (Green) 
: 
 I am quite pleased to have taken part in the subcommittee process around the Evidence Bill. I think it has been a very valuable process; it has certainly been valuable for me in terms of increasing my understanding. I think also as previous speakers have mentioned that the result is a very good piece of work from the subcommittee. 
I very much thank the other members of the subcommittee for the work we did together. In particular I thank the chair Russell Fairbrother and I also thank him for his kind words earlier. He was an excellent chair and took a very collegial approach. He said that we would not hurry this work and that we would take the time we needed to work through the very complex and dense issues. So I thank him for that. I also thank my colleagues from the National Party Dr Richard Worth and Chris Finlayson both of whom made an enormous contribution to the discussions debates and working through of the issues. I thank the officials Shelly and Boris whom Russell Fairbrother mentioned Bill and Hugo from the Parliamentary Counsel Office and Cath and Sean the clerks of the committee. They all contributed enormously to what was a complex bill. 
As other speakers have done I particularly thank the Hon Robert Fisher for the extraordinary work he put in. He put in a significant amount of work. He was able to bring to bear his experience to help elucidate the difficult issues we were grappling with. That was enormously valuable in those discussions. 
There was some debate about whether the bill was too prescriptive or whether it left too much discretion in the hands of judges in terms of working out the rules of how cases will run. We came to the conclusion that it has an appropriate level of detail. It still leaves a significant amount to be worked through so it is not too prescriptive and many provisions will still be dealt with by regulation. We came to the conclusion that the overall balance in this bill between the primary legislation and the delegated rules and regulations is right. 
Before discussing some of the specific issues we debated and the conclusions we came to I will touch on some of the overall purposes and principles of the bill. We have not significantly changed these but I think they are worth reiterating for members of the House and for members of the public who are listening. Firstly: “The purpose of this Act is to help secure the just determination of proceedings by—(a) providing for facts to be established by the application of logical rules; and”—and this is an added subclause—“(ab) by providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990;”. I think that was an important addition to reaffirm the centrality of the New Zealand Bill of Rights Act when it comes to the proceedings of courts. 
Other purposes include: “(b) promoting fairness to parties and witnesses; and (c) promoting rights of confidentiality and other important public interests; and (d) avoiding unjustifiable expense and delay; and”—this is a new subclause—“(e) enhancing access to the law of evidence.” That is an important consideration because one of the difficulties in the past has been that the laws of evidence have been scattered in case law as well as in legislation. The attempt here is to bring it all together. Although there still are rules and regulations to be worked out this bill basically provides a central place where the law of evidence can be found. I think for the public that is enormously helpful. 
Clause 7 sets out the principle that relevant evidence is admissible. That is as one would expect. Clause 7(2) states: “Evidence that is not relevant is not admissible in a proceeding.” and clause 7(3) states: “Evidence is relevant … if it has a tendency to prove or disprove anything that is of consequence to the determination …”. Subclause 1 of clause 8 “General exclusion” states that judges: “must exclude evidence if its probative value is outweighed by the risk that the evidence will—(a) have an unfairly prejudicial effect on the … proceeding; or (b) needlessly prolong the proceeding.” We have added clause 8(2): “In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding the Judge must take into account the right of the defendant to offer an effective defence.” I think that that is a useful addition. 
Evidence that is not otherwise admissible can be admitted with the written or oral agreement of all parties. Also when it comes to hearsay evidence it is basically admissible if the maker of the statement is unavailable as a witness or the judge considers that undue expense or delay would be caused if the person was required to be a witness. So that sets out the general parameters of what the bill is trying to produce. 
Then we move to the specific effects. One of the things that was of great interest to me coming at this as a layperson with some interest in the law was the issue of improperly obtained evidence and evidence obtained by oppression and the like. Clause 24 refers to the exclusion of unreliable statements. The committee struck out clause 24(2)(a) and (b). Subclause 2 stated: “The Judge must exclude the statement unless satisfied on the balance of probabilities—” 
Dr Richard Worth 
: Is this a second reading speech? 
NANDOR TANCZOS 
: Yes I am talking about the committee’s report back and the amendments we made. I thought that was the role of the second reading speech. The subclause continues: “(a) that the circumstances in which the statement was made were not likely to have adversely affected its reliability; or (b) that the statement is true.” The point of removing “that the statement is true” is that the real issue should be whether the statement was made in circumstances that were not likely to have affected its reliability. The issue of whether it is true will be determined in the decision. So it is quite proper that that be excluded. We have replaced that subclause with: “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.” 
We have to look at that clause in conjunction with clause 118 which relates to judicial direction. One of the things that concerned me greatly was the issue of statements made by witnesses who were cellmates of an accused. We can look at cases in this country whereby that kind of evidence has been the cause of very significant concern. Under clause 118 a judge must consider whether to give a warning whenever certain evidence is given including “evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison a police station or another place of detention:” That was something that the subcommittee added because of the very significant concern around those cellmate statements. 
We had a very lengthy discussion around the issue of improperly obtained evidence and around the codification of the  
R v Shaheed 
 decision and whether this was appropriate. We had a range of views on that matter. The amendment that we did end up recommending was in clause 26(3)(c). When looking at improperly obtained evidence the judge must find on the balance of probabilities whether the evidence was improperly obtained then if the evidence has been improperly obtained the judge must determine by means of a balancing process whether the exclusion of the evidence is proportionate to the impropriety. The matters that the court may have regard to are the nature and quality of the improperly obtained evidence. We removed from clause 26(3)(c) the words “in particular whether it is central to the case of the prosecution:” because it seemed extraordinarily inappropriate that that would be a consideration as to whether that evidence was included. 
So that is a very brief look at some of the issues that we discussed. I look forward to further readings of this bill in order to discuss some of the other matters that were so central to our consideration.