Evidence Bill — Third Reading 
Evidence Bill — Third Reading 
[Volume:635;Page:6802] 
Evidence Bill 
Third Reading 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Evidence Bill be now read a third time 
. The Evidence Bill was introduced on 3 May 2005 by my colleague and predecessor in the justice portfolio the Hon Phil Goff. As a former Minister of Defence I am well familiar with the time it can take from the beginning of a project to its final implementation. But even the construction of large ships the refitting of planes and the introduction of light armoured vehicles are a mere blinking of the eye in comparison with the time of this project since its origins back in 1989 when the Law Commission was asked by the then Minister of Justice to examine the statutory and common law governing evidence and proceedings and to make recommendations for its reform. The Law Commission published its report on evidence and an evidence code a decade later in 1999 amalgamating the various aspects of the law of evidence. 
The proposals in the bill are generally based on recommendations of the Law Commission and the provisions of the evidence code. The purpose of the bill is to help secure the just determination of proceedings. It achieves this by providing for facts to be established by the application of logical rules providing for rules of evidence that recognise the importance of the rights in the New Zealand Bill of Rights Act 1990 promoting fairness to parties and witnesses protecting rights of confidentiality and other public interests avoiding unjustifiable expense and delay and enhancing access to the law of evidence. 
While the development of the bill through to fruition has taken some time the outcome is in my view a very positive one. We now have a comprehensive piece of legislation that brings together many existing statutory and common law rules and principles relating to evidence giving this area of law clarity and accessibility of a type that it has not had for many many years. 
The bill also simplifies overly technical rules removes historical anomalies—and there are many of those that have accumulated over half a century—and brings the law up to date with current thinking and indeed current technology. 
In getting to this point we have been greatly assisted by the work of the Law Commission which spent a decade as I indicated before reviewing aspects of the evidence law publishing discussion papers and consulting widely with the justice sector including a wide variety of community groups academics officials and the legal profession and judiciary. 
 I also thank the Justice and Electoral Committee and in particular the subcommittee which was chaired by Russell Fairbrother for their excellent work. The bill as reported back from the committee contained a number of important amendments that all enhanced the operation and the effectiveness of this legislation. 
I also thank the interest groups—there are many of them—and individuals who made submissions on the bill. Because of these submissions changes were made to the bill that makes it better legislation. 
Finally and in particular I thank—as not all Ministers can do at this point in the development of legislation—members of the House almost universally for the constructive manner in which they have worked to advance this important legislative reform. 
The House should be proud of this bill. It tackles the complex law of evidence and includes reforms to the current law that are both fundamental and in my view long overdue. I am pleased to commend the Evidence Bill to the House. 
CHRISTOPHER FINLAYSON (National) 
: 
 I join with the Minister the Hon Mark Burton in saying that the reform is timely and National certainly supports the third reading of the Evidence Bill. I can speak on behalf of Dr Worth in saying that he and I have really enjoyed our participation in the debate. 
This is the first comprehensive reform of the law of evidence for almost a century and it is well overdue. The Minister has paid tribute to a number of people and I consider it right and appropriate that I should mention certain people as well because the contribution of people in this huge project needs to be acknowledged. I too acknowledge the work of the Law Commission. I particularly mention Judge Margaret Lee a District Court judge who for a number of years was a law commissioner. She essentially oversaw the evidence project for many years. I certainly recall that from 1996 to 1997 I was one of those whom she approached to give advice to the Law Commission on a number of issues. The question for me was how to keep the code up to date after it had been implemented. I recall that in those days I was very much in favour of the equivalent of the Rules Committee looking after the matter because I did not think politicians should be looking too closely at the law of evidence. I must say that after 12 months in this place my views have changed. I think that these areas are too important to be left to lay people and that politicians do need to be involved in the reform of the law of evidence. 
