Evidence Amendment Bill — Second ReadingText is incorporated into the Bound VolumeEvidence Amendment Bill — Second Reading[Sitting date: 09 June 2016. Volume:714;Page:11866. Text is incorporated into the Bound Volume.]Evidence Amendment BillSecond ReadingHon SIMON BRIDGES (Associate Minister of Justice) on behalf of theMinister of Justice: I move That the Evidence Amendment Bill be now read a second time. This bill is about making sure that the Evidence Act works as well as possible for the benefit of everyone involved in court processes. Its key changes focus on improving the experience of vulnerable witnesses who give evidence. Minimising the trauma that can result from helping to bring offenders to justice is an essential part of the Government’s commitment to supporting victims of crime.Mr SPEAKER: Order! I am sorry to interrupt the Minister. Can Ministers if they want to have a talk—[Interruption] Sorry the Minister is delivering an important speech; he deserves some courtesy.Hon SIMON BRIDGES: The bill also makes a number of amendments to keep the Evidence Act up to date and workable in practice as recommended by the Law Commission in its 2013 review of the Act. The passing of the Act in 2006 represented a near full codification of evidence laws which were previously found in various places across the statute book and case law. The review and resultant amendments in this bill are valuable measures to take to ensure the Act operates appropriately and as intended. At this point I would like to thank the Law Commission again for its work on the review.This bill has been considered by the Justice and Electoral Committee which has recommended a number of sensible amendments that I support in full. I thank the members of the committee for their thorough consideration of what is quite a technical area of law. I understand that 12 submissions were received and the resulting tweaks have I think strengthened the bill.One of the key amendments in the bill is the new presumption that child witnesses will give their evidence in alternative ways. This means that rather than having to face lots of strangers in court when telling their story children will give their evidence through a pre-recorded interview via closed-circuit television or from behind a screen in the courtroom. In the 2014-15 year around 465 child witnesses gave evidence in criminal courts around the country. Studies have documented the damaging effects on children of giving evidence in the traditional way and how alternative methods of eliciting evidence such as those provided for in this bill can alleviate some of that stress. Ensuring that children avoid the more confrontational aspects of the courtroom wherever possible can also result in better-quality evidence.The new presumption will ensure that the courts’ general practice which is to receive children’s evidence by alternative means is applied consistently across the country for all children in all criminal cases. It is also important to note that the bill allows for exceptions to be made by the judge in recognition of the particular circumstances of the case and the needs of the child. A further amendment targeted specifically to children in the court process will afford all child witnesses the automatic right to a support person while giving evidence. Under the current Act only child complainants have this automatic right. The amendment will again help to reduce the traumatic effects of having to give evidence in a foreign and sometimes intimidating environment for all children participating in the court process.Both child complainants and witnesses in sexual and violence cases will benefit from another of the amendments in the bill. When their evidence is recorded on video to be used in court there will be new safeguards in place to ensure that those videos are not used inappropriately and do not fall into the wrong hands. Taking these steps is important to preserve victims’ confidence in the justice system in light of the quite devastating effects that could result from such a video surfacing on the internet for example. The changes mean that defence counsel will no longer receive a copy of these sensitive videos as of right. They will still be able to view the video at premises agreed to by the police and will still automatically receive a transcript. As well as these provisions the ability to apply to the court for permission to have a copy of the video will ensure adequate access to the video for conducting the defence. The bill also introduces new offences for those who possess copy show or supply a video record of evidence outside of what is permitted by statute or regulations.I understand that some of the Justice and Electoral Committee’s recommendations have furthered and strengthened the intent of these amendments around video records of evidence. I think they continue to strike an appropriate balance between protecting vulnerable witnesses and preserving defendants’ fair trial rights. Another of the bill’s key provisions will make changes to the procedure for cases involving sexual violence which although vastly unreported are entering our justice system at a rate of around 1200 per year. By the time they get to court complainants in sexual violence cases will have already taken many steps involving great courage to bring their attackers to justice. These steps are not without cost to themselves and I know that it will always be extremely difficult to tell anyone about being a victim of sexual offending. One thing that we can do is try to make sure that after taking those steps complainants can be as prepared as possible for what will happen at trial.Under the current law any party wanting to introduce evidence about a complainant’s sexual history with a person other than the defendant must apply to the court for permission. The court may allow that evidence only if it would be contrary to the interests of justice not to do so. However this permission can be sought at any time during the trial. What this bill does is introduce a requirement that permission must be sought prior to the start of the trial. This will ensure that complainants know what to expect in advance of giving evidence which will assist to reduce further trauma and re-victimisation of that process.This change was recommended by the Law Commission and was included in the introduced version of the bill in very similar terms. I note that the select committee has made some sensible changes to the provision to ensure that the intent of the amendment is carried through without adding unnecessary steps to the pre-trial process.As I have mentioned the other changes in this bill follow from the Law Commission’s amendments in its report on the Evidence Act in 2013. That review found the Act to be meeting its objectives and generally working well. It did suggest a number of minor or technical amendments to reflect modern practice and precedent and to ensure all provisions of the Act are working as intended. With a few amendments to make sure that the law is as clear as possible the bill progresses all but one of the Law Commission’s recommendations. Worth noting are the changes around when a witness’s out-of-court statement can be used in court to support their testimony.Under the bill more types of previous consistent statement will be explicitly admissible in court. The fact of a complaint having been made will be able to be used as evidence as will a witness statement if it makes up an integral part of the events in question. Explicitly allowing these types of evidence will mean that witnesses can give their evidence in a way that makes more sense.Another notable technical change expressly provides that plea discussions are privileged. In criminal cases plea discussions are increasingly common. Applying privilege will allow these discussions to be more effective and will encourage the more efficient disposal of cases. Exceptions to the privilege mean that where the court orders the contents of plea discussions may still be disclosed in the interests of justice.A criminal process needs to run smoothly efficiently and fairly. By improving the court process for vulnerable witnesses and ensuring our laws of evidence are fit for purpose the Evidence Amendment Bill makes