Parker DavidEVIDENCE AMENDMENT BILLIn CommitteePart 1 Amendments to Evidence Act 2006Hon DAVID PARKER (Labour): I would like to make my first contribution in respect of the Minister's Supplementary Order Paper 188 which amends clause 26 of the bill. The Supplementary Order Paper makes three changes. I am not going to talk about the changes to clause 16 or clause 35. They seem pretty clear and uncontentious. I do want to just check that my understanding is right in respect of clause 26(2) which inserts new section 90(7) into the Evidence Act. This concerns previous consistent statements of a witness. It is a bit confusing to follow because the original provisions do not lie in section 90 of the original Evidence Act 2006. They appear to sit in section 35(3) of the Evidence Act which concerns previous statements of a witness that are consistent with the witness's evidence and they are admissible currently if: (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) the statement provides the court with information that the witness is unable to recall." It seems that the Law Commission recommended that that part of section 35 be moved to what is going to be amended section 90 through this clause 26 but the recommendation from the Justice and Electoral Committee was that this admissibility of a prior consistent statement be limited to allowing the witness to refresh his or her memory rather than the previous consistent statement of the witness being admissible in evidence as of right in those circumstances. I am just a little confused at how this change works given that the two subclauses after that still apply which are the subclauses that are in the existing clause 26(2) inserting the new subsection (7). The two conditions are in paragraphs (a) and (b) and say that "(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) the statement provides the court with information that the witness is unable to recall." So if the previous statement is to be admissible now it is going to be admissible not just to refresh the memory of the witness but effectively as evidence in its own right which is now going to be there even if having had their memory refreshed the witness cannot remember it. I wonder whether the explanatory note is right to say that that is what the Law Commission actually recommended because that is what the explanatory note says which is to say that the Law Commission recommended—well it says this reflects the original policy intent to amend section 90 in line with the Law Commission's recommendation to move the substance of section 35(3) to section 90. So that is my first question for the Minister of Justice. My next question relates to what has been done in respect of business records. The bill quite rightly fixes a problem identified with the Evidence Act 2006 which is that the admissibility of business records was not quite right so the definition in section 16 of the Evidence Act 2006 that deals with the "business record" is amended and in amending it it makes it clear that a business record that is a hearsay document that can be admitted as evidence of its content cannot "include a Police record that contains any statement or interview by or with an eyewitness or a complainant or any other person who purports to have knowledge or information about the circumstances of alleged offending or the issues in dispute in a civil proceeding". It is a longer definition than the original amendment that came to the select committee which was "does not include a Police record that contains any statement or interview by or with an eyewitness or a victim". So it has been extended in the way that was in the longer form that I read out. That seems to me to be sensible and therefore I am speaking in support of the amendment that has been made at the select committee because the normal rule against hearsay which is being abrogated in respect of business records should not be abrogated in respect of a police record of a statement or interview by an eyewitness or a complainant or any other person who purports to have knowledge. So I think that the select committee change there is useful and the Labour Party will be supporting it. I think if my understanding of the earlier matter that I referred to in terms of the new form of clause 26(2) inserting new section 90(7) is correct then we will be supporting that too but I just want to check that I have got that right. I want to turn now to Jan Logie's Supplementary Order Paper 195 which is about the ways in which evidence can be given by complainants in criminal proceedings that are sexual cases or concern domestic violence. The bill already makes some good improvements to the way in which child witnesses can give evidence in similar cases and that is achieved in the proposed new section 107B of the Evidence Act 2006 inserted by clause 32 of this bill. Jan Logie is proposing an extension of that to the ways in which complainants can give evidence even if they are not child witnesses. I am aware that the Law Commission has done work in respect of this. I think it is unfortunate that some of the earlier work that was done by the Law Commission in this regard was I think rejected by the prior Minister of Justice Judith Collins and that I think is why Jan Logie is trying to do this by way of her Supplementary Order Paper. We know that the number of successful prosecutions in respect of crimes of sexual violence and domestic violence that is not sexual—the rate of conviction is very low. It is very very low. One of the reasons for that is that complainants are reluctant to give evidence. One of the ways that as a society we can improve the experience of complainants is through these perhaps more shall I say protected ways of giving evidence: by video or behind a screen. That I agree is completely appropriate in respect of child witnesses and I think it is probably appropriate in respect of complainants too. I think that subsequent recommendations or responses from the department to some of the Law Commission's earlier recommendations might see this come forward as Government legislation in a future bill. We would be willing to consider that then if this Supplementary Order Paper does not get up. I think the reason that Jan Logie is bringing this forward is that she is frustrated that the prior Minister—not the current Minister in the chair the Hon Amy Adams—has pulled that out so I will be interested to hear from the Minister as to whether the Government will be supporting Jan Logie's Supplementary Order Paper which I think has got No. 195 at the top and it is about clause 32 inserting after the new section 107B this new section 107C that she proposes and some related documents. It is quite complex—there are other cross references in the Act that you have got to get right to make these things right. I hope—The CHAIRPERSON (Hon Chester Borrows): Order! I might just be able to help the member. It appears that no Supplementary Order Paper has been received from the member Jan Logie. There was a proposal but it is no longer being tabled.Hon DAVID PARKER: I picked this up off the Table Mr Chair.The CHAIRPERSON (Hon Chester Borrows): Maybe we can seek further clarification to the clarification we have already had.Hon DAVID PARKER: Well OK thank you. I will accept that clarification.The CHAIRPERSON (Hon Chester Borrows): Maybe it should have been taken off the Table.Hon DAVID PARKER: Yes well that makes it easier because it is actually quite a complex thing to do by way of Supplementary Order Paper and so I congratulate Jan Logie on the effort that she obviously put into this. But maybe she came to the conclusion that it was actually better to leave that to a process because one of the points that I was going to make is that it may be that some submitters on the legislation had not properly considered that in their submissions and it might be better to improve that area of the law in a later bill.The CHAIRPERSON (Hon Chester Borrows): I think it was in light of select committee changes that were made.Hon DAVID PARKER: Right OK. Thank you. In terms of the bill—"