Goldsmith Paul; Faafoi KrisHon PAUL GOLDSMITH (National): Just want to reassure Marama Davidson my colleague that yes indeed we do all share a desire to ensure that justice is attained by victims of crime and particularly in this area of sexual violence. I don't think you'll find anybody in this Parliament or anybody in this country who doesn't agree with that broad proposition. What we also recognise is that we live in an imperfect world and that the stakes are high in this area for obviously victims of crime but also for defendants where things have been alleged that didn't happen and that is the purpose of the trial. We wouldn't be having trials if there weren't those circumstances. So it's important that everybody has access to a fair trial and the right to defend themselves. That's what we are trying to tease out through this process.The other question because indeed the stakes are very very high in these cases. People's lives of course are affected colossally by the outcomes. So it's quite natural that there will be a fair amount of tension over the process. There's no way to avoid that given the stakes. So managing that process in a way that is civil and appropriate is of course something that we all turn our minds to and views on that change over the decades and have changed colossally.The question that I have though of course one of my observations having been in Parliament now for 10 years is that I don't know what the exact ratio is but quite often legislation passed by this House actually has the opposite effect of what was intended. Life is complex and particularly in regulations we set out to do one thing we pass a law and actually it turns out that the consequence was completely unintended and it's something quite different. That has been raised by a number of submitters in regard to this one which is to say in relation to turning a pre-trial recording of a cross examination maybe a year or maybe two years before it actually goes to trial from something that is rare and exceptional into potentially standard practice could have the unintended consequence of well first turning that situation into an area of great legal confrontation and debate and a fair amount of legal drama around that. But then given the fact that it may well be that quite often it is judged as necessary on basic rights to justice to recall that complainant back for the actual trial you might end up having made the attempt to reduce re-traumatisation of complainants actually getting to a situation where more often they're doubly retraumatised as a matter of course.So I'm sure that's not the Minister's intention. I'm sure that's not the drafters of this legislation's intention. But many people who work in the sector and know it inside out and know how it operates and know how lawyers operate and how the world really works are deeply concerned that this could well indeed be the outcome. So the Minister sort of batted it off. Everything will be fine don't worry and it won't happen. I'm struggling a little bit with the tightrope which is to say there's a very high threshold before the judge would order a recall. But we're also concerned about the rights of defendants to a fair trial. So if that is a major concern well then the recalls will happen reasonably frequently in which case you've got the re-traumatisation happening more often or if it doesn't happen hardly ever at all then we do have a real issue around the rights of the defendants to under the New Zealand Bill of Rights Act be able to defend themselves effectively. So I want to hear more from the Minister on that.Hon KRIS FAAFOI (Minister of Justice): I guess given the situation I do think that's a fair question to ask. What I would remind the member is that this is not a piece of legislation—to pick up a theme that has been used to my left—that has been rushed through any policy process. It's the product of two Law Commission reports and quite a lot of work from the Ministry of Justice in consultation with many stakeholders in order for us to find the right balance in terms of fair trial rights and also the protection of victims in a process which again is foreign to probably 99 percent of New Zealanders and that no one wants to find themselves party to in the first place.I again—and it may not be to the pleasure of the member—reiterate the safeguards are a discretion and the ability for a judge if they see fit to seek the ability to garner more information. We do have options to do that. The legislation obviously isn't passed so we don't have anything to fall back on in a New Zealand context. But I would point to a close jurisdiction which undertook an evaluation of a pilot and reported back in 2018 in New South Wales. My understanding of the report back from the evaluation of their pilot was just like we have in this situation here. There was concern around fair trial rights and what might happen as a result in the order of what the Hon Mr Goldsmith mentioned. I think the scenario he was painting was that we try to help but we end up making things worse potentially by having a retrial for example. The evaluation in New South Wales found that despite the concern around the process there were no appeals in any of the cases where similar components of this legislation in the regime across the Tasman were used.Again I do think it's fair to raise the concern and raise the question because that is the right thing to do in order to strike with precision that balance between the defendants' rights and also the complainants' rights. But the evidence we have from jurisdictions that are similar to us is that that does not translate into concerns being borne out by appeals in those cases where these types of methods are used. Certainly in New South Wales which is a jurisdiction very similar to us their evaluation of their pilot came back with no appeals of those sexual violence cases where these methods were used.