some really important changes to achieve those results. I commend this bill to the House.Hon DAVID PARKER (Labour): The Labour Party supports the Evidence Amendment Bill. Can I thank the Justice and Electoral Committee for the work that it has done. Can I also place on record that I think that this is an area that Amy Adams is doing good work in. I do think she genuinely has concerns about the levels of violence—particularly against women—in society and she is determined in her period as Minister of Justice to try to change the settings in a way that brings more of these instances to court for resolution but also deals with these matters in other ways so that we have a reduction in the level of violence against women and children in New Zealand. I commend her for doing that. I am sure were it a Labour member in that office they would be similarly motivated to improve this problem that we have in New Zealand.I for one do not accept that all of the increase that we have in domestic violence shown by our statistics is caused by additional reporting. I think we have got a long enough history of being able to report domestic violence in New Zealand to actually have to face the uncomfortable conclusion that in New Zealand in recent decades we have had increasing rates of violence against women and children and I think that shows up now in the statistics. I do not accept the proposition that the terrible statistics that we now have in relation to domestic violence and violence against children are because it is being reported properly. I think that is part of the situation but I also think it is partly because we do have an appalling record in respect of those issues in New Zealand. Indeed there are so many ways in which New Zealand can hold its head high in respect of outcomes be they socio-economic or environmental compared with other parts of the world—but in terms of our record of violence against children we do have a terrible record. So I support the changes that are being made in respect of evidence particularly in trials relating to sexual violence and I think the proposals that are made by the bill here are proper.I want to highlight one issue that has been picked up by the select committee and that relates to what care we have to take when it comes to the admissibility of hearsay evidence. It is very easy for us in this Parliament to say “Oh we’ve just got to make things easier for the prosecution in order to get convictions.” but we must always guard against injustice. In the legal system in New Zealand and indeed in all of the countries that have followed the Westminster model—and in countries like the United States which I suppose broadly is based on that model albeit going back some centuries further and it has departed from it a little bit more—we say that it is better that a guilty person goes free than an innocent person be found guilty. That is essentially why we have a higher standard of proof in criminal proceedings which have to be proved beyond reasonable doubt compared with civil prosecutions because a criminal prosecution can end with a stain on a person’s reputation and in serious cases the loss of their liberty. It can effectively ruin their lives if they are found guilty wrongly.I am sure there are some limited cases in New Zealand where people are found guilty when they are innocent but more often we have people who are guilty found innocent. And that is where the balance should lie because we should in Western societies be holding firm to this principle. We have got to be very very sure before we impose the coercive powers of the State to penalise people who have been found guilty of crimes.Where does the rule against hearsay fit into that? Well there are some very sound rules of evidence that make sure that prosecutions against people are soundly based rather than just assertion. One of those rules is the best evidence rule: that is a rule where effectively the courts say that the evidence that they will hear in order to convict someone of a crime—and it is actually the same in this respect in civil proceedings as well—the evidence to be tendered is the best evidence that is available. So if there is a secondary source of evidence that is not as good as primary evidence then the court ought not to hear the secondary evidence; it ought to hear the primary evidence.The rule against hearsay is in some ways a subset of the best evidence rule. It says that where there is primary evidence we should hear it and we should not just hear someone giving hearsay evidence of what someone else might have said. There are a number of reasons for that. One is the best evidence rule as I have said. It is also very hard for an accused—or a judge for that matter—to be sure that hearsay evidence is true because the person who is giving the evidence about what they heard did not witness the original event and therefore cannot be challenged as to the details of that evidence or as to the demeanour of the person who was there because they were not there.There are some exceptions to the rule against hearsay and they are practical and they are necessary. For example in respect of a statement that is made by someone before death—and they are no longer alive at the time of a prosecution—obviously they cannot be there to give evidence so there are some limited exceptions to the rule against hearsay in respect of statements of people who are dead. Therefore the best evidence of that dead person is never going to be available to the court and the court will in some instances hear hearsay evidence as to what the deceased person said prior to their death. We can understand that. That is still the best evidence available. Obviously it would not be as good as the original evidence but I am sure that courts and judges can give appropriate warnings to juries in respect of the limitations of that evidence.There are also exceptions relating to business records. This Evidence Amendment Bill tried to make that clearer by saying that where there are standard business records then those business records can be admitted without further first-party proof that they are correct and they can just be admitted as being evidence of what they show rather than there having to be some primary evidence tendered to prove that they are correct. That was another exception to the rule against hearsay.An amendment brought forward by this legislation tried to clear that up but as the select committee found no doubt on the basis of submissions probably from the Law Society—and if it was from the Law Society or the Criminal Bar Association of New Zealand can I thank them for their submission; I expect it was—there was a definition issue. I was not sitting on the select committee but you know as a member of that profession who pays my annual practising fee I am really so pleased that the Law Society coordinates this. Actually those people who make those submissions are not paid but the Law Society does a fantastic service to New Zealand when it gets into the detail of these things. It pointed out that the definition of what was a “business record” was so broad as to possibly include some police statements that ought not to be admissible as a business record as an exception to the rule against hearsay. In respect of that sort of evidence it ought to be provided by the police in accordance with the best evidence rule and not be an exception to the rule against hearsay.So the select committee identified that as a problem with the bill as introduced to the House. I think that the select committee has fixed it by the amendment to clause 7 of the bill which rewords the definition of “business record” in section 16(1) of the Evidence Act to say that this exception “does not include a Police record that contains any statement of interview by or with an eyewitness or a complainant or any other person who purports to have knowledge or information about the circumstances of alleged offending or the issues in dispute in a civil proceeding.” It has made it clear that a witness statement that a policeman takes down cannot be tendered in evidence because that witness statement is effectively a hearsay report by the policeman of what they heard the witness say to them. In that situation we should have the witness