I particularly pay tribute to the Minister’s officials especially Chelly Walton and Boris van Beusekom for their outstanding work over a number of years after the ministry took responsibility for the drafting of the bill and especially during the time that the bill was before the Justice and Electoral Committee. I acknowledge the numbers of people who made submissions on the bill. There were not a huge number of submissions but their quality was very good indeed. I particularly refer to the New Zealand Law Society. Sometimes in this place we think lawyers are interested only in money—well they are really I suppose—but the reality of the matter is that the society’s legislation committee plays a major public service role as a law reformer in terms of contributing to law reform. The famous American jurist Learned Hand once told law students at Yale that it is the Bar that makes the statutes. But more than that we all depend on lawyers to help shape the law both through statutes and through judicial decisions and it is fair to say that the New Zealand Law Society has made a huge contribution to this bill. 
I pay tribute to Hugo Hoffmann and Bill Moore of the Parliamentary Counsel Office. They assumed responsibility for redrafting clauses with good humour and diligence. I can recall on at least two occasions during the select committee consideration when light bulbs went off in the heads of a few of the members of the select committee—for example on clause 26. I think I was the one who said it would be a good idea if we incorporated the Judges’ Rules into the statute. Hugo and Bill gave wry smiles and went away and drafted a number of options for the committee. Then we decided it would be a very bad idea after all. A similar thing happened in respect of the work on clause 194A and post-legislative review. 
The select committee staff were extremely helpful especially Sean Rainey and CathAnyan. The special adviser Robert Fisher QC made a huge contribution to select committee discussions. I want to acknowledge the work of Russell Fairbrother who as the Minister said chaired the subcommittee; of Dr Worth; and of Nandor Tanczos. It is fair to say that we enjoyed the work and we are pleased with the work product. 
As I said this is the first comprehensive reform in 100 years. The bill is not at all like the Evidence Amendment Act (No 2) of 1980. That Act dealt only with three or four key topics. This bill is a fresh start in the law of evidence in almost every respect. Some said that there was no need for a comprehensive code of the law of evidence. I happen to think that those people were totally wrong. Some said judges and lawyers know the law. Well with respect they do not. Over the years lawyers in particular have become very sloppy when dealing with evidential matters and one of the purposes of the Act is to raise standards. 
As the Minister said the purpose is to help secure the just determination of proceedings by achieving the purposes set out in clause 6 of the bill. I particularly want to refer to paragraph (e) that we inserted in the bill. That clause has the purpose of enhancing access to the law of evidence. Until now the law of evidence has been scattered through texts and cases that are not readily available. As a result of the enactment of this legislation for the first time we will see the law of evidence readily accessible so there will be no excuses for people not knowing the basic rules. 
I particularly want to refer to the interpretation sections of the bill—clauses 10 and 12—because they herald the major change in the law of evidence. As clause 10(1)(c) states this Act is to be “interpreted having regard to the common law but only to the extent that the common law is consistent with” the provisions of the Act the promotion of its purpose and the application of the rule in clause 12 which deals with evidential matters not provided for. 
 When I sat down earlier today to think about the particular matters that I could highlight in the third reading I found myself highlighting quite a number of areas so what follows is a very brief summary of only some of the key provisions that will be contained in the new legislation. The rules relating to hearsay are brand new and I particularly refer to clause 18 which proceeds on the basis that hearsay is generally admissible in the circumstances set out in that clause. In Part 2 Subpart 2 has some major changes that deal with expert evidence. I particularly refer the House to clause 22A and the obligations that are incumbent on experts and the way in which they conduct themselves in civil proceedings. This is one area that the Law Commission may want to have a good look at in 5 years’ time if there continues to be problems with experts. 
