Franks Stephen: Evidence Bill — First Reading 
Franks Stephen: Evidence Bill — First Reading 
[Volume:625;Page:20417] 
STEPHEN FRANKS (ACT) 
: 
 First I want to dissociate myself from what I thought were some slightly churlish comments made by a member whose words I usually listen to extremely closely—Dr Richard Worth. I felt that the introduction to this bill by the Minister was one of the most workmanlike sober and respectable addresses I have heard in introducing a bill. There were no exaggerated claims to a new millennium for criminal justice and I thought he gave us a good survey of what the bill is about. So on this rare occasion I feel I cannot adopt Dr Worth’s position that it was in so many words a “useless speech”. I do not think it was useless at all. 
This is of course a bill that has been lurking about in gestation for a very long time. About a year ago I was sounded out as to whether I wanted to be part of what might have been a legislative experiment for the Government to go through a draft so that the kinds of questions that might be raised at select committee by members could be flagged or explored in advance. I thought that was quite a useful idea because as is undoubtedly the case once the Government has introduced the bill even if it is on areas that are regarded as lawyers’ law where there should not be—or it is not expected there be—major political divides it is nevertheless still not easy for a Government to see a Government bill dramatically changed because people will tend to say that it must have been a muck-up in the first place. 
I was interested to see that the Government had not slavishly followed the recommendations of the Law Commission. Clearly an independent view has been taken of a number of the issues. But it does not seem to me that it truly matches up to the claims to be a codification. I do not think the Minister used that term in his introduction and the precise words are not used in the explanatory note that the Government has attached to the bill but certainly the claim to be simplifying a complex morass of case law is the usual description of codification. The word “fake” is far too strong but some of this gives the appearance of codification when in fact all it is doing is listing the factors that judges look at without making the likely outcome any more obvious than before to the lay reader or the reader who is not a specialist in the area. 
For example I wanted to see whether we were going to have more or less encouragement to a kind of Miranda Law developing in New Zealand—that is trials whereby the primary effort of the defence is to attack the legality of the evidence so that the whole trial turns into a trial of police practice instead of a trial of the guilt or innocence of the offender. So I look at clause 26 “Improperly obtained evidence” hoping to see strong guidance to judges that the overall importance is whether the offender is guilty. Instead I find in subclause (3) a long list of the kinds of things that judges probably weigh now and no real indication of where the balance should lie. Will we have a relatively automatic exclusion of improperly obtained evidence or will we not? 
This is an area where the Government should have in fact taken a view or at least have indicated that the judge’s consideration should be primarily on the defendant—because the defendant should be judged on guilt or innocence and that might well be best determined on the basis of the improperly obtained evidence—but instead of on whether excluding the evidence is essential as a disincentive to future improper investigatory practice. In other words what is not there is a focus on the reason why evidence should be excluded not because it is wrong for the particular defendant but because we have a set of rules and it is wrong for them to be disobeyed and the judges are presumably deciding that disciplinary procedures are not as effective as simply making the evidence useless. At the same time of course they may be causing grave offence to the victims of the particular crime and the select committee should do quite a lot of clarification on matters like that. 
I am concerned also that I see nothing in here to deal with the so-called right to silence. It is possible that I not being an expert in these matters and not having practised in the courts for many years have not seen this dealt with but I have been through the bill and I think eliminating the right to silence is a long-overdue reform. 
Murray Smith 
: No it doesn’t. It retains it. 
STEPHEN FRANKS 
: I thank the member. That is an interesting one. Judges—I do not like to use the term left or right—from a conservative and from a radical bent of mind like Justice Thomas Justice Williamson and various others have in print called for the end of the so-called right to silence because it actually is inimical to justice. The so-called right to silence does not mean a right that protects people from being forced to say something but means it is difficult or is not appropriate for a judge or jury to draw conclusions from the failure of the accused to give evidence. 
We have situations that really affront lay people and obviously affront some judges such as the Marlborough Sounds case. In that case the defence counsel could cross-examine on all kinds of fanciful theories about what might have happened postulating alternative explanations for the facts when the one person in the court who actually knew—who must have known—what the real facts were could choose never to put himself at risk of being cross-examined on the theories advanced by his own counsel. That is wrong and it should go. 
I am concerned also that there is not a clear repudiation of so-called cell-mate confessions. I think cell-mate confessions have brought the criminal justice system into disrespect. Although they may have secured convictions for some deserving criminals the loss of confidence that many have in it and the fact that it encourages groups to form around offenders and to assert their innocence means that it has been a very expensive victory in some cases. There are references to co-offender confessions but I do not think they rule out cell-mate confessions in the way they should. 
I am also concerned that there is not the reform I would have expected about children’s evidence and what used to be called—as lawyers listening will know—section 23G which were the misguided changes made by Sir Geoffrey Palmer in 1989. There is change but I do not think the bill is as clear in this area as the Court of Appeal has been very recently. In some senses it is a shame that the bill has not caught up with the courts. This is no longer a codification; this would actually take the law back from where judges have now tried to steer it. Having decided that that rush of blood to the head in 1989 left our law in a dangerous position with some ancient rules of evidence that protected against improper convictions abandoned judges decided that it was time to go back. Children’s evidence has particularly been a problem in sex offender cases and some theories of child molestation and in this decade and the last part of the last decade we have seen a horrified realisation of miscarriages of justice all around the world. 
Finally I am concerned too that the penalties for perjury have not been dealt with in a way that I would have hoped. The provisions about witness anonymity and protection of witnesses are a substitute basically for the creation of a system where it is simply not worth trying to pervert the course of justice. That is the reform we would have liked to see signalled. We look forward to trying to improve this bill in the select committee.