before the court giving primary evidence not a police record which is hearsay.JACQUI DEAN (National—Waitaki): Thanks to the member David Parker who previously spoke on the admissibility of hearsay evidence which is one of the matters contained in the bill. He is quite right; there are some changes around that but this bill contains a number of other measures and those measures continue with this Government’s focus on putting victims at the heart and the centre of our justice system. I acknowledge the member who also noted this: that along with a focus on the victim we are also making improvements to efficiency and the accessibility to our justice system because access to justice is one of the strong tenets of New Zealand’s justice system.It is pleasing to see not only that the Justice and Electoral Committee worked very cooperatively on this bill in particular but that the Justice and Electoral Committee is a committee that works with a focus on the issues at hand. We tend to traverse and make our way through those issues where we disagree and try to find a way that we can present back to the House a bill that reflects what is good in the intention of the bill at hand. In this case it is the Evidence Amendment Bill.The select committee did make a few changes to the bill. Really just a minor change or minor in terms of the debate is the change to the commencement date which will allow time for regulations to be made before the bill comes into force. It is a topic of some argument amongst select committees these days around how many regulations there should be or whether really they should be in the primary legislation. It is my view that sometimes regulations are best dealt with and we get a better result if they are dealt with after the legislation has been passed. I believe this is one of those examples.We also recommended a number of technical changes to clarify definitions and phrases to provide some consistency not only within the Evidence Amendment Bill but also between this bill and other Acts. What we are also coming up against is terminology. In some pieces of legislation a person under the age of 16 is a child; in other pieces of legislation a person under 16 is referred to as a person or by some other term. That clarity in legislation is very important.This bill will give child witnesses the right to a support person while giving evidence. That is a change. It will not have to be done on application to the court; it will be a presumption that a child will get a support person when giving evidence and also presumptive will be the ability to have alternate ways of giving evidence. The reason for that is very simple. The reason for that is well accepted and well supported around the House and I do not think we would find a single person in New Zealand who could disagree with the premise that these measures will go a long way towards helping reduce anxiety and helping reduce stress on children. It will enable them to give better testimony and enable them to be better witnesses. I think that if we get not only a better result for the child witness but also a better result coming out of the court then this is a good measure on every level.We are also placing restrictions on video record evidence—tightening up on who can see the video evidence and to whom it is available—and a notice requirement around evidence of previous sexual history. Once again this is a measure that puts on notice that if previous sexual history is to be raised in the court then that is done with some warning to the witness.The bill will also allow more previous consistent statements to be admissible in court and that is to enable a more complete story for the jury. I think the previous speaker spoke at length around this issue. It is one point in quite a comprehensive bill. We do have further readings; I do have more to contribute but I commend the bill to the House.DAVID SHEARER (Labour—Mt Albert): As David Parker mentioned before Labour is supporting this bill and actually is supporting it with some enthusiasm because I think it is a very good bill and well needed at the moment.The Evidence Amendment Bill first came into being in 2006. It was the product of about 10 years of investigation and research by the Law Commission. It was brought in under the Labour Government and I think supported by the National Party at the time. This bill is 10 years further down the track and looks to tweak amend and improve some of the issues that perhaps were not as relevant at the time or certainly did not gain the attention of people at the time but have become issues over the course of those last 10 years and are now being sought to be redressed.The member who just sat down Jacqui Dean went through some of those changes. David Parker looked at the issues around consistent statements which will be more admissible under this piece of legislation—it will improve the workings of the court. I should say perhaps before getting into the detail of the bill that the Evidence Act itself is really at the cornerstone of our ability to conduct a fair trial. It really sets out what is admissible what is not and the behaviour with which lawyers should hold themselves within a court so that the people who are in front of the court get a fair trial. The witnesses and those people who are the alleged victims are also given a fair go as well. The changes to this bill are varied and will improve the ability of the courts to conduct themselves and see that evidence through so that people are actually able to get a fair trial and it is made easier for people giving evidence.As I was saying before the Hon David Parker talked about how enabling consistent statements to be admissible in the court makes that easier. It enables privileges for plea discussions to happen and makes that happen more easily where that is appropriate. That will enable the case to go before a court and be heard more easily.What the attention has been focused on is the way in which the victims and witnesses in crimes of a domestic violence or sexual nature are able to give evidence particularly those crimes that affect children. Unfortunately this is really long overdue. New Zealand has one of the worst records when it comes to child abuse and child deaths in the OECD. In fact we are fifth from the bottom out of 31 OECD countries. It is not a record that we should be in any way proud of. In fact it is a disgrace. One child is killed every 5 weeks in New Zealand and 90 percent of those deaths occur through somebody whom they know and generally somebody whom they know very well. Domestic violence is also one of the worst in the OECD. Again it is a pretty terrible record. On average we kill 13 women 10 men and about nine children every year.These are shocking statistics. Part of dealing with that is making sure that those who perpetrate these crimes are actually brought through the justice system and that we are able to make sure that they are punished through our court system. That means giving the victims and the witnesses to those crimes the ability to give evidence in a way that does not prejudice or affect or further traumatise them as well. By the same token the people who are the defendants in these cases who are in the court deserve a fair trial—like anybody does and like our court system demands that we have.So at the same time we are not changing dramatically the way in which evidence is able to be considered; we are simply looking at the means and the methods by which that evidence is able to be given by child victims or women who have perhaps been sexually assaulted for example and being able to do that in way where they are not further traumatised by the experience of having to go through that court system and be cross-examined.There was a case not so long ago of Mark Lyon who was a businessman a drug dealer and who was eventually convicted and sentenced to a number of years in jail for his sexual assaults on girls as young as 14. The father of one of those victims said that the changes that have been put forward today would have made a world of difference to his daughter and for frightened children knowing that they did not have to go into an adversarial courtroom. He went on to say that his daughter was shown through the court