Subpart 3 deals with a number of major topics including improperly and unfairly obtained evidence. I particularly refer to clause 26(6) which deals with the Judges’ Rules because before this legislation comes into force the Chief Justice has promised to set out some guidelines on that subject. Subpart 8 raises some major questions on the law of privilege and confidentiality. There are a number of key issues that lawyers will have to address there such as the privilege for communications with legal advisers in clause 50 the privilege against self-incrimination in clause 56 and the fact that it is not available for corporates and the replacement of the privilege for Anton Piller orders in clause 59. These are a number of areas that lawyers will have to upskill themselves on and that after 2011 the Law Commission may wish to review. 
Part 3 deals with the trial process. That too contains a number of areas that the Law Commission may want to come back and look at in a couple of years’ time. I particularly refer to clause 79 and I say one last time in relation to clause 88 that it is intended by this clause to restate the current law; the challenge has been on the part of the Law Society the officials and the parliamentarians to find the right form of words. 
In the course of this speech I have said that the Law Commission may want to look at this or that in 2011 and that is because of the all-important clause 194A which introduces a form of post-legislative review. After 5 years’ operation this legislation will go to the Law Commission for a very comprehensive review as to how it is working and I think that that clause provides a very good model as to the way we should proceed with legislation in the future. 
As the Minister said the evidence reform project has been a task that has taken many years indeed. It has taken probably far too long but not as long as the limitation project which the Law Commission has been working on for almost 20 years. But the question of the reform of limitation law is an issue for perhaps 2007; that is in the future. In 2006 we can at least be well satisfied that the Evidence Bill is soon to become law. 
My final point concerns clause 2. I hope that the legislation comes into force very soon but not too soon because regulations have to be drafted Judges’ Rules need to be reworked and lawyers and judges need to be upskilled. But once all this has been done may the new era begin. So National supports the bill thanks all those who have been involved and very much looks forward to the future. 
RUSSELL FAIRBROTHER (Labour) 
: 
 I endorse the comments made by my friend Mr Finlayson in his third reading speech. He canvassed much of the material that I wished to touch upon. I have thanked already in my second reading speech the officials the advisers the specialist adviser and the other members of the Justice and Electoral Committee for their work and I merely restate those thanks because they cannot be repeated often enough. 
In my third reading speech I will address one of the challenges put before us by some very highly qualified judges who addressed the committee. They advised that in their opinion any attempt to codify the law of evidence—and particularly this attempt—would be too prescriptive. They were of the opinion that the courts have been very good at sorting out the necessary rules and that there was a danger in prescriptiveness. That challenge was met by a submitter—and unfortunately neither the officials nor I have the name of this submitter but I suspect that it may have been Sir Ivor Richardson. I will read from parts of the submission from that person who is anonymous in the documents available to me. 
This person wrote: “The common law has been and is a hugely important feature of English and New Zealand law. But first it can be fuzzy at the boundaries. And second there is not a single source to which you can go for enlightenment. Textbooks do their best to summarise explain and critique. But you have to go to the decisions of the Judges—which may involve studying quite a large number of judgments in various jurisdictions—and see how the law has evolved in NZ and elsewhere. As well past decisions do not as a matter of course contain checklists let alone a common checklist of relevant factors to be taken into account in reaching a judgment in your particular case.” 
That writer then went on to note that this presented a huge difficulty for trial lawyers and judges some of whom when appointed do not have extensive trial experience and that the work of the appellate courts as a result was demanding and perhaps more onerous than it should have been. 
This submitter concluded as we all concluded: “The Law of Evidence is a crucial element in the administration of justice in our courts—what material can come before the court and how it should be assessed.” In his opinion busy lawyers and judges needed clarity and consistency as base values in the law of evidence. 
That was the challenge we met as a subcommittee and that challenge was clearly met by the Law Commission in its draft report. The recommendations in that draft have been carried through substantially in the Evidence Bill which will hopefully become part of the law after today’s sitting of this House. 
