Bishop Chris: Evidence Amendment Bill — First ReadingText is incorporated into the Bound VolumeBishop Chris: Evidence Amendment Bill — First Reading[Sitting date: 02 July 2015. Volume:706;Page:5094. Text is incorporated into the Bound Volume.]CHRIS BISHOP (National):The Evidence Act 2006 was a big step forward for criminal law in New Zealand. I was a law student in 2006. In fact I was doing fourth-year law at the time and I did evidence law so it was interesting when I was doing that because the Act came into force while I was actually a student. So we had to learn two bits of law. We had to learn the Evidence Act which as David Parker rightly pointed out earlier in the House codifies essentially the common law rules. We also had to learn some of the common law rules and some of the statutory provisions that overlapped with the common law. So it was an interesting time to consider evidence law. But it is a really important Act and the Hon David Parker is very much correct to point out that it is of fundamental importance. I was very fortunate to be taught by Associate Professor—I think she was at the time—Elizabeth McDonald and she has actually had some involvement in the Law Commission review that has led to this bill. She is a very formidable figure.It is a very important Act. The process of the codification of evidence law in New Zealand actually started back in 1989. Like so many things we often deal with in this Parliament Geoffrey Palmer can be linked to it because it was something that the Law Commission started to look at back in 1989 and the eventual outcome 17 years later was the Evidence Act. It is of such importance that it is one of those Acts where Parliament put in place a review mechanism so that every 5 years the Government would have the ability to consider whether or not the Act was working as intended.The amendment bill that we are dealing with today comes out of the review that the Government commissioned in 2011 5 years after the bill was passed. The Law Commission did its review and published its report in 2013 and so we are dealing with the bill that results from that. And as has been pointed out by a member previously the Government actually adopted all bar one of the recommendations of the Law Commission.Other members have gone through the bill in quite a high level of detail. I want to focus my remarks on the changes the bill makes to the sexual experience of complainants in sexual cases. It is I believe an important change that the bill makes and something that I am looking forward to examining in greater detail on the Justice and Electoral Committee which as my colleague Jono Naylor pointed out is a good committee that operates in a fairly collegial fashion much like the Regulations Review Committee does which I was lauding only about an hour ago.The issue of the admissibility of the sexual experience of complainants in sexual cases in New Zealand has I think it is fair to say a mixed history. The traditional view was of course that the past sexual activity of complainants was relevant to the credibility of complainants even where there was no relevance to the alleged offending. Where consent was an issue in sexual cases—and it is so often the case in those sexual cases that consent is disputed—the defence would often argue that a complainant had consented because of past sexual encounters. There are some horror stories of the way in which complainants on the stand were put through the ringer by defence council about their sexual reputation or their past sexual encounters which is now ruled out completely. In some ways it was a form of propensity evidence.As the Law Commission notes the common law gave considerable latitude to the defence counsel and to the defence more generally in raising this as a form of defence and raising it in evidence. Parliament acted in 1977 by inserting section 23A of the Evidence Act 1908 into the Evidence Amendment Act of 1977 thus passing what is commonly referred to as rape shield legislation which was initially applied to rape only. Then in 1985 as part of the widespread reform of criminal justice statutes and evidence statutes it was brought into all cases of a sexual nature which I think is appropriate. That did place some limitations on what evidence could be applied to be admissible in those cases. The evidence could be admitted only if it was relevant and it could be admitted only if to exclude it would be contrary to the interests of justice. Section 44 of the current Evidence Act essentially replicates that provision.So what does this bill do? There is a plausible argument—one that I think some members have sympathy with; I certainly do—that sexual history between complainants and defendants should be absolutely prohibited. There is a plausible argument for that and the debates go back and forth on that. Actually it is true to say that New Zealand is one of the few jurisdictions to allow it. There is a plausible argument that it should be prohibited but I think that the balance of opinion—and I think that I subscribe to this view—is where the Law Commission came down which is that where there are cases involving a prior relationship those cases where consent is an issue will always turn on that belief in consent. So inevitably the prior relationship or the prior sexual relationship will be relevant to the question at issue in the case.So this bill does not prohibit sexual history evidence but what it does do is put in place some requirements that need to be fulfilled before an application can be made to offer that evidence in the case. So the bill says that no application may be made to offer evidence or ask any question about the sexual experience of a complainant unless the party proposing to offer the evidence has complied with requirements set out in the Act. The requirements are that they must provide every other party with a written notice stating the party’s intention to offer the evidence the name of the person who will give the evidence and the subject matter and the scope of the evidence. There is a series of other requirements that are laid out in the bill.This picks up on Elisabeth McDonald and Yvette Tinsley’s suggestion to the Law Commission review in 2011 which reported back in 2013. It actually replicates I think the recommendation of the Australian Law Reform Commission. I understand that essentially what is being proposed in this bill has been in place in the state of Victoria in Australia since 2009. I for one am really looking forward to hearing from some submitters at the select committee about the experience of that in Victoria and how that has actually worked in practice. They have had 6 years of that to see how it goes. I am really looking forward to hearing whether or not it has worked in Victoria and whether or not it is something that we should be replicating in New Zealand through this bill.The relevant page from the Law Commission report is page 138 paragraph 7.33. In fact the whole of that section in the Law Commission report is worth a read. As my colleague David Clendon mentioned previously it is a very worthy report. It is a lengthy document and quite technical in its scope as I said at the start of my speech but it is actually really really important to the way in which criminal trials are conducted in this country. I support this bill. I certainly support it going to a select committee.The issue that I have canvassed in my speech today is one that Parliament has considered at various points. It is something that is contentious within the legal fraternity but it is something that Parliament has to grapple with again and I think the changes that are being promoted by the Government through this bill will be a useful change to the law of evidence to make sure that victims or alleged victims or complainants in sexual cases are treated with respect and treated with dignity because that is everyone’s right through the criminal justice system. With those remarks I commend this bill to the House.