Penk ChrisCHRIS PENK (National—Kaipara ki Mahurangi): Thank you Mr Speaker. The Sexual Violence Legislation Bill is a very serious piece of legislation touching on very serious matters—fundamental rights of many people are involved. On this side of the House we have been clear from the very start that the stated purpose of the bill is excellent: to avoid re-traumatising as much as possible those who complain of sexual violence having been committed against them. Almost all of the content of the bill is excellent but of course that's not the same thing as saying that all of the content of the bill is excellent.There are positive examples of changes that the bill seeks to make and these include allowing a court to be cleared for a victim impact statement to be heard once guilt has been determined. These positive changes also include the ability for witnesses to give evidence in alternative ways to the extent that this does not impinge on the right of a person to have a fair trial. For these reasons the National Party has said that it will support the bill provided that the respects in which the bill is not excellent—indeed deficient—will be addressed and we have made a couple of practical suggestions to that effect in the form of a couple of Supplementary Order Papers (SOPs) in my name that lie on the Table of the House now and will be capable of a debate and indeed a vote at the committee of the whole House stage.To say that some trials will be fair under this new regime or alternatively that trials will be somewhat fair is the same as to say they will be somewhat useless. You can no more have a somewhat fair trial than you can be somewhat pregnant. I cannot put it better than Marie Dyhrberg QC president of the Auckland District Law Society put it in her column on this subject recently: It is vital that complainants feel free to step forward and have confidence in the legal system but this cannot be secured by eroding the rights of the defendant who has the right to be tried on all the relevant evidence." That is a theme to which I will return.Indeed a trial that is only somewhat fair and therefore somewhat useless could actually be described as worse than useless. And the reason for that is because of the unintended consequence that will arise from a trial that is not conducted in a fair manner—the re-traumatisation of someone who has complained of a sexual violence incident will be repeated and so the result of course would be a re-re-traumatisation of that person. This would take place if the trial itself were to be repeated in the event that an appeal were to take place on the basis that the trial was held in an unfair fashion in the first place. It would also happen in the instance of a trial that needed to be recommenced from scratch: a mistrial in other words. There are a number of reasons that that could happen including for example that some 12 months after the initial cross-examination had taken place prior to the trial the judge or the fact-finder in the case might be different. These are deeply problematic consequences. Albeit they may be unintended consequences; they would still be consequences and this House should think very carefully before entering those on to the statute book—notwithstanding that such changes would go in alongside some that I emphasise are indeed excellent and worthy and will achieve the aims of the bill.On that particular point—the pre-trial cross-examination—the question is not whether this should ever be able to take place. Indeed our law already allows in exceptional circumstances this to take place. But it should not be a matter of course and the reason for that is that the Evidence Act which the previous contributor to the debate Angie Warren-Clark has referred to allows the recall of a person who has already given evidence in circumstances where that might be necessary. So it is that a person who has given her or his evidence at an early stage prior to the trial can be cross-examined on it can be recalled under the legal regime that will apply if this bill is passed in its current form such that she or he will be recalled to give that evidence again and therefore be re-re-traumatised as I have said.The purpose of this bill must be to understand the purpose and give effect to a fairer conception of a criminal trial. A trial is a method of determining guilt of a particular person in particular circumstances at a particular time and place. It is not in itself a conversation on New Zealand's shameful record in relation to sexual violence—important though such conversations must be and imperative as it must be that all of New Zealand society and indeed this legislature should turn its mind to such a subject.In determining the guilt of a person and the consequences that that brings in relation to the law of the land we refer sometimes to minimal standards of criminal procedure. I use that phrase quite deliberately because it is the title of section 25 of the New Zealand Bill of Rights Act which details matters that as a matter of guidance in that legislation provide for a measure of comfort that a person who is found guilty in our system was really beyond reasonable doubt determined to have been so. The different elements of that should be traversed and taken very seriously. The section 7 report under the New Zealand Bill of Rights Act provided by the Attorney-General touched on some of these but not all of these and on some in an incomplete fashion. I would place on the record my intention to provide an alternative analysis—namely a shadow report under section 7 of the New Zealand Bill of Rights Act along these lines.Within my remaining time I do wish to touch upon a couple of the ways in which the legislation in these two particular respects that we have been outlining does not meet the test for minimum standards of criminal procedure in accordance with section 25 of the New Zealand Bill of Rights Act. One is that a person has the right to be presumed innocent and to reverse the onus of proof in terms of whether evidence may be heard—notwithstanding that of course it needs to be relevant and that's already the case. That is a problematic aspect of this bill and I'll come to that particular provision shortly.Another is that a person has the right to be present and present a defence at their own trial. In fact what we are seeing by the proposal that as a matter of course pre-trial cross-examination may take place is that a person will not only not necessarily be present at their trial as other provisions might indicate but actually that the trial need not be the complete record of the interaction used to determine whether a person is innocent or guilty of the crime as charged. I know that wording is somewhat laboured but I've attempted to explain in a clear and concise fashion the fact that we would have trial activity before the trial is undertaken and the problematic nature of that for determining whether a trial has been carried out in a fair fashion should be obvious to all.There is also provision section 25(f) that witnesses are to be examined by the defence and prosecution alike under similar conditions. And clearly if one side is to be allowed as of right or at least as a presumption to cross-examine before the trial takes place then clearly there is not an equivalence there—again inconsistent with the New Zealand Bill of Rights Act.The reason that these are important is because the offence that a person would be charged with and tried upon is the question of whether he or she or they had a reasonable belief that they had consent to a particular sexual activity. No one in this House I'm sure—and very few people in the country overall thank goodness—would argue that consent should not be required on every single occasion. However it's important to note that it may be relevant to a person reasonably believing that they had consent to a particular activity that that particular activity had taken place a number of times between them on previous occasions. That need not be determinative of course of whether consent was given on that final occasion upon which the trial is being held but it should at least be considered potentially relevant and there should not be presumption that it would not be relevant. In other words again quoting Marie Dyhrberg QC "consent to sexual intimacy must be given every time which no-one disputes but then [it] stretches logic to say [that] the jury cannot hear about intimate encounters the same couple had previously." Regrettably that's what the bill does among other things. We will support it if these two changes as expressed in a couple of SOPs will be supported at the committee of the whole House stage."