Fairbrother Russell: Evidence Amendment Bill — First Reading 
Fairbrother Russell: Evidence Amendment Bill — First Reading 
[Volume:640;Page:9965] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I rise to speak in support of the Evidence Amendment Bill and to pick up on some of the points made by my learned friend Simon Power who has just taken his seat. I accept that the error we are amending was a mistake by the Justice and Electoral Committee. It is one that I do not think any of us takes any pride in but we do find some excuse in the difficulties inherent in codifying what is a notoriously complex area of law.  
The subcommittee had before it the full bench of the Supreme Court. We had the Legislation Advisory Committee. We had an expert former High Court judge and a well-regarded academic who advised us continually. We had advice from some very good officials who worked diligently and we had submissions from both the Law Society and the Criminal Bar Association of New Zealand among many other helpful and constructive submissions. 
The point we are now rectifying was entirely overlooked. It was probably overlooked because the committee considered very seriously the amendment proposed by the Law Commission and was easily persuaded in the end—as nearly all the submitters and the officials advising us appeared to be—that the Law Commission recommendation went one step too far in allowing statements made by an accused in a trial to be used against a joint accused when the maker of that statement did not give evidence. The reason we decided that was that the inherent requirement of fairness requires an accused person to have the ability to challenge a statement that makes him or her look complicit in an offence on the basis of fairness and other overbearing procedures. 
Of course if an accused is not present then he or she lacks the ability to challenge such a statement and two consequences could occur. One an innocent person could be wrongly convicted on a wilfully misleading statement by a co-accused or two trials could become unnecessarily complex as accused troubled by a co-accused’s statement sought to challenge it by all sorts of means that really amount to a fishing expedition. It was on this point that the committee was unanimous in deciding to rein in the Law Commission’s recommendation but it certainly did not intend to abridge the common law as it related to conspirators and joint criminal enterprises. 
The concern that I have is twofold and I hope the select committee will have time to look at it—I am sure it will because this is a small bill. One clause 6 amends section 27(1) and on the face of it—and I have seen this part of the bill only this afternoon—seems to go exactly to the problem the subcommittee was concerned to avoid as were our advisers and as were most of the submissions received by the committee particularly from lawyers and legal academics. The problem is the old rule that a statement by a co-accused is not evidence in court against any other accused unless that co-accused gives evidence from the dock and can be cross-examined by those accused. If clause 6 of this bill has the effect of undermining that then I hope the select committee will address that issue. From my discussions with the Minister the impression I have is that it is not the intention of the Government to by a side wind widen section 27 as it appears to me to be on first reading. Therefore I expect the subcommittee to take a sensible approach to this and to achieve the Government’s aims which are really to bring the law as it relates to conspirators and to joint enterprises into the Evidence Act by way of this amendment. 
It is important to keep clear what the law is for conspirators and joint enterprise. First of all a conspiracy or a joint enterprise must be established before a co-accused statement can be used as part of it. It can only be used as furtherance of that established conspiracy or to define the members of it. It cannot be used in fact to define the conspiracy. I interjected during Mr Power’s speech because he seemed to be suggesting that in any joint trial this amendment will allow all statements to be used. Of course that is the Rubicon across which we on the subcommittee did not wish to cross and I believe the Government is similarly in that position. 
The other aspect of concern I have is that we were careful to endeavour to codify the common law in the Evidence Act. Although the Evidence Act refers to the common law from time to time it is done so within the principles section section 6. One of the important things is to try to make the law of evidence accessible to lay people. Paragraph (f) of the principles section refers to the ease with which the law is available to the readers of the law. Of course if we are going to make broad reference to the common law we therefore defeat that purpose in section 6(f) of the Evidence Act. 
I agree that this bill should quickly go through so that when the Evidence Act comes into operation on 1 August it is complete. I agree that urgency of attention to it by the subcommittee is required. But I hope that members of the subcommittee can also set their minds to codifying the common law principles which the Minister Mark Burton has outlined in his speech. As put by him they are very clear and very succinct. The difficulty of common law is that it is never quite as clear and succinct as those who make statements on their feet in advocacy of a particular purpose. One of the beauties of the common law is that it is never ending and one can spend one’s whole life in trying to understand it and achieve much satisfaction and joy in the process—and also much social isolation. But it is possible to codify and we have endeavoured to do that in the subcommittee. I believe that the Justice and Electoral Committee must have the ability and the resources to attempt to codify what is contained in clause 5 which is the new section 12A of the Evidence Act. I commend the subcommittee to that aim. 
Using this amendment to invoke the common law really has by a side wind the effect of encouraging judges to go where they would naturally want to on many occasions: to the common law rather than to the statute. Underpinning the Evidence Act is the concept of fairness and the availability of almost any evidence on the basis of relevance and fairness and unfairness—they are the key tests. If we bring in the common law against the new principles in the law we have the risk of by a side wind expanding the Evidence Act into an area we tried to avoid by codifying it as far as we did. I stress again to the House the importance of the Justice and Electoral Committee looking at clause 5—and of course clause 6 but clause 5 particularly—to see whether it is not possible to codify that which we failed to do when the subcommittee was looking at the original bill. 
I can assure the House that if the minds of the members of the subcommittee had been drawn to this defect—and I accept it is a defect—we would have addressed the issue and we would have come up with an adequate codification to enable trials for conspirators and persons alleged to be involved in joint criminal enterprises to take place using the tools of the common law and using statements of co-accused made out of court to establish the membership of those conspiracies or joint criminal enterprises or what was done in furtherance of those aims. This is a particular exception to the hearsay rule and the use of statements of co-accused and I hope the subcommittee will have regard to that and keep the debate and the amendment within those very narrow and precise confines. 
I commend the Government on picking up this oversight. I noted an article by an academic about 2 months ago that signalled this defect and I think the Government is to be commended for dealing with this with alacrity. I hope the subcommittee can do likewise and can come out with a more perfect product than we produced on first flight.