Tanczos Nandor: Evidence Amendment Bill — First Reading 
Tanczos Nandor: Evidence Amendment Bill — First Reading 
[Volume:640;Page:9972] 
NANDOR TANCZOS (Green) 
: 
 Let me first say that I agree with the comments made by previous members who spoke on the Evidence Amendment Bill. I accept that this was an oversight by the Justice and Electoral Committee and it is something that needs to be rectified fairly swiftly which is why the Green Party like other parties has not denied leave and will support this bill going to the select committee. The Government has indicated some quite specific concerns that need to be addressed and we are aware that some urgency is required around the passage of this bill so that is why we are supporting a speedy process. Mr Power said the bill was a short one. I agree and perhaps in a way that is part of my concern. The concerns I will speak about echo the comments of previous members and I think the issues have been quite well covered. 
When we looked at what is now the Evidence Act 2006 in the Justice and Electoral Committee we were concerned about the original proposal of the Law Commission that if a defendant’s statement offered by the prosecution was admissible that evidence should be admissible against co-defendants. We thought that the Law Commission went a little bit further than we were comfortable with and certainly further than most of the submitters to the select committee and the advisers were comfortable with. Previous members have talked about the range of advice that we got on this matter. So we amended the bill and what we ended up with was section 27 which states in subsection (1): “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant but not against a co-defendant in the proceeding.” That I guess is where the difficulty has arisen because in some kinds of cases we would want that evidence to be admissible and that is what the common law has previously recognised. 
If we look at the amendment bill we see that it is quite short and has some fairly simple things in it but I would just like to touch on them because I think there are some significant concerns. I think those concerns can be addressed by the select committee but it is important to highlight them and make sure that the select committee addresses the issues particularly because we have a foreshortened select committee period for dealing with the bill. The first concern is in relation to new section 12A to be inserted after section 12. The section is headed: “Rules of common law relating to statements of co-conspirators or persons involved in joint criminal enterprises preserved” and continues: “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.” 
I just highlight that in contradiction to section 6 and section 12 of the Evidence Act 2006. This again is something that has been addressed by other members. The last provision in section 6 “Purpose” is: “enhancing access to the law of evidence.” and we paid a great deal of attention to this in the select committee in order to make sure that the rules of evidence were laid out as clearly and straightforwardly as possible in this Act. It would seem to me that new section 12A runs right through that purpose because it establishes a whole new area of unclearness and I think that is unfortunate in the context of what the legislation was actually trying to achieve. Section 12 of the Act states that if there is no provision in this Act or any other enactment or if an issue is not dealt with adequately: “(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 made must be made having regard to the common law.” So it is saying that where there is uncertainty or unclearness the common law should be applied in so far as it is consistent with the purposes and objectives of the Act. 
I guess the thing that concerns me about new section 12A is that it states that nothing in the Act affects the rules of the common law relating to those matters. Rather than saying that the common law should be used where it is consistent with the new Act this provision says that in this case the common law overrides the Act. That seems to me to be inconsistent with the formulation and the intention of what has previously been here. So I think that is something that the select committee should pay some attention to. 
As I say it does leave a large area of uncertainty. I am not as learned as the other members of the subcommittee who dealt with the Act and that is one of the reasons why I do not take as much responsibility for the mistake as them. Although those members may be clear about what the common law says in this instance I am not and if we are simply referring to the three exceptions that were previously stated then we should state that clearly. The thing that worries me is that if we are going to put in this fairly blanket statement about the common law and give it an overriding power it is important that we clearly state what those common law rules are. Members have said that the select committee should be able to do that and I see no reason why not but there is a foreshortened time period so I think it is something we should make sure we devote attention to and make sure that we clarify. 
The other significant new clause in the Evidence Amendment Bill is clause 6 which amends section 27(1) by adding the words: “unless by the co-defendant’s words or conduct the co-defendant has taken to have accepted the truth of the statement made by the defendant”. This is the clause I referred to earlier. So section 27 (1) would state: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant but not against a co-defendant in the proceeding”—and now the following phrase is to be added—“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.” 
At first glance that does not look too problematic but then it led me to start to think what we mean by their words or conduct being “taken to have accepted the truth of the statement …”. That started to raise some concerns—or at least some cautions—in my mind because it is such an ambiguous statement. An example was put to me where an accused gives a statement that contains some details and the counsel for the co-accused—where the co-accused is not giving evidence—asserts some of those same details in the course of cross-examination. Does the assertion of those details imply acceptance of the truth of that statement? Does it imply acceptance of the truth of part of it? I think it is unclear. Perhaps that is simply because I am not as learned as some of my colleagues but I think there is an ambiguity about what we mean by “taking someone to have accepted the truth of a statement”. That is something I would like to see clarified in terms of both its intent and the actual wording of that clause. 
I also refer to the comment that Mr Fairbrother made earlier around the question of whether we would be inadvertently opening the door to the admissibility of hearsay evidence beyond the narrow confines that the select committee quite carefully arrived at. I think that there is clearly an issue here that needs to be addressed. It needs to be done with some haste and we accept that and we accept a process for doing so. Nevertheless in my view there are some problems with the bill as currently drafted and I think it is important that the select committee puts its mind to clarifying that so that in terms of a bill intended to codify the laws of evidence that is what we actually end up with.