and although Mark Lyon was on the other side of a screen she was aware that he who had preyed on her was there and watching everything that she was doing. It terrified her—the fact that she had to give evidence in front of him.This bill as the previous speaker Jacqui Dean has just said enables the evidence to be given by both the victim and the witness through the means of video rather than them having to be there physically present in court. It does not mean they cannot be cross-examined or that the defence counsel cannot ask questions of them but some of those questions can be asked through closed-circuit television rather than directly in person in the court in front of a bunch of strangers in front of their alleged attackers and abusers and with them therefore becoming in a sense re-traumatised as a result of having to do that.I think this piece of legislation—there are other parts to it as well but in many ways I think that is the most critical part. In New Zealand where we have such a deplorable and an appalling record of domestic violence and sexual violence against children and women right across our society this bill will give at least some comfort to those who want to go to court and to go to trial in order to be able to give evidence and to make sure that the perpetrators of these crimes are actually taken before the courts with the possibility they will be prosecuted and sent to prison and punished. It will make their job not only easier when they are there but might encourage them to actually get to court and make sure that those people who have perpetrated these crimes are punished.I am sure that a lot of times now many crimes that have been committed are not making it into court because of the way in which the court deals or can deal with those victims. If that is the outcome of this amendment to the Evidence Act then I think it will have done a very good job. Once again like others I commend not only this bill but also the Government for bringing it forward. Thank you.JONO NAYLOR (National): Can I just say what a pleasure it is to see a bill of this nature getting such widespread support from around the House. I think issues like these really are beyond party politics; they are about having a good and decent society they are about ensuring we have a fair and equitable justice system and those things go beyond party politics.For any judicial system to work well to me it needs to have three factors really: it needs to be just it needs to be timely and it must not revictimise victims—or I guess alleged victims—who have experienced particularly traumatic events. This bill I think goes a long way particularly in respect of the second and third parts of it. I think we already have a pretty just system but the bill helps to make things more timely in the way they are resolved through the court system and also and most importantly it ensures victims of particularly heinous crimes are not revictimised. This is a part of this Government’s work across a number of other pieces of legislation whether it be through the offender levy or through the victims’ rights amendment legislation that we have seen going through earlier as part of our efforts to ensure we are making a better justice system and I commend the work Amy Adams is doing with regard to this.I want to focus in particular my contribution around the presumption of children and young people being able to give video evidence. That has always been something that has been available as an option but I think what is particularly important in this legislation is the presumption that that will occur. I think that is critically important as David Shearer has just outlined and will encourage I believe more victims to come forward because they will be able to know up front that there is this presumption they will be able to deliver their evidence on video and not have to do it within the court setting or otherwise. It also enables them to have a support person with them while they are presenting their evidence.I think that is really really critical. We have got to make sure we really look after victims across all types of crime but in particular in these types of circumstances that we have been discussing this afternoon it is critically important that children and young people who have suffered really quite horrendous and devastating things are able to be supported and are able to be protected through this presumption that they will have video-record evidence.I think there is something else that is critical which came through when we were talking about this at the Justice and Electoral Committee. In particular I want to just acknowledge clause 30 of the bill where it talks about how “a party or their lawyer is not entitled to be given a copy …”. I think that is one of the things we have got to make sure of—that victims can have confidence that this video evidence they have given is not going to be passed around that it is not going to be open and available either to the person who has perpetrated the crime or otherwise or other people. People are going to be disclosing in this type of evidence very personal very traumatic events and it is critical they have confidence in a system that ensures that video evidence is protected. So there are provisions within this bill to ensure that occurs.Going through the select committee process we received a wide range of submissions and I think they have helped us to make a few minor amendments that will I believe strengthen the bill. It is a good bill. It will help us to ensure we have a good justice system going forward. It improves on what we have already got going on and as I have said a couple of times already it will ensure we are doing the utmost that we can to protect victims. I commend it to the House.DAVID CLENDON (Green): It is a pleasure to continuethe agreeable tone of this debate which Mr Naylor referred to on behalf of the Greens. This is a good bill; the Greens have supported it and will continue to do so. It does some useful and necessary and indeed some important things around the giving of evidence and other court processes so we will continue to support it.The bill of course amends the Evidence Act 2006 which in itself was quite new 10 years ago. It did some different and interesting things and after 5 years it was deemed appropriate that it should be reviewed to ensure it was doing the best it could which of course triggered the Law Commission review including a document published in 2013. Much of the content of this bill of course does reflect the recommendations brought by the Law Commission. In a sense it is odd—the commission came back with a general statement that the 2006 Act was in pretty good shape that it was quite a fit-for-purpose piece of legislation but then went on to propose 33 amendments to it. They might be contrary statements in one view.Of course many of those 33 recommendations were for so-called technical and minor amendments which is not to say they are unimportant. The chair of the Justice and Electoral Committee commented on the issue of consistency which is particularly important both within pieces of legislation and between pieces of legislation. It is important we get consistency of definition and the like. So although many of the recommendations were deemed minor and technical that is not to say they are unimportant. It is good to see them being enacted within this new legislation.Some of the more substantial changes or additions the committee has made are as has been said around protecting and indeed enhancing the well-being of vulnerable people who often through no wish of their own are obliged to be before the courts. Children and complainants in cases where there is alleged sexual violence or violence of other forms are people who deserve the best safest and most secure environment we can give them when they are obliged to enter the court. The changes in this bill go some way towards achieving that.I will speak briefly to a couple of those. One is that as has been mentioned the legislation will now contain the presumption that a child giving evidence in a court as a witness will be expected to use so-called alternative means. A child is defined as a person under the age of 18. We heard an example from Mr Shearer