Worth Richard: Evidence Bill — First Reading 
Worth Richard: Evidence Bill — First Reading 
[Volume:625;Page:20414] 
Dr RICHARD WORTH (National—Epsom) 
: 
 It is a pleasure on behalf of the National Party to speak in support of the Evidence Bill and National will support its referral to a select committee for the processes of public submission and consideration. It is also an opportunity to follow Philip Goff who I do not think will be the Minister of Justice when this bill is enacted. It seems clear to me and to my colleagues on this side of the House that there will be a change of Government and Philip Goff will no doubt seek more remunerative employment in other fields of human endeavour. 
I would like to talk about some aspects of the bill perhaps more in a preliminary way in the context of what the law of evidence is all about. But before I do that I would like to pick up on a comment that Philip Goff made and I would just like to say that the pressure to see this legislation advanced to its present position has come from a variety of sources and one of those pressure points has been the media. I would single out for special mention the commitment to a new Evidence Bill of the business weekly magazine  
Independent 
 and the unflagging efforts of one of its very senior editors Denise McNabb in that regard. 
What I want to say about the law of evidence is this really. It is a set of rules by which judges determine what testimony and exhibits may be accepted and how they may be used. It is central to the day-to-day operation of New Zealand’s administration of justice. It affects obviously every piece of evidence given by every witness in every court so its rules must be clear principled and readily accessible. The problem has been that in its present form the law of evidence is really a patchwork of disparate elements that have never been coordinated and whose effect is frequently disputed by experts. I see Mr Fairbrother is in the House. He has had substantial experience in the criminal law and I am sure he will agree with this. The problems result from ancient rules of the judge-made common law that themselves are often not really precise and often not readily accessible and they have been met by ad hoc statutory reforms that have in turn presented difficulties both of construction and I would also say of scope. 
A good example of that would be the Evidence Amendment Act (No. 2) of 1980 which responded to an over-narrow expression of the law of hearsay in a case well known to lawyers and law students alike— 
Myers 
 v  
the Director of Public Prosecutions 
. So it was a good move when in August 1989 the then Minister of Justice Sir Geoffrey Palmer gave the Law Commission an evidence reference and the terms of that reference were to make the law of evidence as clear simple and accessible as practicable and to facilitate the just and speedy judicial resolution of disputes. In that reference the commission was tasked to examine the statutory and the common law governing evidence in proceedings before courts and tribunals with a view to making recommendations for reform with a view to codification. That is what this bill is all about. It draws together the common law strands and the statutory strands primarily based in statutory terms in lawmaking in 1908—some significant period ago—to produce the now Evidence Bill. 
I think it is also relevant to say something about the adversarial system. New Zealand and other common law democracies particularly Western democracies have a system known as the adversary system. The guts of it is that the parties present evidence to a judge if the judge is sitting alone or to a jury if the judge is sitting with the jury. They make decisions after applying the relevant law to the facts. The fact finder must first decide what the facts are by assessing the evidence offered by the parties. According to one scholarly evidence text—and huge amounts of material have been written on the law of evidence—evidence of a fact is information that tends to prove it. 
I would like to speak about the operation of the adversary system because when the Justice and Electoral Committee considers this bill it will have to look carefully at whether what we are doing is consonant with the main features of that system. I would say that there are probably four factors of that adversary system. The first is that the judiciary plays a passive role in dispute resolution. One need only to look at what goes on in the French courts which have an inquisitorial system to see that their system operates on a very different basis. But here under our adversary system the judiciary does not actively seek out cases or embark on investigations. The judiciary reside in our courthouses and is only activated when litigants bring cases before them. Even when adjudicating our judges should not archetypally move from passivity to activity and interfere with counsels’ development of cases. 
It has been said in the past that the judge who speaks too much is “no well-tuned cymbal” and also that a judge who descends in the arena is liable to have his vision “clouded by the dust of the conflict”. [ 
Interruption 
] I cannot hear the interjection that is coming from the other side but I can assure Mr Fairbrother who is making troublemaking noises if he has read widely on the law that these are direct and well-sourced quotations. So the judiciary is not only to be passive; it is also to be neutral. It is not to pursue some particular theory of a case. It is to allow counsel to put their separately formulated cases before the court. 
The second point is that counsel bear the burden of actively prosecuting clients’ cases before the courts. So their obligation is to put as strongly as they can their client’s case and to diminish their opponent’s case to the greatest extent possible and this is the linkage of the adversary system with the old system of trial by battle. The lawyer is the champion of the client. I remember the words of Lord Denning: “In litigation as in war no holds are barred.” The third point is that our adversary system is accusatorial. The accuser the party who asserts some cause of action against an accused bears the express burden of proving his or her case to a high level of certainty in criminal cases. The fourth point in particular reference to criminal cases is that our adversary system employs the institution of the jury. In jury trials the judge is the trier of law and the jury is the trier of fact. So the jury injects this lay assessment of the evidence in the law into the trial. 
So our rules of evidence—and they are particularly relevant in the context of this Evidence Bill—are framed because we have chosen as our system of law this adversary system. So what is this bill about? Philip Goff has made some comments about it. The public can judge whether those comments are helpful. I choose to judge them as not particularly helpful but I would say that the bill covers such matters as rules of admissibility including things like hearsay opinion evidence improperly obtained evidence and propensity evidence. It deals with questions of privilege and confidentiality. It deals with the trial process—and that is why I spoke about our adversary system—and then perhaps less significantly it deals with rules for giving evidence from overseas to a New Zealand court and evidence given in New Zealand to be used overseas. 
The bill has several purposes and I will conclude on this point by saying that it is to help secure the just determination of proceedings by first of all providing for facts to be established by the application of logical rules promoting fairness to parties and witnesses protecting rights of confidentiality and other important interests and finally avoiding unjustifiable expense and delay. It is technical legislation and appropriately is referred to the Justice and Electoral Committee. National supports this bill.