Parker David: Evidence Amendment Bill — First ReadingText is incorporated into the Bound VolumeParker David: Evidence Amendment Bill — First Reading[Sitting date: 02 July 2015. Volume:706;Page:5084. Text is incorporated into the Bound Volume.]Hon DAVID PARKER (Labour):I rise on behalf of the Labour Party to say that we will be supporting this bill to select committee.The Evidence Act 2006 is one of our most important pieces of legislation. Effectively it codifies much of the prior common law and sets out rules that govern fair trials. I thank the Minister Louise Upston for her speech. I thought that was a very clear exposition of the reasons for these changes that are proposed. I thought that the way in which the Minister dealt with the issues as to the alternative ways in which child witnesses can give evidence was balanced. It is a very difficult issue. We do need to stop victims and witnesses of awful crimes including children who are witnesses to terrible crimes being abused through the trial process itself.But we also need to be fair to the accused. Sometimes people are accused when they are not guilty. I think one of the fears that most people would have in any society is that they do not have the ability to properly defend themselves against allegations and they need to have a right to a fair hearing as well. The Minister was careful to say that we are trying to protect victims and in this case particularly children who may not be the victim; they may be the victim but they may also be just a witness to some other domestic violence in a household for example. The way that we are trying to protect the child witness in allowing more humane—it could be said—ways for their giving evidence but still retaining the fundamental right of the accused to question that evidence through appropriate cross-examination is I think the right balance.I am sure that there will be members of the legal profession as well as advocates for children and victims more generally and victims who will give detailed submissions as to whether the legislation gets the balance right in respect of that issue.In respect of restrictions on video-recording evidence I support those too—on the use of a video record of evidence in sexual and violent cases. As the law currently stands the lawyer who might be acting for an accused person—if that lawyer has access to and has a copy of that video then my understanding is that under existing law they probably have a duty of disclosure to their client which would put them in an invidious position. Although they might have a ratbag client—and actually lawyers quite often know that their clients are ratbags—they still face duties to their clients of openness and disclosure and to provide them with copies of what they have got. Without this legislative control allowing this the lawyer might be under a duty to give that information across even though the lawyer might think that that is not in the public interest either. So we have to make sure of course that the accused and their legal representatives have proper access to the evidence that is being used against them but none the less we should not allow that to be copied and put out there on the internet for example. So I agree with that one also.In respect of the requirements to give advance notice when an accused’s prior sexual history is going to be used as evidence against them in the case that they are giving evidence in then again I think there should be warning of that. You should not spring that upon someone. If someone’s reputation is going to be attacked—if somehow someone’s sexual history in life is going to be used as a way to undermine their assertion that they perhaps did not give consent to another sexual occurrence—then I think you should warn them. It is not to say that it will never be relevant. I struggle to see how it would be relevant often but occasionally it could be. Where it is going to be put at issue then I think that it should have to be warned of and the provisions of this bill seem wise in that regard.In respect of the privilege for plea discussions again if you are going to have full and frank discussions leading to a proper pleading then that seems to be sensible. I would say that I have a slight concern about the rise of American-like bargaining around pleading. I think that the current Solicitor-General who is responsible for the prosecutorial decisions that are made on behalf of the Crown listened carefully to some complaints that had been made to me and at least one other member of the select committee which we raised with the Solicitor-General at either the estimates or the financial reviews last year. I was very pleased that the Solicitor-General took those complaints seriously and I was satisfied by his explanations this year that he looked into them carefully and that he did not think that the accusations that were made were fair.So I accept that explanation but I do think we all have to be careful that we do not fall into the situation where because we are starting to bulk-fund prosecutorial services—we do not want there to be a financial incentive that is inappropriate to settle for pleading guilty to a lower level of charge than reflects the seriousness of the offence. We do not want that to become part of the New Zealand justice system. None the less I can see why we need full and frank plea discussions and that privilege should be attached to those discussions.In respect of previous consistent statements this bill puts the position back to where it was before the Evidence Act 2006 was enacted. In that regard large pieces of legislation like that despite the best care of this Parliament and the Law Commission do occasionally throw up things that we did not get quite right. I think it is a testament to how good the work was on the Evidence Act 2006 that there have not been many instances of that.One final thing which is not within the scope of this bill but which I would like to have seen fixed is that we still have this problem in respect of the evidence that can be gathered through search and surveillance mechanisms for the Serious Fraud Office in New Zealand. We have conferred protections on the media through the Search and Surveillance Act which was passed a couple of years ago in this House in respect of the arms of the State—other than the Serious Fraud Office but including the police which confers protections on the media. We have had problems with the media being subjected to inappropriate search and surveillance by an arm of the State—most notably the Serious Fraud Office in the National Business Review case arising out of the South Canterbury Finance controversy.I just use this opportunity to put on record that I think we are overdue for fixing that up. I know it was stubbornness on the part of then Minister Judith Collins and there is a long record of how we tried to fix that. But I still think it is an outstanding matter that I would like to see fixed because I want to protect media freedoms including against inappropriate action by the Serious Fraud Office which overall is a good office. I just think that that is a bit of law that still needs to be tidied up. With those comments I again record that the Labour Party is supporting this bill.