O'Rourke Denis: Evidence Amendment Bill — First ReadingText is incorporated into the Bound VolumeO'Rourke Denis: Evidence Amendment Bill — First Reading[Sitting date: 02 July 2015. Volume:706;Page:5092. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First):This bill will enact all but one of the recommendations of the Law Commission’s 2013 Evidence Act review. I would like to begin by thanking the commission for its work and congratulating the Government on implementing those recommendations.I want to briefly review some of the changes. They are all fairly technical and minor in nature but still important. One of them is that the bill alters the law relating to hearsay in criminal proceedings. As we know in common law hearsay evidence is generally not admissible but the principal Act made hearsay evidence admissible in some cases. It preserved the common law rules relating to statements of co-conspirators and persons involved in joint criminal enterprises. In that context a hearsay statement made in a business record is admissible because they are regarded of course as being reliable but only if the person who supplied the information is unavailable or cannot reasonably be expected to recollect the matters in question or if the judge considers that there would be too much expense or delay in bringing such a person forward to give evidence themselves. In this bill clause 7 amends that Act by redefining the term “business record”—and it really did need some definition—and also excludes police records of statements or interviews with the victim or an eyewitness. In clause 9 the bill adds new section 22A which says that “a hearsay statement is admissible against a defendant if—(a) there is reasonable evidence of a conspiracy or joint enterprise; and (b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and (c) the [hearsay] statement was made in furtherance of the conspiracy or joint enterprise.” Those changes are all needed and are appropriate.The bill also alters the law relating to improperly obtained evidence in criminal proceedings. As we know there is a longstanding principle that such evidence would be inadmissible but sections 30(1) and 30(2) of the principal Act provide that if evidence may have been improperly obtained the judge must consider it on the balance of probabilities and decide “whether or not the exclusion of the evidence is proportionate to the impropriety …”. This is done by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice. Clause 11 simply removes the words “but also” and substitutes the word “and” so that it makes it clear that both the impropriety and in addition the need for an effective and credible system of justice are considered together. It is just a matter of clarity but it is an important matter of clarity.There are other amendments in the bill relating to admissibility of previous statements and documents used to refresh memory. Section 35(1) of the principal Act says that a previous statement of a witness is not admissible unless it is necessary to respond to a challenge to the witness’s veracity or accuracy and the statement provides the court with information that the witness is unable to recall. In this bill clause 12 amends these exceptions to the necessity of responding to a challenge to the witness’s testimony based on a previous inconsistent statement or a claim of invention by the witness or if the statement simply forms part of an integral part of an event before the court and the example is given of a 111 call. The other possibility is that the statement simply consists only of a complaint made. Those are all sensible changes to clarify the operation of those rules.The veracity rules are amended by clauses 13 and 14 of the bill. Section 37 of the principal Act provides that a party may not offer evidence about a person’s veracity unless the evidence is substantially helpful. In deciding that the judge has to consider the fact that the person might have been convicted of an offence—showing “a propensity for dishonesty” are the words used. The bill removes the word “dishonesty” in favour of “veracity” which simply means truthfulness specifically and not dishonesty generally. So that is a small but important improvement.Concerning the previous sexual experience of a complainant in sexual cases section 44(1) of the principal Act provides that no evidence can be given relating to the sexual experience of the complainant with any person other than the defendant except with the permission of the judge. In the bill clause 16 would add that in addition no such evidence can be used unless new requirements are met for a written notice to be given stating the name of the person to give the evidence and the subject matter of it so that everyone will be properly informed beforehand. But the judge may dispense with that notice if any party is substantially prejudiced or if the notice is not reasonably practical to be served and it is in the interest of justice to do so. Those changes appropriately clarify the parameters of the judge’s discretion which were not there previously in the legislation.Another change relates to privilege for plea discussions. In section 57 of the principal Act it is provided that privilege for negotiations in civil proceedings are acceptable but in this bill clause 22 new subsection (2A) extends that privilege to criminal proceedings. But under clause 22 new subsection (2B) the court may order disclosure where it is necessary for the subsequent prosecution for perjury or to clarify the terms of any agreement reached during those negotiations or if it would be contrary to justice not to do so. These are more quite sensible—minor but quite sensible—changes.Evidential rules on video-recorded evidence are amended by clause 30 of the bill so that a video record must first be offered for viewing by all parties or their lawyers. However a party is not entitled to be given a copy of a video of any child complainant or of any witness in a sexual case or a violence case. However a judge may still order that such videos be given to a lawyer representing the party before it is offered in evidence if it is in the interests of justice and considering the nature of the evidence.Finally clause 32 deals with alternative ways of giving evidence by a child and that has of course been a matter for some concern for quite a while. I remember that in Christchurch the Ellis case raised a whole range of very difficult issues in relation to those considerations. So this clause says that a child witness is entitled to give evidence in criminal cases by any appropriate means so long as the judge the jury the defendant and the lawyers concerned can see and hear the witness giving that evidence. This bill says that a child witness who has indicated that they are willing to give evidence in the ordinary way may be permitted to do so if the judge makes the decision and in doing so the judge must be satisfied that the witness fully appreciates the likely effect on him or her of doing that and for that purpose can call for a report on the likely effects on the witness. I think that is quite a valuable provision. It clarifies the circumstances under which a child witness can give evidence and takes appropriate action to protect the child. So I am glad to see that there.Overall all of these new amendments are deserving of support to the select committee and for that reason New Zealand First will vote for the bill to do so.