Parker DavidHon DAVID PARKER (Labour): I thank the Attorney-General for his comments. I agree with him that the state of the Evidence Act in New Zealand is very good in large part because of the expertise that was brought to bear by the ministry. There were very good advisers then at the Ministry of Justice. It would have been Warren Young back then would it not Mr Attorney who would have been—Hon Christopher Finlayson: Yes Warren Young.Hon DAVID PARKER: —in the Ministry of Justice and this is probably also through his efforts at the Law Commission at one stage. And an expert committee with the experience and expertise of Russell Fairbrother and Chris Finlayson as well as Robert Fisher meant that there was a high-quality piece of legislation passed in this House in 2006 in the form of the Evidence Act. It is a very very long Act the Evidence Act and very complex. And the fact that here we go 7 years later putting it through a review and that we have got this few amendments actually shows I think what a good job Parliament did in 2006 when it passed the Evidence Act. I will traverse the main points of the bill but before doing so I note that the Minister ended by talking about some of the other issues or initiatives that are being pursued by the Government including iPhone evidence taken by constables at the scene of a domestic violence incident thus enabling the evidence of the complainant to be taken once and to be taken quickly while their memory is still fresh. They do not have to arrange child care for their children while they go down to the police station to make a statement and I think it is truly in the interests of justice that we facilitate that sort of gathering of evidence and the use of that evidence at trial should charges be laid. I do have a personal concern that we need to be very careful about one of the proposals that is currently about which is to say that in some of these sexual crimes we ought not to have a trial by jury. I am yet to be convinced that that is right. Trial by jury has been an essential component of the criminal justice system for many centuries and I am not convinced we should drop it. You have got to think about what would happen 20 or 30 years hence if you had a deterioration in your democracy and perhaps a poor Government. I am not suggesting that any of the parties here currently would necessarily act like this but you have to guard against the potential for having a poor Government in the future that brings inappropriate prosecutions. Such a Government might bring an inappropriate prosecution because for example there might have been a breakdown in the independence of the role of the police and you could have politically motivated prosecutions as you see in some other jurisdictions overseas. One of the fundamental protections you have against that in society is trial by jury. At that time you really can in my opinion rely upon juries to do the just thing. So I for one would be very reluctant to give up the right for a defendant or an accused to elect trial by jury in serious cases. In respect of the main aspects of this legislation I agree that the three main improvements in the bill are improved rules around child witnesses. Already as the Attorney-General Chris Finlayson has said most child witnesses give evidence either at a distance or behind a screen. It is as he has said a tough thing to do particularly when the person against whom evidence is being given is often a family member. So it is very very hard for the child concerned and we need to protect those children from that experience being any more difficult than it has to be. Obviously there are certain circumstances when the accused through their lawyer still has to be able to ask questions of the child witness and not all of the rigours of trial can be avoided. But it can be made less tough through some of the protections such as the change that is made in this bill which rather than it being a matter of discretion on the day creates a presumption that the child witness can give evidence by one of those other methods that are slightly less stressful. That presumption can be overturned in some situations by a court but that is for the court to determine. The presumption is now made by this law. In respect of victims in sexual crimes being tested as to their prior sexual history I agree that it is appropriate that it be done pre-trial that advanced notice be given so that people can get used to the idea and also so that a question can be asked by the trial judge: Is this really necessary?" and sometimes it will not be necessary. Through this process I think it will probably occur slightly less often. Sometimes it will be necessary and is relevant and not determinative but these processes will do that in a better way too. In respect of video evidence what the Attorney-General was hinting at was that there are some horrible people in society who will actually use the videos of evidence against the person who has given the evidence. So they will put them on the web or they will share them amongst other people or they will just use them as an angle to further abuse the person who is giving evidence. We should not condone that and given that there are some people with that propensity and given that there are copying techniques that did not use to exist we have got to keep the law up to date and we have got to make sure that that does not happen. So I think it is absolutely appropriate that we introduce through this legislation controls on the access to video evidence of witnesses in sexual crimes for example. I mention one other thing that is fixed up by this bill. The rule against hearsay has an exception in respect of business records. Normally the evidence that is tendered at a trial has to be evidence of someone who is in the position to give the best first-hand evidence of what is being deposed to in that evidence. There is an exception in respect of business records because you can normally rely upon prima facie the evidence of a bank statement being accurate as to what it presents. So if there is a deposit made on 1 July for $10000 and it shows D Parker as the source of it on the coding on the bank statement you can generally rely on the bank getting that right and there is no need to call evidence to prove that there was in fact a deposit by D Parker on that date for $10000. The business record can be accepted on its face. It can obviously be cross-examined if there is a doubt as to whether there is some fraudulence around that transaction or the like but generally prima facie that can be accepted on its face as an exception to the rule against hearsay. That exception to the rule against hearsay is found in the Evidence Act but it was drafted in a way that was so broad as to encompass a witness statement given to a police officer as falling within the definition of a business record—that is the record that the police kept of the interview of the witness—and it was not intended that that be the case. In that case you would actually fairly want to have the witness who gave the statement to the police turn up to give evidence themselves and tell the court the jury or the judge what their evidence is rather than just tendering a statement from the police of their record of the interview—because the viva voce evidence of the witness is better evidence than the statement by the police officer which might be edited or it might not be a perfect recollection or there could have been some misinterpretation of what was said and it is better to get the evidence of the person themselves. So this Evidence Amendment Bill makes it clear that the business record exception to the rule against hearsay does not include a police record that contains any statement or interview by or with an eyewitness or a complainant or any other person who purports to have knowledge or information about the circumstances of the alleged offending. So that is tidied up by this provision. Can I thank the select committee for their work and thank the submitters to the select committee including the Law Society who do a lot of really good work in this area in the public interest as volunteers giving of their own time to make sure that the law we have is better than it would otherwise be. The Labour Party will be supporting this bill at its third reading as we have in earlier stages of the bill. Thank you."