The difficulty demonstrated by this was also raised with us by a group of authoritative lawyers who in a group submission opined about the difficulty of the hearsay rule and the requirement for notice. Their opinion was that the requirement for notice would effectively be a form of defence pleading. That of course is a danger we must be careful about because the element of defence work is always to be in a reactive position and not to enter into a trial in a way that is too prescribed. The element of surprise—or withholding the hand—is an important aspect of defence work. 
The notice required for the intention to lead hearsay evidence which is found in clause 19 is prescriptive at the outset. But there are certain tests that can be passed so ultimately hearsay evidence can be led on oral application to the judge during the trial. The formal steps are there if appropriate; if not appropriate then less-formal steps can be applied. 
In moving around some of my colleagues I have picked up a great fear that allowing hearsay evidence in trials will mean a completely new face to our criminal courts and in fact our trial courts. I have listened carefully to what my friend Mr Finlayson has said. His experience in the civil courts is probably not too dissimilar to my experience in the criminal courts and I think we both agree that the fear of hearsay evidence is misplaced. If we look at the tests before it is admissible—those of reliability and necessity; the reliability of the hearsay evidence and the reasons why it is intended to be led—then we find that fear is dissipated. One need only look at those exceptions that already exist to the hearsay rule such as resgestae evidence—hearsay evidence that is allowed because the test of reliability is inherently passed in the making of a resgestae statement. It is not foreign to our criminal law to allow hearsay evidence. It is unusual but it is not foreign and the resgestae test is already surrounded by the prerequisites of reliability and necessity. With modern-day communication with people speaking from various sources—and the speed at which many events happen in modern society—going to the best evidence is really a prerequisite which will be understood by lawyers and lay people alike. 
One of the beauties of the Evidence Bill when it becomes law is that the busy lawyer in the District Court particularly the duty solicitor—a position reasonably recently evolved—and the overworked legal aid lawyers will have in one lengthy but hopefully clear statute the rules of evidence that they can expect to be applied and can expect the judge to recognise in the pressure of those very busy courts. 
Before I conclude this speech I will just touch on the right to silence which in clauses 28 and 29 we have effectively retained. It is my view that this is an aspect of our criminal law that needs to be reconsidered. Once the Law Commission with its 5-yearly reviews—as dealt with in clause 194A—has examined the workings of the new concept of allowing hearsay evidence guarded only by the tests of reliability and necessity then perhaps we can also re-examine in 2006 or 2011 whether the right to silence impedes or helps the pursuit of justice given that the people who make up the vast bulk of New Zealand society are literate and well educated and given New Zealand Bill of Rights Act enforcement and the necessity for control of our police force and enforcement authorities. 
Finally a matter that has not been dealt with is Subpart 5 in Part 2 dealing with the veracity and propensity clauses. We have tried to restate the law of propensity more clearly—as perhaps it was several years ago—and have set out some clear prerequisites for allowing propensity evidence. We made a careful change which we trust was not pedantic in changing the word “truthfulness” to “veracity” so when calling evidence as to the veracity of a witness we are not impinging on the ultimate test for the court: the truthfulness of the evidence. The rationale behind that of course is that an honest witness can be a mistaken witness and a mistaken witness can be a convincing witness. The real test of the reliability of a witness is his or her veracity rather than the truthfulness of the content of what the witness is saying. We have dealt with the question of expert evidence already. 
In conclusion the changes made in the Committee of the whole House to the definition of “document” and to the cross-examination duties are very worthwhile changes. I believe this bill will enter into our legal lexicon as a very workable manual for those appearing in the busy courts. I commend the bill to the House. 
NANDOR TANCZOS (Green) 
: 
 I rise to give a fairly short speech in the third reading of the Evidence Bill and to indicate that the Green Party continues to support this bill as we have all the way through. I will give a short speech because I think that some of the specific details of the bill have been very well canvassed by previous speakers—by the excellent speeches of Russell Fairbrother Chris Finlayson and of course the Minister—so I will not attempt to re-cover ground that has already been covered. 
