Finlayson Christopher: Evidence Amendment Bill — First Reading 
Finlayson Christopher: Evidence Amendment Bill — First Reading 
[Volume:640;Page:9969] 
CHRISTOPHER FINLAYSON (National) 
: 
 As Mr Power indicated National will support this legislation and will certainly cooperate in having the matter dealt with expeditiously at the Justice and Electoral Committee on Thursday. Perhaps it sounds like a conspiracy on the part of the subcommittee that dealt with this matter—that subcommittee being under the chairmanship of Mr Fairbrother and comprising Mr Tanczos Dr Worth and myself—but it was certainly not the intention of the subcommittee to alter the law and abolish the three common law exceptions by some kind of side wind. 
Perhaps it is interesting to go into the legislative history of the matter just for the sake of completeness. Clause 26 of the Law Commission’s draft code could probably well have been a better formulation than the clause adopted by the select committee. That clause provided that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible unless three exceptions are made out. When the bill was being dealt with in the select committee the relevant clause was clause 23. I think that is where the drafting went wrong and it made its way into the legislation as section 27. 
As Mr Fairbrother correctly observed a number of senior and august people made submissions on this legislation—from Supreme Court judges to members of the Rules Committee to other members of the Law Society to others including legal academics—and this point was not picked up on the way through. Indeed when I went through my papers I found that on 5 September the Law Society made a submission that the common law rules surrounding the admissibility of defendants’ statements in trials involving one or more defendants would be changed if the then clause 23 was amended. The society proposed a possible amendment to the clause but it did not actually address the issue now raised by this amendment. Indeed the papers of the officials referred to clause 23. There was some debate on unrelated matters and they too recommended no amendments to the clause. 
So it does seem that the point in issue went through a number of filters yet was not picked up by members of the subcommittee the select committee the officials or the submitters. All that one can say to the House in those circumstances on behalf of the subcommittee is mea culpa. I guess that is what happens when there is a once-in-100-years comprehensive review of legislation and a subsequent codification. 
 As the Minister and Mr Fairbrother have outlined the amendment deals with a very important issue. The amendment has already been explained by the Minister. The rules of the common law relating to the admissibility of statements of co-conspirators or people involved in joint criminal enterprises must of course be preserved. 
I must say however that I agree with Mr Fairbrother when he expresses a concern about the terminology of the proposed section 12A inserted by clause 5. That section I remind members states: “Nothing in this Act affects the rules of the common law relating to admissibility of statements of co-conspirators…”. Mr Fairbrother quite correctly referred to section 6 of the Act which sets out the purpose of the legislation. One of those purposes in paragraph (f) talks about the desirability of enhancing access to the law of evidence. There were a number of occasions during the course of the select committee stage when the select committee attempted to define just what exactly the rules of common law are. I believe this is an occasion where it should not be beyond the wit of the select committee within a short space of time to define just what exactly the rules of the common law are which would enhance access to the legislation. I do not know the Minister’s view on that but we should be able to improve that clause in the select committee on Thursday and perhaps the Law Society and the officials may wish to get together and see what can be done about that. We will certainly cooperate in that. 
The other measure that perhaps needs a little thought as Mr Fairbrother pointed out is clause 6 and it could well be that Mr Tanczos will say something about that. I will leave it to him. 
As Dr Sharples said there are many situations where there are multi-defendant trials—for example for the supply of class A drugs. Often as the explanatory note of the bill says statements are intercepted by the police. They are used against others who are involved in the conspiracy or who are partners in the enterprise and it is extremely important that those statements are admissible. 
So there we have it. It is best for these matters to be remedied now rather than to imperil a number of forthcoming criminal trials. Everyone knows that the job of the High Court in these trials is difficult enough as it is. Creating further difficulties for the criminal justice system by not dealing with this legislation in an expeditious manner is the last thing that any member in this House wants to see happen and for those reasons we will support the legislation. 
But I do say that—and perhaps Mr Fairbrother was a bit too defensive—codification brings with it the inevitable hiccups. I can recall that in 1985-86 the code of civil procedure was repealed and the new High Court Rules were introduced. They created fundamental changes to the way that the civil justice system was run in the country. For example it was decided by the Rules Committee of the High Court that there would be one mode of commencing proceedings in the High Court—namely by notice of proceeding and statement of claim. So the originating application the originating petition and the originating summons procedure were all abolished as indeed was the way of commencing proceedings by means of writ of summons and statement of claim. But before the High Court Rules were introduced it was recognised that urgent amendments would be required to reintroduce the originating application for a miscellany of proceedings—for example for applications under the then Law Practitioners Act for people to be admitted as barristers and solicitors of the High Court. 
So when one is dealing with a major exercise in the codification of the law—and as I said the last time the law was thoroughly reviewed was as far back as 1908—it is not surprising that there is the occasional hiccup. For that reason I while wanting to deal with this matter urgently and comprehensively must say I cannot get too hung up about it. As the late Alan Martin would have said it really is the putting right that counts. I am sure the select committee will be desirous of putting it right at the earliest possible opportunity which is why National supports this legislation.