Nash StuartSTUART NASH (Labour—Napier): I would like to—The CHAIRPERSON (Hon Chester Borrows): I am sorry to interrupt the honourable member—[Interruption] Sorry I have a wicked sense of humour. The time has come for the Chair to leave the Chamber. The Committee will resume at 7.30 p.m.Sitting suspended from 6 p.m. to 7.30 p.m.The CHAIRPERSON (Hon Chester Borrows): Tēnā koe e Te Whare. Tēnā koutou te whānau o Te Whare. Kia ora mai tātou tēnā tātou katoa. Members when the House suspended the member Stuart Nash was robbed of his opportunity to speak by the arrival of the time to leave the Chamber for the dinner break and I ask him to get to his feet and give us 5 minutes of his best.STUART NASH: First of all let me just go over what I was talking about when I was interrupted. Good evening Mr Chair. That is it. No look I should not make light of this because this is actually a very serious bill. I would like to talk about clause 16. This is the application to offer evidence or ask questions about the sexual experience of a complainant in sexual cases. This is a very serious matter.The CHAIRPERSON (Hon Chester Borrows): Order! I just ask the member to resume his seat momentarily. Sorry my oversight—I call Stuart Nash.STUART NASH: As I was saying.Hon Member: You'll have to start again.STUART NASH: OK. Look let me start again. Good evening Mr Chair. This is a very serious bill and I do want to talk about a serious clause. This is clause 16 inserting new section 44A. This is the application to offer evidence or ask questions about the sexual experience of a complainant in sexual cases. First of all let me outline what clause 16 is about but then let me outline the couple of concerns I do have about the practical application of this.First of all I think this clause is very good. What this says in 44A(1) is: An application under section 44(1) must comply with subsections (2) to (5) (as relevant) unless—(b) every other party has waived those requirements;"—we are talking about asking questions about sexual experience—"or (c) the Judge dispenses with those requirements." Let me come back to why or how a judge can dispense with those requirements. But let me first of all say why I agree with this. So what 44A(2) (3) and (4) basically say is that if a party wants to offer evidence about the sexual experience of a complainant if a party wants to ask any questions about the sexual experience of a complainant or if any document is intended to be produced as evidence of the sexual experience of a complainant then notice is required under subsection 2 and must be accompanied. So this is in essence asking the complainant's permission to dig a whole lot deeper into their sexual history.What it says here is that this application must be complied with unless the judge dispenses with those requirements that I have just outlined. Now what it does in subsection 6 is it outlines the areas in which the judge can dispense with those requirements. The first one 44A(6)(a) is "having regard to the nature of the evidence or question proposed to be offered or asked no party is substantially prejudiced by the failure to comply with a requirement;". I sort of get that. I understand that. That makes sense. In 44A(6)(b) it says: "compliance was not reasonably practicable in the circumstances;"—and again I understand that and I can see how you could mount an argument in that case. But it is 44A(6)(c) in clause 16 that really causes me concerns—this is on page 8—and this is a reason why the judge can dispense with any of the requirements i.e. to seek permission to ask about a person's sexual history and that is if "it is in the interests of justice to do so." Now that is a very very wide condition that it provides to judges.Let me outline the concerns I have there. First of all what is the definition of the "interests of justice"? I know of a number of cases—and this is the reason why this bill is here—where a woman's sexual history has been brought into play as use of evidence against her. There is a case of a very good friend of mine—she is a high-profile person in Napier. For obvious reasons I am not going to mention her name but she is quite open about this. She accused someone of rape. What happened is the defendant's attorney painted this woman as a man-hating woman who was determined to bring this guy down. She is about 56 years old. Her whole sexual history was brought into play. She was painted as just a not very pleasant woman who had a loose morality. Now that is absolutely not the case—but this judge tore her to pieces.This woman was an advocate for women victims of sexual violence and she said to me "You know if a young woman came to me now after what I have been through I would find it incredibly hard to recommend that she go to the police and make a complaint."—and this is a woman who has advocated on behalf of women victims of sexual violence and that is an absolute travesty. So I know what this part of the bill is trying to do and I applaud it in terms of seeking permission to dig really deep into a woman's past. But when there is a clause here that says the judge may dispense with these requirements because "it is in the interests of justice to do so." I can imagine that this could turn into a very complex legal argument. I can imagine a smart lawyer successfully challenging the definition of the "interests of justice" on behalf of his client—the interest of justice argument—and especially when we consider that the reason this is here the reason this is before the Committee is because this is a common tactic used by defendants to discredit women. I have real concerns about how this will be used from a practical perspective.I get what the bill is trying to do and I think it is admirable that we must seek permission from the woman before being allowed to go there. Obviously there is another way that we can dispense with these requirements and that is if every party has waived those requirements. That is if the defendant and the prosecution have said: "OK no problem. Let us dig as deep as we can." But from what we know about sexual abuse and the amount reported—let alone the number of cases that are successfully tried—it is very very minuscule.That is why I have real concerns about this because as mentioned this puts a whole lot of power in the hands of a judge. Of course it is the judge's courtroom so he or she has the discretion to make decisions but the decision around what is in the best interests of justice I would argue is a really subjective call and I would like to see that used absolutely sparingly when a judge does decide that it is in the interests of justice. Because if it is not used sparingly if it is given a loose definition that can be successfully argued by every two-bit lawyer who comes in front of a judge then we know that the application to offer evidence or ask questions about the sexual experience of a complainant in sexual cases will actually mean nothing. It will not have the desired effect which I believe this legislation tries to give effect to and that is to remove the fear among women who have been victims of sexual abuse so that they are coming forward without fear or prejudice that their reputations are going to be dragged through the mud.I know the Minister in the chair is not responsible for this bill therefore—with all due respect to the Minister I am not being disrespectful—I doubt it is worth asking her a question about how she sees this is going to be applied. But the Minister has had responsibility for pretty serious portfolios around this. I would be interested in whether she has any ideas around this—or whether she like me would like to see a very narrow definition of how the judiciary do apply this. I would like to put on the record that I do have concerns that this could be open to—and I will not say abuse that is the wrong term; this could open a Pandora's box so to speak. Thank you very much."