Worth Richard: Evidence Amendment Bill — First Reading 
Worth Richard: Evidence Amendment Bill — First Reading 
[Volume:640;Page:9970] 
Dr RICHARD WORTH (National) 
: 
 There has already been a clear indication given by National as to where it stands in respect of this amending legislation. I would make these observations. 
The Evidence Act sets out to codify the law of evidence. Prior to that we had a mix of statute law and of common law rules. These common law rules are developed by the judges; they are part of the judge-made law. It was a major undertaking to codify the law of evidence that was intended. I think that is to be well seen in the fact that the Law Commission report that had recommended such codification was in a complex report of two volumes published in August 1999 nearly 8 years ago. So it was that the relevant committee of Parliament set about the task of looking at the work that parliamentary counsel had done to effect that intended codification. Because it was complex it was decided to establish a subcommittee—and we have heard of the composition of that subcommittee—and to engage expert assistance and that happened. 
The starting point for looking at these issues that arise is in the principal Act in section 27. It is in Subpart 3 under the heading “Defendants’ statements improperly obtained evidence silence of parties in proceedings and admissions in civil proceedings”. The short point is based on section 27(1) which has the heading “Defendants’ statements offered by prosecution” and reads: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant but not against a co-defendant in the proceeding.” 
Members have heard that there was a divergence of view between the Law Commission and the way it wanted the law to be drafted and the subcommittee. There are different perspectives and there are different philosophies; those differences are well known. I would simply comment that some of the arguments that arise in looking at what might be the preferred position are that it obviously offends common sense to exclude from a jury’s consideration the evidence of accomplices—who are often the only witnesses to the crimes—and that there is no compelling reason not to rely on evidence that the prosecution has obtained fairly in establishing the case against all of the defendants. 
 Mr Finlayson has seen this as a mea culpa situation. That it certainly is. But it might also be characterised as something akin to an Homeric nod. That phrase was coined by the Roman poet Horace in his  
Ars Poetica 
 where he said: “et idem indignor quandoque bonus dormitat Homerus” which translates to: “and yet I also become annoyed whenever the great Homer nods off.” Just as we found an error in this legislation there are numerous continuity errors in Homer that resemble nods. I take just one example from the  
Iliad 
 where Menelaus kills a minor character Pylaimenes in combat but in a later section of the  
Iliad 
 he is still alive to witness the death of his son. 
So it is that we see in this legislation in two parts a series of small amendments. They are small amendments in terms of the length of the material but they are significant for reasons that others have identified in the context of change to the law. In particular in these major drug trials there is the need for clear rules to be put in place touching the co-conspirators rule. 
 I would just say this. It is intended that the Evidence Act be a code and there are a number of indications of that intention in the statute. Two indications for example are in sections 10 and 12. This amendment desirable though it is as to its intent opens up a residual common law possibility which I think is undesirable. It would be far better when the Justice and Electoral Committee comes to consider this legislation if the committee could actually put into statutory form what the exceptions are to be. We know what they are. The exceptions are to be: first where the co-defendant accepts the truth of the statement; second things said and done in furtherance of a common design in a case where conspiracy is alleged; and third things said and done in furtherance of a common design where the accused are alleged to have engaged in joint criminal enterprises. 
This legislation is clearly required. National supports its passage in a speedy way but I just invite the committee to think about the issue that I have raised and the desirability of maintaining in a stand-alone form without the need to resort to extrinsic aids a code of evidence.