Burton Mark: Evidence Amendment Bill — First Reading 
Burton Mark: Evidence Amendment Bill — First Reading 
[Volume:640;Page:9962] 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Evidence Amendment Bill be now read a first time. 
 As per the letter of 14 June 2007 to leaders of all parties from the Leader of the House the Hon Dr Michael Cullen I intend to move that the bill be considered by the Justice and Electoral Committee and that the committee report finally to the House on or before 22 June 2007. 
Briefly this bill deals with an amendment to the Evidence Act 2006 which was passed last year but is not yet in force. An unintentional error was made by the select committee with unintended consequences in relation to the co-conspirators rule. In broad terms the bill ensures that a common law rule commonly known as the co-conspirators rule is included in the new Evidence Act. This matter requires legislative amendment prior to the Act coming into force. I want to take this opportunity to thank members and parties generally for their indication of cooperation and facilitating the rapid progress of the bill. 
This is an important amendment as it has serious implications for criminal trials involving multiple accused and evidence obtained by interception of communications. These cases generally involve major drug-dealing organised criminal enterprises or serious violent offending. These types of multi-defendant trials are costly lengthy follow from resource-intensive investigations and often have a high profile. It is therefore important that the common law is maintained. 
The co-conspirators rule has particular impact in respect of section 27 of the Act which deals with defendants’ statements offered by the prosecution. This section incorporates the common law into statute by providing that a defendant’s statement is admissible against him or her but is not admissible against a co-defendant in the proceeding. There are three common law exceptions to this rule that are not included in the Act. The first two are collectively known as the co-conspirators rule. These rules provide in the case of conspiracy that the statements or acts of one conspirator that are said or done in furtherance of a common design are admissible in evidence against another conspirator. The second exception provides that although a conspiracy is not charged if there are two or more persons engaged in a joint criminal enterprise the statements or acts of one that were said or done in furtherance of a common design are admissible in evidence against the others involved in the joint criminal exercise. 
As stated above the application of the co-conspirators rule at common law is broader than just co-defendants. It also applies if the co-conspirators or persons involved in joint criminal enterprises are not co-defendants—for example if one or more members of the conspiracy had pleaded guilty or there are separate trials where there will not be a co-defendant but the prosecution may still want to offer the evidence of what that person actually said. The common law allows such evidence to be admissible. 
So the bill captures this by inserting new section 12A in clause 5 into the Act. That new section states: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” An amendment only to section 27 might mean that the rule was inadvertently narrow and would cover only cases where the co-conspirators or persons involved in joint criminal enterprises are also co-defendants. The amendment to create new section 12A means that all aspects of the common law are in fact captured. 
There is a third common law exception to the rule that a defendant’s statement is admissible against him or her but is not admissible against a co-defendant in the proceeding. This is where the co-accused by his or her words or conduct accepts the truth of the statement made by the defendant. The bill incorporates this common law exception into the Act by way of an amendment to section 27. 
The original Evidence Bill was based on the Law Commission’s draft evidence code and changed the common law to provide that if a defendant’s statement offered by the prosecution was admissible it was admissible against the defendant and any co-defendant. Amendments were made to the Evidence Bill by the select committee to retain the current law. The committee’s report to Parliament reflects that intention and states: “We recommend that section 27 be amended so that a defendant’s statement would be inadmissible against a co-defendant in a joint criminal trial. A statement made by a defendant would be admissible only against the defendant. This would maintain the current law relating to statements by co-defendants. In our view the admission of such a statement against a co-defendant would unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and the complexity of many joint trials.” 
Although the select committee intended to maintain the current law it did not include the common law exceptions to the general rule. Accordingly consistent with the committee’s intent this bill amends the Act to include the common law exceptions in the Act. I commend the bill to the House.