Barker Rick: Evidence Bill — Second Reading 
Barker Rick: Evidence Bill — Second Reading 
[Volume:635;Page:6483] 
Hon RICK BARKER (Minister for Courts)  
on behalf of the Minister of Justice 
: 
I move  
That the Evidence Bill be now read a second time 
. This bill was introduced in May 2005 and referred to the Justice and Electoral Committee for consideration. I thank the select committee for its work in considering this bill which is over 200 clauses long and covers many technical areas of evidence law. In particular I thank the subcommittee of Russell Fairbrother as chairperson Chris Finlayson Richard Worth and Nandor Tanczos who have been considering the bill with their specialist adviser the Hon Robert Fisher QC. 
The committee has recommended a number of amendments to the bill to enhance its operation. The bill’s proposals are generally based on the 1999 report of the Law Commission which spent 10 years reviewing the law of evidence. The purpose of the review was to make the law of evidence as clear simple and accessible as is practicable and to facilitate the fair just and speedy judicial resolution of disputes. I will now comment on some of the amendments recommended by the Justice and Electoral Committee. The recommended changes cover issues relating to both the trial process and the rules governing the admissibility of evidence. 
 Clause 6 sets out the purpose of the legislation: to help secure the just determination of proceedings and specify how the just determination of proceedings is to be attained. The Justice and Electoral Committee has recommended the inclusion of two additional matters in clause 6. The first of these matters is to specify that the purpose of the bill is to enhance access to the laws of evidence. The bill brings together the current mosaic of statute and case law into one comprehensive scheme. The second additional matter is a reference to the importance of the New Zealand Bill of Rights Act 1990. I consider that these additional matters will enhance the bill. The reference to the New Zealand Bill of Rights Act requires legal practitioners to have regard to the rights in that Act. The committee recommended that some provisions in the High Court Rules be included in the bill. It was considered that these matters were more appropriately dealt with in legislation. Consolidating the laws of evidence so they are in one location is consistent with the objectives of the bill. 
The committee recommended that clause 8 be amended. The amendment expressly requires a judge to take into account the right of a defendant to offer an effective defence when considering whether the probative value of evidence is outweighed by the risk that the evidence would have an unfairly prejudicial effect on the accused. The committee considered this amendment would give more emphasis to the rights in section 25 of the New Zealand Bill of Rights Act 1990. 
The committee recommended changes to clause 31 which included an amendment to clause 31(2) to limit the scope of rebuttal evidence for which previous statements are admissible. The committee considered the exception in the bill as introduced to be unworkable and too broad. The committee also recommended that clause 31(3)(b) be amended so that a previous statement of a witness is admissible only if that witness cannot recall the information it contained. The amendment to clause 31(2) was supported by many of the submissions provided by the law practitioners and the effect of the change is supported as it provides greater clarity. The effect of the amendment to clause 31(3) is to make it clear that the rules governing the ability of a witness to refresh his or her memory is dealt with in relation to the use of documents whilst giving evidence which is covered elsewhere in the bill. These amendments are agreed to. 
The committee recommended that clause 40 be amended to provide that no evidence can be given and no questions can be put relating to the sexual reputation of a complainant in sexual matters. The committee considered that any reference to a person’s sexual reputation was irrelevant and should not be admitted. The drafting is also amended to be more consistent with the drafting of the Law Commission in respect of evidence of sexual experience with a person other than the defendant. This approach was supported in the submissions. 
The definitions of a “legal adviser” and “professional legal services” are also amended. The term legal adviser has been simplified now and includes reference to a lawyer as defined under the Lawyers and Conveyancers Act 2006. The committee recommended an amendment to allow clients to claim privilege in respect of legal advice or advice concerning intellectual property from professionals in Australia. There is also an amendment to have an Order in Council process to recognise other countries whose lawyers and patent attorneys can be recognised for the purposes of privilege. These amendments have come about as a consequence of the public submission process. There were concerns expressed that privilege should be extended to cover overseas legal advisers to ensure that legal advice provided to overseas clients continues to be protected against discovery. This was particularly the case for patent attorneys whose everyday practice had a significant international component. 
The committee sought to amend clause 72 to provide further guidance as to when a person may give evidence about jury deliberations. The committee considered that evidence about jury deliberations should be allowed if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given. Evidence regarding a jury’s deliberation has in general been inadmissible. The committee’s approach was to strike a balance between maintaining the sanctity of jury deliberations and ensuring that jury deliberations remain robust and do not lead to miscarriages of justice in extreme situations. However the committee was of the view—which is a view that I share—that such evidence should be admissible in exceptional cases where there are compelling reasons to allow that evidence to be given. 
The committee was also unanimous in recommending that the bill include a provision that would require a regular review of the workings of the Act to see whether it is working effectively or whether certain provisions require amendment. It was considered that such a review should take place every 5 years and that the body charged with reviewing the Act should be the Law Commission. I agree with this recommendation. 
The bill draws together common law and statutory provisions relating to evidence in one comprehensive scheme. The bill will replace most of the existing evidence law on the admissibility and the use of evidence in court proceedings. Evidence law is largely judge made comprising decisions that are made in response to the circumstances of particular cases. The statutory provisions dealing with evidence are contained in a number of statutes and they have been reformed on a piecemeal basis responding to issues as they arise. Resulting complexity and inconsistency in law of evidence results in undue legal argument expense and delay in proceedings to accommodate arguments over issues of admissibility. The Evidence Bill brings the current mosaic of statute and case law into one comprehensive scheme. I commend the bill to the House.