in his contribution of when a young person was put in a pretty horrific situation by being obliged to be in the same room as a person who that young person believed had done them serious and significant harm.The provisions of this bill will create the presumption that the child will not be put in that situation but also allows for exceptions to that when it is deemed by the judge that it is OK for that young person. You might have a confident 17-year-old who is entirely capable and willing to stand in a court and say their piece. So this bill does not block that possibility but it does put the onus on that being the exception rather than the rule and that is a good thing. We have various technical means of achieving that; there is no challenge about that be it using video or other forms of recording technology or simply screens. It is timely that we do this.The one other significant change in this bill is that it changes the circumstances around the court hearing evidence about a person’s previous sexual history particularly a complainant’s. Sadly there have been too many instances over the years when women particularly in this situation have suffered very aggressive questioning which frankly has been designed to shame them to ruin their reputation and to present them as being promiscuous. This is a very ugly way to have our conduct happening in our courts and this bill will go some way towards diffusing that. Any reference to a complainant’s former sexual history will need to be notified in advance its relevance will need to be demonstrated—that it is appropriate that it ought to come to the court and obviously any complainant will then have the opportunity to develop some response to that. Again it does not exclude that sort of line of questioning but it certainly shall we say creates a little bit of decency around it perhaps if that is the right word.Finally the point has been made also that in the situation when evidence is given on video there is no as-of-right access to that video recording or evidence by any party to the proceedings. A case needs to be made that access to the video or the other recording is necessary and important. Obviously it is important in the general flow of our justice system that all parties to a hearing should have access to all the information that is applicable to it but there are ways of getting around that. I think taking away the as-of-right nature that anybody involved might have access to what may well be video or information that is of a very personal nature—that does again require the approval of the judge to say it is appropriate for that person or that party to have access to it and then there are significant constraints about what can be done with that. It is about protecting privacy; it is about people’s well-being. It does however avoid the risk of any evidence or even the appearance of any evidence being suppressed.With those few words I think I will leave it to my colleague who will be speaking later to make further comments on behalf of the Greens but for the moment we are happy to support this legislation.DENIS O’ROURKE (NZ First): New Zealand First will continue to support this bill which implements almost all of the Law Commission’s recommendations—and of course the Associate Minister of Justice Simon Bridges has already reviewed the main changes in the bill. So what I want to do is focus on four of the improvements made by the Justice and Electoral Committee and why I think in particular they should be supported. I would just like to begin by commending the Justice and Electoral Committee for the work it did. I think that it went through the bill very well and it was a great pleasure to be part of it.The first improvement that I want to focus on relates to hearsay statements and to section 16 of the Evidence Act. There are types of police records that as we know are not inherently reliable and in the current Act they should be excluded rather from the definition of the term “business record” in section 16. The reason for that is that hearsay statements made by witnesses or comments made by them in interviews—by people who say that they have important knowledge to contribute—are not inherently reliable and ought to be excluded because reliability is absolutely vital and fundamental. So I think that is an important improvement that the committee has made to the bill and one that deserves to be supported.The second one relates to clause 30 which amends section 106 and the need to prevent the misuse of video records. The Justice and Electoral Committee has made some important improvements to clarify the Act on this matter. There are two of them that I want to mention. The first one amends section 106 to clearly specify the duties and restrictions relating to those video records that parties and lawyers have access to. What the amendment will do is ensure that defendants and their lawyers are still able to view video records and to determine whether to oppose or not what is in them. But they are now able to do so in an appropriate way and in an appropriate place. That is a significant improvement and it is very important that access to those video records is available but there needs to be the protection that it is done in an appropriate way and in an appropriate place. I think now we have that balance correct as a result of this particular amendment.In addition to that and secondly in relation to this matter the committee recommended that it is important that regulations should be made and that there should be provision to make regulations to cover the various ways in which all of this will operate. So that is also included in the improvements. It is a minor point but I think in itself it is still very important.The third improvement that I want to focus on is the difficult area of children giving evidence. As Mr Clendon pointed out this actually means people under the age of 18—so they are not necessarily infantile. Some of them may be able to give evidence in the ordinary way and others will not be able to do so. What we have currently is a situation that does not reflect that. The improvements to section 107 inserted by clause 32 do give effect to the presumption that a child witness does need to give evidence in alternative ways—that is an infant I mean—while at the same time ensuring that the defendant in particular but also the judge jury and other parties can hear the evidence given and will be able to understand it.As the law stands a party other than the party intending to call the child witness may apply to the judge for a direction that the child is to give evidence in the ordinary way. But that is not quite enough. So what this improvement does is to amend section 107 via clause 32 so that it will allow a party other than the party calling the child witness to apply to the court for a direction that the witness can give evidence in the ordinary way or alternatively in the alternative way. So that reflects the need to cater for both those witnesses who are capable of giving evidence in the ordinary way and those witnesses who really need to use the alternative methodologies. That again is a fairly minor but I think quite an important improvement that is being made to the bill.The fourth and last improvement that I want to focus on is I think the most important one. We heard a submission from a particular person whose name I will not mention. I felt it had particular relevance and I think the committee did as well. I felt that that submission was quite compelling in demonstrating what can happen to a person if we do not get the law right in these respects. What I am particularly referring to is access to video records of evidence outside Criminal or Family Court cases. The truth is that some bodies—tribunals and so on—do have powers quite outside this legislation to call for and consider video evidence but are not subject to the regime that is actually prescribed by this Act in regulations and injustices can flow from that.The recommendations that were made and that I am sure will be adopted by the Justice and Electoral Committee will ensure a clear and broadly uniform regulatory approach to prevent the misuse of those records. I am sure that by inserting in new clause 33A which inserts new sections 