Goff Phil: Evidence Bill — First Reading 
Goff Phil: Evidence Bill — First Reading 
[Volume:625;Page:20412] 
Hon PHIL GOFF (Minister of Justice) 
: 
 Thank you for that formality Mr Speaker. I move  
That the Evidence Bill be now read a first time 
. It is my intention to move that the bill be referred to the Justice and Electoral Committee. This bill brings together in one place the common law and statutory provisions relating to evidence. The bill will replace most of the existing law on the admissibility and use of evidence in court proceedings. Evidence law is largely judge made comprising decisions made in response to a particular set of facts before the court. The statutory provisions dealing with evidence are contained in a number of statutes and have been reformed over a long period of time on a piecemeal basis. The resulting complexity and inconsistency of the law of evidence results in undue legal argument expense and delays in proceedings in order to accommodate arguments over the issue of admissibility. The bill brings the current mosaic of statute and case law into one comprehensive scheme. 
The bill has its origins in 1989 when the Law Commission was given terms of reference by the then Minister of Justice. The purpose was to make the law of evidence as clear simple and accessible as is practicable and to facilitate the fair just and speedy judicial resolution of disputes. With this purpose in mind the Law Commission was asked to examine the statutory and common law governing evidence to proceedings before courts and tribunals and to make recommendations for the reform with a view to codification. 
The Law Commission was thorough. It spent a decade reviewing aspects of the evidence law publishing discussion papers and seeking the views of those involved in the justice sector including a wide variety of community groups academics officials and members of the legal profession and the judiciary. In 1999 the Law Commission published its report on evidence and an evidence code amalgamating the various aspects of the law of evidence. 
The proposals in this bill are generally based on the recommendations of the Law Commission and on the provisions of the evidence code. The purpose of the bill is to help secure the just determination of proceedings. It sets out to provide for facts to be established by the application of logical rules. It aims to promote fairness to parties and witnesses. It protects rights of confidentiality and other important public interests. It seeks to avoid unjustifiable expense and delay. 
The bill’s fundamental principle is that all relevant evidence is admissible unless there is some policy reason to exclude it. Evidence must be excluded if it is irrelevant if its probative value is outweighed by its prejudicial effect or if it would needlessly prolong a proceeding. 
The bill is over 200 clauses long and covers a wide range of matters. It deals with rules of admissibility including matters such as admissibility of hearsay opinion evidence improperly obtained evidence and propensity evidence. It deals with privilege and confidentiality including various types of privilege such as that enjoyed by legal advisers and ministers of religion. It also includes the privilege against self-incrimination and provides a protection for confidential information. It deals with the trial process including compellability of witnesses support persons and rules around questioning witnesses as well as alternative ways of giving evidence. The admissibility of documentary and machine-generated evidence is also covered in the bill. It deals with overseas evidence. The bill covers the rules for giving evidence from overseas to a New Zealand court and evidence given in New Zealand to be used overseas. 
The bill is generally consistent with existing trends in the law and clarifies the existing law by addressing ambiguities and inconsistencies. It does however fundamentally change the current law in some areas. There are some matters in the bill where the arguments for and against are finely balanced. In recognition of this I invite the select committee to seek submissions regarding those matters and I anticipate that those expert in evidence law will make submissions. Changes to the proposals may be considered after the arguments have been fully canvassed by the select committee. 
I now want to refer to three areas to which further consideration may be given by the select committee. The first relates to the reform of the hearsay rule in relation to a defendant’s out-of-court statements being admissible against co-defendants. Currently the common law provides that one defendant’s statements cannot be used to implicate another defendant. Juries are directed to use evidence for one purpose but not for another. This gives rise to a jury direction which may seem illogical to the jury—that is one can use the evidence in respect of one defendant but not for a co-defendant even though it seems relevant to the jury. The bill proposes that evidence in this regard will either be admissible against all defendants or none at all. Arguments against admitting prosecution evidence include oppression unreliability or improperly obtained statements. If the defence leads the evidence then arguments against admitting it include the rule against hearsay and the previous statements’ rule. The effect of this rule will be that statements that previously were not admissible against co-defendants will be. 
The second area is the proposed truthfulness rule and the subsequent abolition of the collateral issues rule. The truthfulness rule provides that evidence of truthfulness will be admissible if it is substantially helpful in assessing that person’s truthfulness with additional special rules for the defendant. The collateral issues rule is abolished by not being included in the bill. The rule applies when cross-examination is directed to a matter that is not a fact in issue—usually questions about a witness’s truthfulness. The rule treats answers given by a witness as final and prohibits evidence intended to challenge those answers. I invite submissions on the abolition of the rule. 
The Law Commission states that the policy behind the rule is essentially one of efficiency and that the court’s attention should not be needlessly diverted from the main issues. It goes on to state that although this reasoning is sound the rule can result in excluding helpful evidence if it is applied too rigidly. Further the Law Commission considers that other rules such as the relevance requirement and the general exclusion rule will operate as a restraint on offering evidence of truthfulness that has little value. 
The third area covers changes to the law of self-incrimination. The privilege against self-incrimination permits a person to remain silent when required to provide information on the grounds that the information would incriminate that person. Currently the privilege is available where a reply may lead to prosecution for any criminal offence or to liability for a civil penalty. The Law Commission proposed that the privilege should be restricted to incrimination for crimes punishable by imprisonment. The bill provides that privilege should be available where the information required would be likely to incriminate the person in relation to a criminal offence not just those punishable by imprisonment. That is because the stigma of a criminal offence justifies the retention of the privilege for non-imprisonable offences. 
The need for reform in this area is long standing. The terms of reference were given to the Law Commission in 1989. In 1999 the commission published its report. Following from that report this bill which generally follows the recommendations of the commission is being introduced. I look forward to the bill being thoroughly considered before the Justice and Electoral Committee and the ultimate passage of this bill as the culmination of a long process of consideration of a complex but important area. I commend this bill to the House.