This bill is an example of Parliament at its best in some ways. Of course Parliament has an important role in terms of testing ideas having rigorous debate challenging the Government and holding the executive to account. But it also has an important role simply in passing good legislation. 
That is what we have in this case. We have seen various parties coming together to work cooperatively and in a thorough manner through the details of this important legislation in order to ensure that we are passing good legislation and that is the role of good parliamentarians. 
I think it is a tribute to the Law Commission and the lengthy work it did on this matter that the legislation has passed through the select committee process with some changes but relatively unscathed. A concern in this House in past times has been the way in which a lot of important work that the Law Commission has done has ended up being shelved. It has produced important law reform work that has not proceeded because there has been no political heat around it so perhaps this legislation is a tribute to the Law Commission—although one could also argue that there is a fairly sparse Government agenda at present which is allowing some of these matters to proceed. Nevertheless that does not diminish the fact that this is an important reform in order to bring the law of evidence up to date to clarify the law to codify parts of the common law and also importantly to allow greater access to the law of evidence. 
 Speakers have mentioned access to the law but that includes access for law students lawyers paralegals—and lay persons as well. It is important we remember that the law is not for parliamentarians lawyers and judges; it is actually for ordinary people. So the importance of having law that is accessible to ordinary people cannot be overstated and that is why we made the provision of better access one of the purposes of the bill. That is not to say that it is simple access that access is easy or that the law is an easy subject to understand; it is complex stuff. Nevertheless to have a place where ordinary people can go and at least get a handle on some of the main points of the law of evidence I think is enormously important and I am very pleased that that will happen. 
The review mechanism that Mr Finlayson referred to is also an important part of this. There is actually a process to allow the workings of the legislation to be reviewed and amendments to be suggested. 
Previous speakers have thanked all those many people who were involved with this bill in its genesis its development and its passage through this House. I reiterate those thanks because it has been a collective task with a large number of people doing enormously detailed and thorough work. 
Finally on top of that I add my personal thanks to Ministry of Justice advisers; to the Justice and Electoral Committee which gave such helpful advice; to the clerks of the committee; to the Parliamentary Counsel Office which provided such fantastic advice as well; to the special adviser the Hon Robert Fisher; and to my colleagues on the subcommittee all of whom were lawyers apart from myself. They were enormously helpful to me as a lay person sometimes struggling to understand complex material. They were always willing to provide me with advice and information and to give serious consideration to what must have often appeared to be naive questions on my part. They were also willing to take on board some of my suggestions. So thank you. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora Madam Speaker. Kia ora tatou te Whare. First I congratulate Nandor Tanczos on being the only non-lawyer on the committee. It is something to be congratulated on. Often we give too much credence to the words of academics and lawyers when in fact reality is best served by ordinary people. 
In a paper delivered to Te OruRangahauMaori Research and Development Conference in 1998 Justice Eddie Durie spoke about values and ethics and Maori research based on his experiences as a Judge of the Maori Land Court for 20 years and as chairman of the Waitangi Tribunal for 14 years. Judge Durie’s conclusions about evidence law and Te Ao Maori are relevant to our reading today of the Evidence Bill. He said: “Part of the problem even today is that the judges through no fault of their own have been called upon to assess the mores of a society still largely foreign to them. This leaves scope for those who would profit from the situation with dubious but compellingly presented evidence to pull the wool over the judge’s eyes. … Conversely reliable evidence may also be improperly used or badly understood by judicial officers.” 
These statements are very much in line with the findings of the Law Commission that a change in approach by judges and lawyers is needed to achieve the desired reforms in evidence law. Their recommendation that common sense should be applied as to what is relevant and what should be included may require them to look again at their own existing knowledge because a question arises as to what is relevant and who defines it. 
