Fairbrother Russell: Evidence Bill — First Reading 
Fairbrother Russell: Evidence Bill — First Reading 
[Volume:625;Page:20427] 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 I have listened carefully to the speeches tonight and I think that the lawyers who have spoken have indicated that this debate will be a positive one for the Justice and Electoral Committee. Those who are familiar with the art of practising law are aware of some of the subtleties and they have been expressed tonight. 
For example in relation to the debate about truth being an absolute in the courtroom it was picked up by Dr Wayne Mapp and Judith Collins that in the criminal law where the State is the prosecutor we are really not in a battle about truth but in a power relationship. That is a valuable thing to understand because that imbalance of power underlies many of our rules on the law of evidence and most of those rules will still be carried forward in this new Evidence Bill. 
That takes me of course to the suggestion by Mr Murray Smith that this is a radical change. I do not see it as a radical change to the law of evidence; I see it as a sensible evolution in rules that have been changing gradually over time piecemeal and bit by bit both by change in the law and also by thecommon-sense development of the common law. We see the Family Court which has been applying rules of common sense when it comes to evidence for a long time despite the evidence code. We see the employment and disputes tribunals which adopt their own rules of evidence. We see the development of the criminal law on propensity; we see the development of the criminal law on documentary evidence; we see the development of the criminal law on reputation. All those matters are carried forward in this bill. Reputation is now related to the truthfulness of the witness which is an area that has been difficult in the criminal law—ill-defined and with conflicting decisions as to how the evidence of a certain witness may be attacked on the credibility or the truthfulness of that witness. Those are all dealt with in the bill and I refer particularly to clause 33 which brings a clear set of rules when assessing the reputation or reliability of witnesses whether they be for the defence or the prosecution. 
This bill expands what is a very good Law Commission report. In Part 4 the bill adds all the evidential rules relating to foreign judgments and foreign laws. Those have not been considered by the Law Commission but I think the select committee will find that their incorporation in this bill is a sensible extension of that. The bill also adds clauses 104 to 116 which deal with the present laws relating to undercover officers. That practice is well established now and it seems to be accurately reflected in the bill. 
I think this bill is a very positive advance in the practice of law and it should turn into sensible law. But I urge the select committee to make constant reference in its report to the Law Commission report so that when the courts come to consider some of the changes in the bill they can go back to Parliament to ascertain its intention and can hope that Parliament’s intention will reflect that of the Law Commission. 
The main test we have now is in clause 7(3) which defines what is relevant: “Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.” Of course clause 8 is very important and it is the current law—that a judge may exclude any evidence that is unduly prejudicial to the outcome of the proceeding or that will needlessly prolong the proceeding. 
The Law Commission I think identified the real issue here. I refer to page 3 of its report where it states: “The Code relies”—and the code is its draft code which this bill very much reflects—“on the common sense of the triers of fact and the wisdom of the judiciary who will give them guidance on how to approach the evidence in a given case.” 
I think that those who appear in court would accept as Ms Collins did when she described justice as a science that it is probably more of an art form. One can apply the rules and the evidence but the application in each case depends upon a number of factors including the competence both of counsel appearing and of the judge. It is my hope that the select committee has sufficient time to hear the evidence fully and to listen to all parties because if this debate tonight has been indicative then the report that emerges from a select committee that has sufficient time to consider the bill clause by clause will be a substantial report and one that this House can embrace with some pride. 
I conclude my remarks tonight by again going back to the Law Commission report. On page 3 at about line 10 the commission states: “The significant reform proposed by the Code will not achieve its purpose unless it is accompanied by a change in approach by practitioners and the judiciary.” Essentially the Law Commission is stating that Parliament can change new laws. But unless the law profession rises to the challenge and reads these provisions of the bill or the law that emerges from the bill and reads it with the intent and purpose; unless we have judges who are prepared to establish a new culture in the courts taking heed of some of Ms Collins’ comments about some of the terrible affidavits that are filed in the Family Court and in the lower employment jurisdictions; unless judges are prepared to give some leadership on what really is relevant and what really should be included; and unless lawyers exercise some common sense when dealing with clients—unless that is tackled—then this law will lead to greater litigation while our appellant process sorts out the problems at first instance. But if our Law Society is sufficiently re-educated and if our judges take responsibility for the culture in their courtrooms then the moving of this bill into legislation could be significant for New Zealand. I hope it is. 
Bill read a first time. 
Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee