Foster-Bell Paul: Evidence Amendment Bill — First ReadingText is incorporated into the Bound VolumeFoster-Bell Paul: Evidence Amendment Bill — First Reading[Sitting date: 02 July 2015. Volume:706;Page:5099. Text is incorporated into the Bound Volume.]PAUL FOSTER-BELL (National):I am sorry Mr Speaker; I was a little bit slow off the mark there. It is a pleasure to rise and take a call in this first reading debate of the Evidence Amendment Bill a very important piece of legislation being introduced in the name of the Hon Amy Adams our assiduous and hard-working Minister of Justice in this National-led Government. Evidence in our legal system is incredibly important and it is a matter that this House does take—and I am sure all members are of this view—with the utmost seriousness given its important part in ensuring we have a fair and reasonable system for justice in this country.I was fortunate enough 2 weeks ago to be in Runnymede in Surrey for the 800th anniversary of the sealing by King John—and it is a myth that King John signed the Magna Carta; he did seal it. Over that 800-year period since that momentous event our legal system has developed many protections checks balances institutions and traditions that provide for fairness. One of the very first times that it was actually put down in writing and became the law of the land that people were to be judged by their own peers was contained in the Magna Carta. Thinking of that I think that the way in which people are judged by their peers by juries comes down to how the evidence is admitted and the veracity of the evidence but also how fairly that evidence has been obtained and these reforms contained in this bill do make a significant contribution to modernising the way in which evidence is treated in our legal system to ensure that fairness.Just to go back to a general background the New Zealand courts do follow the common law adversarial traditions in litigation although there are exceptions including the mediation process in the Family Court under the Family Proceedings Act 1980. The evidence that is required to establish either a civil claim or to prove a criminal charge is presented to the court by the parties and this usually done through the calling of witnesses and the questioning of either the party’s own witnesses or the questioning—the cross-examination—of witnesses on the other side of the case. The very serious criminal charges tend to be tried by a judge sitting with a jury as are a very small number of civil cases. Other cases generally the more minor ones whether civil or criminal are tried by a judge sitting alone and the judge’s function in that particular regard is to preside over the hearing to decide on the case according to the evidence and to rule as to the admissibility of that evidence. In a trial with a jury however it is the jury’s function to determine the facts and to give the verdict and the judge’s task is to direct them about the application of the law to rule on the admissibility of the evidence and to assist them with the summing up of the respective cases at the end of the trial.In neither civil nor criminal trials may the judge or jury go beyond the evidence placed before them or accepted by the parties or embark on an independent inquiry of the facts. This is a very important point and it has been accepted. It was established most recently I think in the case of Jayasena v The Queen a 1970 case which referred to section 3 of the Ceylon Evidence Ordinance and which stated—and I do think this is relevant in this case—as follows: “A fact is said to be proved when after considering the matters before it the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.”So having established this background as to the nature of the law of evidence and where it comes from I think the technical changes proposed by the Minister’s bill the Evidence Amendment Bill make very good sense in modernising what has become a system that exists now in a very different world to that in which that 1970 case was heard and certainly a massively different world to the one in which Magna Carta was sealed 800 years ago. So the purpose of this bill is to better protect vulnerable witnesses and to ensure that evidence is handled appropriately and securely and sensitively in the complex and technologically sophisticated world in which we live today.No Government can ever legislate away the pain and suffering faced by the victims of crime but this is a bill that will allow the more vulnerable victims and witnesses to be better supported through the judicial process. It is part of a wider set of outcomes that this Government is hoping to achieve that put victims at the heart of the justice system through some of the new legislation that this Government has stewarded through the House. The main provisions of this bill improve the court processes for vulnerable witnesses. We have actually brought in a presumption that child witnesses will be able to give evidence in alternative ways and will have the right to a support person. I think this is incredibly important for our smallest and most vulnerable citizens who have been the tragic victims of some of the worst offending you can imagine. It does strike me as odd that a judge would have to give permission that a child would be allowed to have a support person during the time in which they were giving their evidence to the court. It is also out of step I think with the world in which we live today—that those alternative ways of giving evidence were not automatically available to children.This bill replacing that former state of affairs in which the judge had the call introduces a presumption that all child witnesses will have access to those alternative ways of giving evidence—for example via the video recordings of a police interview or via closed-circuit television which is recorded from behind witness screens in the court. In adding the right to have a support person we do genuinely believe that this will reduce the stress on those children who are giving evidence who may be the victims of some of that appalling offending. We also think that this will help give more reliable and accurate evidence during the judicial process.There are some restrictions we are introducing to take into account the changing world in which we live including restricting defence counsel’s access to the police videos of witness evidence in sexual and violent cases and all child complainants’ evidence. The idea behind this is to reduce the risk of those video records being misused or misplaced. It is around the security and one can only imagine how upsetting it would be for a young victim and their family to find that a video recording of their evidence had been accidentally left on a device—for instance a laptop or a recording device—that was disposed of by the court and somehow ended up in the wrong hands. But even worse if there was a malicious case—and I think my respected colleague Brett Hudson the list member based in Ōhāriu referred to the horrific case of Clayton Weatherston where a vindictive defendant actually used evidence that was provided in a cruel attempt to harass the family. I think in those particular circumstances it is appropriate that the actual recordings are not left in the wrong hands. There is an offence that we will be introducing in relation to the unauthorised possession use and distribution of video-recorded evidence in court.We are changing the notice requirements for evidence of previous sexual history and I think this is only fair that when we are talking about bringing in someone’s sexual history with another person other than the defendant advance notice is given. This is a change that was recommended by the Law Commission and I do believe it is uncontroversial in this House. It is very sensible and should be I think moved through. In terms of privilege we are changing the privilege rules around plea discussions. We believe that extending privilege to plea discussions—this is the sort of privilege that already applies to settlement negotiations and mediation in civil proceedings. We think it will enable a full and free plea discussion and encourage the earlier disposal of the case. This is a very good bill and for that reason I commend it to the House.Bill read a first time.Bill referred to the Justice and Electoral Committee.