119A and 119B the requirement that police would be prohibited from releasing a video record of evidence to parties to proceedings outside Criminal or Family Courts unless the relevant body orders it is most appropriate. I think it will operate to avoid the sorts of injustices to which that particular submitter had been subjected and which can cause significant problems to such a person particularly for their future employment prospects and so on. Again it is a relatively minor improvement in itself but it can have very important effects. I think it needs to be mentioned as a particular improvement recommended by the committee that really needs to be supported and I am sure it will be.In addition to that the amendment inserted by new clause 33A will provide that the body concerned may order the release of the video record only if it would not jeopardise any pending criminal trial and that it is in the interests of justice to do so. So I think that again we have here a balance: the balance being the need to protect individuals where for example the police release this sort of information in a way that can be damaging to an individual and that individual has no way of effectively preventing that damage from happening and on the other hand the need for such information to be available if it is in the interests of justice to do so. So I think again the balance has been achieved there.Overall I think that as I have said the Justice and Electoral Committee has done a very good job in reviewing this particular bill identifying some of the issues with it that needed to be corrected and it has then made some very sensible and worthwhile—perhaps minor in themselves but nevertheless very important—improvements to the bill and we will get a good piece of legislation as a result. New Zealand First will be very happy on that basis to continue to support it.CHRIS BISHOP (National): This is a very important piece of legislation and people listening on the radio or watching on Parliament TV this afternoon may not appreciate the significance of the codification of the Evidence Act in 2006. It drew together the various strands from the common law and common law rules and various other parts of statutes and codified the law relating to evidence. Evidence law is actually of paramount importance in our justice system and to the rule of law because it governs the way in which things can be put before the courts in trials. It is of huge significance.The Evidence Act in 2006 was a big step forward because as I say it did codify that and it allowed people to go to a particular Act on the statute book and identify all of the various rules and all of the various things that they had to do in trials. Of course one might well make the criticism that it is all very well to say you can go to a particular Act but of course the terms of art that are within that Act are based on the common law. But notwithstanding that it was definitely a big step forward. In fact I was at law school in 2006 when this was going through and we actually had to learn two pieces of law—we had to learn the former law and then we had to learn the codified law so it did create a few issues. But I think it was a big step forward.One of the far-sighted things I think that Parliament did in 2016 was to put in place an automatic review mechanism so that the Law Commission would do a review of the Act in 2011. Of course the Law Commission is a very appropriate body to do such a review. For something that is so technical but so important you want the experts in the field which of course is the Law Commission—orat least it has access to the experts and the time and resources to consider something intensively and in a proper and appropriate fashion. It did the review in 2011 then in 2013 we had its report and then Parliament acted last year—well the Government acted and put this bill before Parliament. I think the way in which the Government and Parliament have gone about reforming the law in this is sort of like a case study I guess you could say for the way in which proper deliberative and consultative law reform should be done. That is highly appropriate given the particular area of law that we are talking about.This is a reasonably technical bill. It is something that is very targeted at the minor but important changes that came out of the Law Commission’s review and it is really great that we have I think unanimous support in the Parliament for passing this bill. With something so important you do want to have I think a degree of consensus in the Parliament.I just want to briefly mention the area of the admissibility of sexual experience of complainants before the court. This is something that the New Zealand common law and in fact the New Zealand legal system as is the case in other countries has struggled with for many years and we continue to struggle with it. Some members will of course have seen the Stanford rape case that is currently going on in the United States and the national conversation that is going on in the United States about rape culture the way in which the legal system over there has dealt with the victim and also the way in which the system has dealt with the offender in that case. The letter that the victim in that case read before the court as a sort of victim impact statement is the most harrowing 7500 words you will ever want to read and quite a shocking and searing experience. The way in which the legal system deals with rape in particular and sexual violence and assault needs to be improved and I think everyone acknowledges that. This bill goes some way towards doing that.There is an argument—I think an argument that people make in good faith and in good conscience—that the sexual history or experience of victims should not be admissible at all and that there should just be a blanket prohibition on that. Some people make that argument and I acknowledge that argument. The position that the New Zealand law has got to is that it is admissible only when relevant and only if to exclude it would be contrary to the interests of justice. That is the position that the New Zealand law has got to. But what this bill does is introduce not so much a safeguard as an improvement on the status quo by adding a requirement that the defence gives notice before they start a trial as to whether they intend to use evidence about a victim’s sexual history with someone other than the defendant.This was a change recommended by the Law Commission. It came out of very important work that Yvette Tinsley and Associate Professor Elisabeth McDonald from Victoria University of Wellington’s law school have done and I think it is replicated in the legal system in the state of Victoria in Australia. What that will mean is that the admissibility of that evidence will be determined pre-trial. At the moment the status quo is that it can be introduced at any time or at least permission can be sought from the judge at any time. That can be distressing for victims and can lead to some uncertainty. So at least everyone is going to be on the same page and the trial will commence with everyone knowing whether or not that evidence will be used or at least put before the court.I think that is a step forward and I think there is a wider debate that we need to have as a society and as Parliament about the way in which we deal with these issues. The Government is doing important work in a number of different respects to do with family and sexual violence and sexual violence more generally but I think that it is an ongoing conversation that we need to have. With those brief remarks I commend this bill to the House.JAN LOGIE (Green): It is an honour to speak in the second reading of the Evidence Amendment Bill. This is an incredibly important area of law and the Green Party is—I will use the word—happy to support this and we will be voting in support of it. However I do want to register my frustration at how absolutely limited this piece of legislation is and how much further we have to go to be able to ensure that victims of sexual violence as well as domestic violence are able to get justice in this country.As has been mentioned by the previous speaker this piece of legislation fits within the context of many many many years of