Smith Murray: Evidence Bill — First Reading 
Smith Murray: Evidence Bill — First Reading 
[Volume:625;Page:20421] 
MURRAY SMITH (United Future) 
: 
 This bill is only 3 years short of modifying a law that is 100 years old: the Evidence Act of 1908. Although over the course of those 100 years there have been amendments and a bit of tinkering to certain areas we are still left with a justice system that is effectively a 19th century justice system. If we needed any convincing of that it was to be found in Dr Richard Worth’s speech tonight which was a speech that could have been given to this House in the 19th century. He referred to the four cornerstones of the adversarial system: the importance of the judiciary’s passive role and of it not descending “into the arena” the counsel’s burden of putting the client’s case the counsel as the “champion of the defendant” and he discussed other things in the “accusatorial system”. Those are all 18th and 19th century concepts and it is time we brought our justice system into the 21st century. In order to do that we will have to make somewhat more of a radical change to it than we do in this Evidence Bill. 
Insofar as evidence is at the very heart of the justice system I am disappointed that although the bill makes some improvements—in particular a degree of codification and modification of the existing law in what I see as a positive fashion—it does not go nearly far enough to provide a justice system that New Zealanders can again have confidence in. New Zealanders lack confidence in our justice system for the very reasons that Judith Tizard seemed to think this bill was going to address—namely the cost and complexity of it. This bill will not solve those problems and until we look at a fundamental change it will not happen. 
I was pleased that the bill enunciates the principle that all relevant evidence is admissible unless there is a policy reason to exclude it. That starts to go down the path that United Future would like to go down whereby evidence is brought in and maximised rather than being excluded for all sorts of wonderful reasons. The United Future members believe that the sorts of principles that should be at the foundation of our justice system are firstly that as far as possible it should determine the truth secondly that it should punish those who wrong other people or society in general thirdly that it should promote the reconciliation of the offender and the victim with a view to the restitution of physical damage and the restoration of the relationship between them and fourthly that it should promote the restoration of the offender as a positive and law-abiding member of society. The civil justice system similarly should focus on determining the truth and then assist the parties to reach agreement on the outcomes necessary to resolve the conflict between them promote the reconciliation of the parties and restore their relationship. 
Until we get a justice system that is focused on determining the truth instead of on a semantic game—which is what our system has been for hundreds of years—we will not get a justice system that delivers for the people of New Zealand. It is astonishing that when I say that our justice system is not primarily focused on finding the truth people are horrified. But that fits in with their experiences. We need to make some changes in order to ensure that the truth is at the forefront of our evidence and of our criminal justice system. One of the ways we could do that very easily is to require a defendant to give evidence. At the end of the day what defendants say in answer to the charges brought against them is the most helpful evidence to a jury and to a judge in terms of determining the truth. 
It was interesting that the Greens talked about not removing a right to silence. Well there is no right to silence. In fact the history of the so-called right to silence just demonstrates the 19th century situation we continue to have. In British law up until the end of the 19th century defendants were not allowed to give evidence because it was considered that they would be self-serving in their evidence and could not be trusted. Therefore their evidence was not considered fit to be heard in a court of law which was meant to uphold truth and justice. New Zealand was at the forefront of the Commonwealth in the 1880s in extending that provision to state that although defendants could not be compelled to give evidence they could do so if they chose. So the change was made from defendants not being allowed to give evidence to New Zealand leading the way by stating that defendants could give evidence if they wanted to. We have not progressed any further than that. It is time we progressed into a situation of requiring defendants to give evidence or if they do not get on the stand and answer charges themselves allowing an adverse inference to be taken. Clause 26 retains the anachronistic provision that no adverse inference can be taken if a defendant chooses not to give evidence. The defendant should be required to give evidence. 
The second thing we should really look at changing if we are to make a fundamental change to the system that is determined on the basis of the truth is the whole area of admissibility—in particular with regard to improperly obtained evidence. We have a situation now that if the police stuff up in terms of their obtaining of evidence the truth is chucked out so that the police can be punished by the evidence not being allowed to be admitted. Therefore we abandon what could be critical evidence in determining the real facts in a situation because we feel we need to punish the police in order to make sure they do things right. I say that we can have our cake and eat it too. I say that we could admit the evidence albeit wrongly obtained on the basis of other sanctions against the police and against the Crown if necessary in order to deter them from improperly obtaining evidence. But why should truth and fairness suffer in a court because one party—the police; those who are prosecuting—get things wrong and do not provide the evidence in the correct fashion? What that tells us again is that our system is all about the police versus the defendants—it is a game. It is as Mr Worth says an arena a gladiatorial contest and a championing—champions are pitted against each other in the vain hope that the truth will emerge from the centre of it. Instead it tends to be just a bit of a bloodbath. 
We get ridiculous situations such as the Barlow case arising from the Thomas murders. Mr Barlow was able to give his version of events in the newspaper and to find other people to give his version of events. Then when the police came up with more evidence he came up with a different story that was contradictory to it. Then when the police came up with more evidence he changed his story yet again. By the time the case got to trial Mr Barlow had given three incompatible versions of the facts but he elected despite all the publicity that he himself had undertaken not to give evidence at the trial. As a result we had two hung juries and it took a third jury before he was actually convicted of the murders. That would never have happened if Mr Barlow had had to give evidence because as one Queen’s Counsel said to me at the time if Mr Barlow had had to give evidence he would probably have come up with a fourth story—another story that was incompatible with the other three—and the jury would have seen straight through him. 
Another thing we should look at curbing is the law against self-incrimination. If a person is charged with an offence it is reasonable that we should under our criminal justice system require that person to answer the offence in person. If that means that people incriminate themselves well so be it. If people have committed an offence they should be punished for it. If our system is based on truth—on finding the truth convicting the guilty and acquitting the innocent—then the fact that people may incriminate themselves if they give an answer should not be a barrier. 
We should also allow judges far more latitude in terms of their questioning and calling for evidence. In this bill we make some leaning towards a greater allowance for bringing in evidence and for judges to be involved. I think that what we should have but do not have in this bill is a provision for judges to call for evidence. We need to have stronger provisions so that if a judge sees a situation whereby clearly the truth of the matter will be determined by the evidence of such and such a person and if the judge considers that that evidence is critical to the case he or she can ask whether the prosecution or the defence will call that person. If nobody calls that person then the judge should be able to appoint a lawyer to assist the court in calling that evidence. It is important that evidence is heard when it is central to determining the issues in the case. That is the sort of approach we should take whereby judges are proactive in terms of determining where the truth lies in a situation instead of being passive as Mr Worth likes to state it and simply acting as the arbiter in a gladiatorial contest. 
Those are the sorts of changes that I would like to see. I am not overly confident that the select committee process will be sufficient to make such radical changes to the bill but if we are serious about getting a 21st century justice system that people can have confidence in and that delivers results that is the sort of thing we need to see changed. However United Future will support the referral of the bill to the select committee and we will see where we go from there.