Again I refer here to Justice Durie: “Researchers must set aside their distortions of past judicial precedent and its present-day effect. They must come to a better understanding of Maori society if they are to measure past conflict and conduct in a cultural context. To understand that society they must look inside its thought concepts philosophy and underlying values and avoid interpretations from an outward appearance. … It will be important to consider the poetry the songs the legends the proverbs the idiom and the forms of speech-making.” I have taken the time to quote from the good judge because his views are critical at this point in our history as we strive to ensure that knowledge is culturally relevant. If we are to move to a justice system that reflects Aotearoa properly we need to ensure that the Maori world view is integrated and respected throughout including the provisions of the evidence code. 
In that light both Parliament and the judiciary could benefit from a landmark study completed by Dr Nin Tomas earlier this year. Dr Tomas is Ngati Kahu and the first Maori to have completed a PhD in law at the University of Auckland. Her topic was Maori custom law—tikanga Maori—and its influence on land in the Tai Tokerau and in particular the Papatupu hearings held early last century. The hearings were held in te reo Maori before committees of rangatira steeped in the tikanga of Tai Tokerau and were about the Maori system of land entitlement. During the course of her study she found a coherent system of principles based on whakapapa whanaungatanga mana and tapu supported by the concepts of mauri and wairua. She explains the relationships between these principles practices and values as being integral to an understanding of law. 
Dr Tomas’ thesis also describes contemporary situations in which legal arguments seem to have plucked tikanga Maori out of thin air to support evidence without considering the framework of values needed to give coherence to the argument. Her thesis is a vital addition to the knowledge pool that can enhance the quality of debate in schools in courts and indeed in our parliamentary chamber. These are weighty issues and if we are to make our laws coherent and workable for the 21st century we must also ensure that tikanga Maori is considered properly and not by random choice. 
I also wanted to pick up an issue raised by my colleague Te Ururoa Flavell during the second reading about consultation. He recognised the contribution of the Law Commission the Rt Hon Geoffrey Palmer Dr Warren Young Helen Aikman and Justice Durie. He commended the Maori advisory committee and acknowledged the contribution also of important submitters such as Annette Sykes Moana Jackson and Maui Solomon. I also acknowledge the comments that both Russell Fairbrother and Richard Worth made in recognising the significant role that our Chief High Court Judge the full Supreme Court Justice Baragwanath and the Hon Dr Robert Fisher made in enhancing the final outcome. 
But the issue that arose between Mr Flavell Mr Fairbrother and Mr Worth struck at the core of the cultural clash to which I am referring. Mr Flavell said that although he recognised the contribution of the various bodies of experts it was disappointing that there was no formal forum in which hapu and iwi or Maori organisations were met. This goes back to comments made by Justice Durie and Dr Nin Tomas about cultural context and about understanding the principles of mana tapu whakapapa and whanaungatanga and what they mean to tangata whenua. As Mr Tanczos rightly noted consultation should not be just with judges juries lawyers and lecturers if it is to have any real meaning within Te Ao Maori. The laws of evidence have meaning to whanau hapu and iwi as well and they have as much right to be heard as the legal or academic fraternity. 
I look back at a Law Commission report from 1999  
Te Tikanga o te Ture: te Matauranga o ngaWahineMaori e pa ana ki tenei—Justice: the Experiences of Maori Women 
 which included the following statement: “The Treaty guarantees three things: protection partnership and participation. But we are never allowed the participation or the partnership for Maori. You haven’t got protection if you haven’t got participation or partnership.” It says a lot about how Maori see their participation in the world and their desire to ensure that whanau hapu and iwi are actively involved as part of the effective operation of the Treaty partnership. 
The Maori Party will be supporting the Evidence Bill at this third reading because we believe that the enhancements are useful the recommendations from the Justice and Electoral Committee are helpful and indeed that Messrs Fairbrother Worth Finlayson and Tanczos have done a good job. But we hope that the issues raised about matters such as tikanga Maori Maori customary law consultation and the cultural basis or bias of knowledge will continue to exercise the minds of all members in this House. Kia ora tatou. 
Bill read a third time.