discussion about the need for reform and so much advocacy from those on the ground. It is important to remember that we have about a 1 percent conviction rate in this country for sexual violence. What this bill delivers us are three key changes: the presumption that a child under 18 will not have to give face-to-face evidence in the court; changes around the circumstances of a court hearing evidence on the sexual history of a complainant where that can be put in writing first and given to the judge ahead of the trial so that in effect notice is given and there is the possibility that it may be ruled inadmissible; and that where evidence is given by video there will not be automatic access to this evidence and conditions or constraints on how this is viewed can be applied.In my brief submission I would like to primarily reference the advice from the Associate Professor of Law from Victoria University Elizabeth McDonald. She advised the House on what else could be done. I doubt that anyone in this House would argue that Associate Professor McDonald and Yvette Tinsley are the New Zealand experts on this. They are the people whom the Law Commission typically go to to make sure it is getting it right. I do need to register that I will be intending to develop Supplementary Order Papers to give this House the opportunity to actually make the changes that she recommended that would benefit the victims of sexual violence in our country.She made several submissions. One is in terms of the presumption of not having to give evidence face to face. She suggested that that should be extended to just beyond the age limitation of 18 to all victims of family and sexual violence. That does not mean they would all choose to have that but that there would be that presumption. In fact the presumption for giving video evidence would be to put in guidance as the best practice for all sexual violence cases because we know that these cases take so long to get to trial that victims are holding on and repeating the experience to be able to feel as if they can confidently give evidence in the court maybe over a year later. That is holding them in the place of reliving that abuse. It is unnecessary and it could be fixed by an amendment to this Act and I believe this House should make that amendment.She also sought for the court to consider when considering the admissibility of evidence the likelihood of it causing distress when considering admissibility. She noted that the arguments against this are saying that distress needs to be balanced against relevance and relevance has primacy. But she said that section 8 of the Act already has this balance in place in considering the probative value against the prejudicial impact. It is not without precedence so it could be done. She also noted significantly a recent Supreme Court ruling on the cases of historical abuse that actually have the effect of reintroducing a corroboration warning in sexual cases which is deeply worrying and goes against a trend and needs clarifying in this Act. There are many things still to fix.The ASSISTANT SPEAKER (Lindsay Tisch): I call Clare Curran—5 minutes.CLARE CURRAN (Labour—Dunedin South): I would like to start by agreeing with Chris Bishop which is something that I rarely do in that quite genuinely this is an important piece of legislation and Labour will be supporting it. I would also like to commend the work being done on this by the Minister of Justice Amy Adams. However in saying that I agree with the Green member Jan Logie that there is much more to do—that this is just one part of the work that needs to be done to improve the situation around family violence and sexual assault in our country which is woeful. Improving the law and improving the court processes for vulnerable witnesses is an important part of that but it is just a part of it—although it is good to have accord around the House on this issue tonight. It is rare that we have a piece of legislation on which everybody has worked hard and in the same direction and feels strongly about it.I do note though that this change in legislation relates to a Law Commission report from 2013 which had been essentially in abeyance until it was picked up by Amy Adams as the justice Minister. It was not until it was picked up that things started moving. I would note that it would be good if things could start moving on a couple of other Law Commission reports such as the report into the Privacy Act and the report on the Official Information Act. There are much needed law changes in those areas as well.This particular piece of legislation does a number of things. Because my time is short I will confine my remarks to two of them. The first is around the change that makes it easier for witnesses under 18 who can give evidence to give evidence other than when sitting in court. This is highly overdue and a bit of a no-brainer really. There has been quite a lot of discussion on that this afternoon so I will not continue with that.I do want to make some remarks around the requirement that defence counsel give advance notice if they intend to bring evidence about the sexual history of a complainant in sexual offence cases. The record of sexual violence against women and children in this country is woeful and sexual assault victims are deterred from coming forward because of the low conviction rate in New Zealand; I think we all know this. Here we have a concrete measure that may start to give women the sense that they will have more chance of getting a conviction they will have more chance of getting heard—because it takes so much courage to come forward to report a sexual assault let alone take it right through the court system.In 2015 4801 sexual assault crimes occurred in New Zealand. Only 1007 of those crimes made it to court last year with just 635 convictions which meant that for 2015 there were convictions for about 13 percent of reported sexual assault crimes in New Zealand. That just simply is not good enough. In the year to date 18 percent fewer sexual assaults have led to court action so far this financial year compared with the last financial year where 16.2 percent led to court action in the 2015-16 year to date compared with 19.2 percent in 2014.The change that has been made on this has been tweaked in the select committee. It has become much more specific. But what it does do is provide a process for giving notice when a party proposes to offer evidence or question a witness about the sexual experience of the complainant. This means that in terms of the courage that it takes for women to report sexual abuse crimes and to actually get up in court and speak about them this may make things easier for them.MAUREEN PUGH (National): It is my pleasure to stand and speak to the Evidence Amendment Bill in its second reading today. This bill is in the name of the Hon Amy Adams and as we have heard today the Hon Amy Adams is credited with doing great work in this space at this time. It is another example of legislation being tidied up and made relevant for the 21st century and this is absolutely necessary for the clear and appropriate application of the legal system that we have in this country today.The changes involve a number of minor and technical amendments—many of which have been debated in detail today. They are as a result of the Law Commission’s review of the Evidence Act 2006. That review took place as we have heard in 2013. Included in the amendments to this bill are those relating to the video record of evidence and how that evidence can be released and to whom. It puts victims at the heart of the justice system in these amendments and it does ensure that our more vulnerable and more sensitive cases are actually dealt with and considered in respect of their sensitivity and the impact on those witnesses and that of course helps to reduce their anxiety and stress in an otherwise stressful situation.Clause 32 of the bill which adds a replacement section 107 to the Act provides directions about the way child complainants are to give evidence. This is simply putting the victims at the heart of this justice system. It gives child witnesses the right to a support person when they are giving evidence and provides for alternate ways to provide evidence.Clause 