Evidence Bill — Second Reading 
Evidence Bill — Second Reading 
[Volume:635;Page:6558] 
Evidence Bill 
Second Reading 
Debate resumed from 14 November. 
TE URUROA FLAVELL (Maori Party—Waiariki) 
:  
Kia ora no tatou katoa. Last night I talked about the Evidence Bill bringing together decades and volumes of judicial decisions and reforms relating to the concept of evidence into one comprehensive scheme. I acknowledged the work done by the current Law Commission and its recommendations especially around its taking into account Te Ao Maori—the Maori dimension. We endorse concepts such as promoting fairness to parties and witnesses protecting rights of confidentiality and avoiding unjustifiable expense and delay. We also support the amendments to the hearsay rule; the removal of clause 33(3)(f) which refers to a person’s reputation for being untruthful; and the amendments to clause 40 to provide that no evidence can be given or question put relating to the sexual reputation of the complainant in sexual matters. The Maori Party also supports the amendment that provides for judges to recognise the rights affirmed by section 25 of the New Zealand Bill of Rights Act 1990. 
The right to remain silent is an issue that has been confronting the nation face on in the midst of the media frenzy around the death of the Kahui twins. If the talkback shows are a gauge of public opinion the shockwaves that rumbled throughout Aotearoa with the reluctance of the family to come forward would certainly indicate that as a nation there was universal condemnation of the delay. But as the defence lawyer stated the family members were entitled to remain silent whatever the nation thought. It is a basic principle of our law that no matter how controversial or how popular—or unpopular—the issue everyone has the right to remain silent. 
The Evidence Bill sets in place a massive amalgamation of the various aspects of the law which I have already talked about in the sense of the concepts of logic fairness to parties and witnesses and the rights of the public interest. I was interested in the speech delivered by Mr Fairbrother in the first reading when he reminded the House: “in the criminal law where the State is the prosecutor we are really not in a battle about truth but in a power relationship. … that imbalance of power underlies many of our rules on the law of evidence and most of those rules will still be carried forward in this new Evidence Bill.” Ngati Kahungunu lawyer Moana Jackson in his legendary report  
The Maori and the Criminal Justice System: a new perspective—he whaipainga hou 
 
gives further explanation of the power relationship in suggesting that the idea of a cultural and independent justice is always fraught and that law as with any other social practice is culturally bound. That being the case when this bill enters into the Committee stage the Maori Party will be interested to understand and to see clarification of the nature of the power relationship that Maori were able to enter into in contributing to the discussions around the evidence. 
Although the list of individual submitters included some familiar names—Annette Sykes Maui Pomare and organisations including Te Puni Kokiri and the Maori Land Court—it is disappointing to see there was no formal forum by which hapu and iwi or Maori justice organisations were met with. It is that “consultation” word again. It is plain common sense that evidence law affects every statement made by every witness in every court. So it is important not just that rules are clear simple and accessible but that they are culturally relevant. 
The Maori Party in our very parliamentary presence stands for the values of democracy as a form of Government in which the people have a voice in the exercise of power. We will be supporting the Evidence Bill at its second reading because of our respect of the voices from the people within the Law Commission the Maori advisory committee and those who have been consulted. Kia ora tatou. 
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. 
Dr RICHARD WORTH (National) 
: 
 Thank you for the opportunity to contribute very briefly to this debate. I have listened with interest tonight to a number of speeches that Te Ururoa Flavell has made as the member of Parliament for Waiariki. I have been very impressed by the careful comments that he has made on two preceding bills. But I have to say that in respect of his comments on the Evidence Bill he is well wide of the mark. Every attempt was made to provide consultation opportunities for those who wished to be heard. For the reasons that the previous speaker Russell Fairbrother spoke about only a few people afforded themselves of that opportunity. 
The second point I would like to make is that we saw in the deliberations that took place at select committee level a very appropriate use of advisers. When it comes to complex technical legislation good choices made by a committee—in this case the Justice and Electoral Committee—at an early stage can reap huge benefits. We made a wise choice to appoint the Hon Robert Fisher a former judge of the High Court. In my view he has not been fairly treated in the context of the work he has done as a judge in the jurisdiction of the High Court. He gave much of himself to improve significantly the context of this bill. Well we will see when the bill is passed how this legislation works in practice in the courts but I express confidence that it will be a great outcome. 
I make one final comment with reference to what the previous speaker said. I understood him to say that this bill is not a codification of the law of evidence. It is substantially on that path so I believe that the opportunity for judge-made law and other influences to intervene will be starkly limited by the passage of this legislation. 
I look forward to the further stages of this bill and to its speedy passage through the House so as to produce an Evidence Act of which we will be truly proud. 
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. 
RON MARK (NZ First) 
: 
 In the interests of preventing boredom and tedium I rise to take what will be a very short call. I think Mr Nandor Tanczos has pretty much revisited the bill. Suffice it to say that New Zealand First did not have a member of Parliament on the Justice and Electoral Committee so we are I guess at the mercy of the committee and its findings. 
I will note firstly that Dr Worth was on the committee—and we in New Zealand First do place some store on his abilities in these areas and matters—and secondly that virtually every paragraph in the report speaks of an amendment to the bill. That leaves me wondering what of the original bill remains. It would appear that the select committee has taken an axe to the bill and severely altered it from the bill that the Minister presented. We look forward to the debate in the Committee stage and to hearing the arguments as to why that was done. 
Hon Bill English 
: What does Winston think? 
RON MARK 
: If Winston were here he would say that he thought the speech given by Judith Collins this evening was interesting in that she espoused great concern for the elderly which we never saw when National was last in Government. Winston would say that the Government is in better hands these days than it would have been had New Zealand First bowed to the requests of the National Party and formed a coalition with the great menagerie that National was proposing to form one with. 
Winston would say that as Minister of Foreign Affairs he is doing a great job and actually enjoying it and he would say that he was very pleased with the comments made in the Grand Hall this evening by a number of Americans as to how well they thought he was doing his job and what a great asset he has been to New Zealand in his very short duration in the job of Minister of Foreign Affairs. Winston would say that Gerry Brownlee’s focus on Winston’s expenditure as Minister as Foreign Affairs is a little curious given Don McKinnon’s expenditure when he was Minister of Foreign Affairs. Winston would say a great deal more than that but I say to the Hon Bill English that I do not have the time to completely fill him in on all that. Winston would say that Nandor does a good job as an MP but that he sometimes allows his criticisms of Winston to cloud his judgment. 
I simply say that New Zealand First—and Winston would agree with me—will support this bill through its second reading. We will listen with interest to the contributions of Dr Richard Worth as to why the select committee took an axe to the Minister’s bill and changed it as much as it did. 
Bill read a second time.