33 of the bill which amends section 119 of the Act introduces three new offences for the improper handling of video records of evidence and is further expanded by inserting new sections 119A and 199B in clause 33A which deal with how parties may access video records of evidence outside those criminal or Family Court cases.This bill is another step in the Government’s commitment to updating the justice system making it more efficient and more focused on victims. I have great pleasure in commending this bill to the House.LOUISA WALL (Labour—Manurewa): Tēnā koe e Te Māngai o Te Whare. It is my actual pleasure to speak on the Evidence Amendment Bill in this the second reading. Labour does support this bill. I am now a member of the Justice and Electoral Committee however I was not for the hearing of evidence related to this piece of legislation.I guess historically it is good to note that the Law Commission had been monitoring this Evidence Act since it came into force in 2006. In 2007 the Law Commission was asked to review the law relating to the disclosure to criminal courts of evidence of defendants’ previous convictions. That was actually inspired by the acquittal of two former police officers on trial for sexual offending. So for the House and people listening I note that that was actually part of the motivation for the review that the Law Commission then did. It is interesting to note also that the judiciary had its own Evidence Act committee that was monitoring its implementation. In April 2012 the Law Commission invited comment and feedback on the operation of the Act from the public and at that time a group was established an advisory group that had as members Ministry of Justice Crown Law the Public Defence Service the New Zealand Law Society and some academics.The purpose of this piece of legislation is as follows: admitting previous consistent statements privilege for plea discussions minor and technical amendments and restrictions on video record evidence. I really want to focus my contribution this afternoon on three particular areas: the notice requirements for evidence of sexual history; the presumption that child witnesses give evidence in alternative ways—part of that incorporates that victims should never be the ones on trial; and also the ability now for a support person or more than one support person to support child witnesses when they give evidence.To the bill itself—if we focus on clause 16 which will insert new section 44A to provide for a process for giving notice where a party proposes to offer evidence or question a witness about the sexual experience of the complainant with the person other than the defendant. The interesting thing to note is that the intention of the bill is to encourage admissibility decisions before trial. There was a submission from the judges of the district courts that actually has led to a stipulation about specified time frames which was a highlight in their submission so now there is a time frame. New section 44A(5) inserted by clause 16 provides that application must be made when a case management memorandum or a trial callover memorandum is filed under the Criminal Procedure Act 2011 subject to the judge’s discretion. I want to highlight that the select committee did do a great job and it responded directly to the submission of the judges of the district courts.The other clause in the bill that I would like to highlight is clause 25 which will amend section 79 of the principal Act providing a support person to a child witness.Now there is a presumption that child witnesses will have somebody who will support them through that process. There is also scope for more than one person to support children giving evidence. There was also a subsection replaced—that was a suggestion of the Law Commission and I want to highlight that—section 79(3) which reads: “the Judge may in the interests of justice direct that support may not be given to a complainant or a child witness or other witnesses by (a) any person; or (b) a particular person.” The Law Commission highlighted that there should still be scope in the process to ensure that there are not adverse influences on any witnesses. So I want to commend the select committee for responding to that particular submission.In terms of my substantive contribution I really want to focus on clause 32 which replaces section 107 of the principal Act. This is about alternative ways of giving evidence by child witnesses in criminal proceedings. What I was actually horrified to read was that there are 750 child witnesses every year and that most of the complainants have faced sexual abuse. The intention of this piece of the legislation is that children do not have to be in courts with their abusers.It was interesting to find out that a piece of research was undertaken in 2010 and it was titled “Child witnesses in the New Zealand criminal courts: a review of practice and implications for policy”. That was conducted by the Institute of Public Policy at Auckland University of Technology and it was by Hanna Davies Henderson Crothers and Rotherham. It was funded by the Law Foundation of New Zealand with support from the Ministry of Social Development the Ministry of Justice and the New Zealand Police. What the research essentially emphasised was that what sits behind our justice system and our court system is that everyone has the right to a fair trial and that the most accurate and complete testimony from witnesses is paramount. Also there is a question of justice within our court system. What it noted was that from the 1960s New Zealand’s treatment of child witnesses had been questioned. So that was the motivation behind this piece of research.But what I found really interesting is that in terms of the ability now for video evidence what the research found was that during the 1990s child witnesses were waiting up to 260 days before they were able to present evidence in court. At the time of writing this report—and I guess it would have been in 2009-10—children were waiting up to 477 days. So the ability for some sort of contamination of the evidence—because they did a whole lot of other studies showing that children’s memories do become compromised because of the delays. What this section 107 in the legislation allows is for the forensic interviews of those children to be played in court and that they are considered as evidence-in-chief. Actually for me that is one of the most significant changes in this piece of legislation because what I found horrific as I said was that 750 children who had been sexually abused had to give evidence in court with their abuser there and that is now going to be rectified.I would also like to highlight just a couple of other things. In January 2016 the Law Commission acknowledged that sexual violence was significantly under-reported in New Zealand; many victims fear how they will be treated in court. So what we are talking about is incredibly relevant and I want to tautoko my colleague Jan Logie’s earlier contribution. Actually I will be looking at those Supplementary Order Papers. This is what the president of the Law Commission said: “A high percentage of victims of sexual violence are ‘opting out’ of the very system that is designed to deliver them justice.”; and: “They are doing so largely because they perceive the formal criminal justice system to be alienating traumatising and unresponsive to their legitimate concerns.” What I have found frightening is that in 2014-15 only 19.2 percent of assaults actually got to court but in 2015-16 that had decreased to 16.2 percent. So we actually do have a problem about the victims of sexual assault coming forward and wanting to give testimony in court.The other point that I want to highlight—and this is actually a bit of a wero to our Minister because I think she is doing a fantastic job—is that in December 2015 there was a recommendation by the Law Commission that a specialised sexual violence court be created. I think a natural progression of this whole area this kaupapa is the establishment of that specialised sexual violence court. So I want her to know I want the people of Aotearoa to know that this issue is a priority and that we will all work on it constructively. Kia ora.Bill read a second time.