Evidence Bill

Thank you for that formality, Mr Speaker. I move, That the Evidence Bill be now read a first time. It is my intention to move that the bill be referred to the Justice and Electoral Committee. This bill brings together in one place the common law and statutory provisions relating to evidence. The bill will replace most of the existing law on the admissibility and use of evidence in court proceedings. Evidence law is largely judge made, comprising decisions made in response to a particular set of facts before the court. The statutory provisions dealing with evidence are contained in a number of statutes, and have been reformed over a long period of time on a piecemeal basis. The resulting complexity and inconsistency of the law of evidence results in undue legal argument, expense, and delays in proceedings in order to accommodate arguments over the issue of admissibility. The bill brings the current mosaic of statute and case law into one comprehensive scheme.

The bill has its origins in 1989, when the Law Commission was given terms of reference by the then Minister of Justice. The purpose was to make the law of evidence as clear, simple, and accessible as is practicable, and to facilitate the fair, just, and speedy judicial resolution of disputes. With this purpose in mind, the Law Commission was asked to examine the statutory and common law governing evidence to proceedings before courts and tribunals, and to make recommendations for the reform with a view to codification.

The Law Commission was thorough. It spent a decade reviewing aspects of the evidence law, publishing discussion papers, and seeking the views of those involved in the justice sector, including a wide variety of community groups, academics, officials, and members of the legal profession and the judiciary. In 1999 the Law Commission published its report on evidence and an evidence code amalgamating the various aspects of the law of evidence.

The proposals in this bill are generally based on the recommendations of the Law Commission and on the provisions of the evidence code. The purpose of the bill is to help secure the just determination of proceedings. It sets out to provide for facts to be established by the application of logical rules. It aims to promote fairness to parties and witnesses. It protects rights of confidentiality and other important public interests. It seeks to avoid unjustifiable expense and delay.

The bill’s fundamental principle is that all relevant evidence is admissible unless there is some policy reason to exclude it. Evidence must be excluded if it is irrelevant, if its probative value is outweighed by its prejudicial effect, or if it would needlessly prolong a proceeding.

The bill is over 200 clauses long and covers a wide range of matters. It deals with rules of admissibility, including matters such as admissibility of hearsay, opinion evidence, improperly obtained evidence, and propensity evidence. It deals with privilege and confidentiality, including various types of privilege such as that enjoyed by legal advisers and ministers of religion. It also includes the privilege against self-incrimination, and provides a protection for confidential information. It deals with the trial process, including compellability of witnesses, support persons, and rules around questioning witnesses, as well as alternative ways of giving evidence. The admissibility of documentary and machine-generated evidence is also covered in the bill. It deals with overseas evidence. The bill covers the rules for giving evidence from overseas to a New Zealand court, and evidence given in New Zealand to be used overseas.

The bill is generally consistent with existing trends in the law, and clarifies the existing law by addressing ambiguities and inconsistencies. It does, however, fundamentally change the current law in some areas. There are some matters in the bill where the arguments for and against are finely balanced. In recognition of this, I invite the select committee to seek submissions regarding those matters, and I anticipate that those expert in evidence law will make submissions. Changes to the proposals may be considered after the arguments have been fully canvassed by the select committee.

I now want to refer to three areas to which further consideration may be given by the select committee. The first relates to the reform of the hearsay rule in relation to a defendant’s out-of-court statements being admissible against co-defendants. Currently, the common law provides that one defendant’s statements cannot be used to implicate another defendant. Juries are directed to use evidence for one purpose, but not for another. This gives rise to a jury direction, which may seem illogical to the jury—that is, one can use the evidence in respect of one defendant but not for a co-defendant even though it seems relevant to the jury. The bill proposes that evidence in this regard will either be admissible against all defendants or none at all. Arguments against admitting prosecution evidence include oppression, unreliability, or improperly obtained statements. If the defence leads the evidence, then arguments against admitting it include the rule against hearsay and the previous statements’ rule. The effect of this rule will be that statements that previously were not admissible against co-defendants will be.

The second area is the proposed truthfulness rule, and the subsequent abolition of the collateral issues rule. The truthfulness rule provides that evidence of truthfulness will be admissible if it is substantially helpful in assessing that person’s truthfulness, with additional special rules for the defendant. The collateral issues rule is abolished by not being included in the bill. The rule applies when cross-examination is directed to a matter that is not a fact in issue—usually questions about a witness’s truthfulness. The rule treats answers given by a witness as final, and prohibits evidence intended to challenge those answers. I invite submissions on the abolition of the rule.

The Law Commission states that the policy behind the rule is essentially one of efficiency and that the court’s attention should not be needlessly diverted from the main issues. It goes on to state that although this reasoning is sound the rule can result in excluding helpful evidence, if it is applied too rigidly. Further, the Law Commission considers that other rules, such as the relevance requirement and the general exclusion rule, will operate as a restraint on offering evidence of truthfulness that has little value.

The third area covers changes to the law of self-incrimination. The privilege against self-incrimination permits a person to remain silent when required to provide information, on the grounds that the information would incriminate that person. Currently, the privilege is available where a reply may lead to prosecution for any criminal offence or to liability for a civil penalty. The Law Commission proposed that the privilege should be restricted to incrimination for crimes punishable by imprisonment. The bill provides that privilege should be available where the information required would be likely to incriminate the person in relation to a criminal offence, not just those punishable by imprisonment. That is because the stigma of a criminal offence justifies the retention of the privilege for non-imprisonable offences.

The need for reform in this area is long standing. The terms of reference were given to the Law Commission in 1989. In 1999 the commission published its report. Following from that report, this bill, which generally follows the recommendations of the commission, is being introduced. I look forward to the bill being thoroughly considered before the Justice and Electoral Committee and the ultimate passage of this bill as the culmination of a long process of consideration of a complex, but important area. I commend this bill to the House.

It is a pleasure, on behalf of the National Party, to speak in support of the Evidence Bill, and National will support its referral to a select committee for the processes of public submission and consideration. It is also an opportunity to follow Philip Goff, who I do not think will be the Minister of Justice when this bill is enacted. It seems clear to me and to my colleagues on this side of the House that there will be a change of Government, and Philip Goff will, no doubt, seek more remunerative employment in other fields of human endeavour.

I would like to talk about some aspects of the bill, perhaps more in a preliminary way, in the context of what the law of evidence is all about. But before I do that, I would like to pick up on a comment that Philip Goff made, and I would just like to say that the pressure to see this legislation advanced to its present position has come from a variety of sources, and one of those pressure points has been the media. I would single out for special mention the commitment to a new Evidence Bill of the business weekly magazine Independent, and the unflagging efforts of one of its very senior editors, Denise McNabb, in that regard.

What I want to say about the law of evidence is this, really. It is a set of rules by which judges determine what testimony and exhibits may be accepted, and how they may be used. It is central to the day-to-day operation of New Zealand’s administration of justice. It affects, obviously, every piece of evidence given by every witness in every court, so its rules must be clear, principled, and readily accessible. The problem has been that in its present form the law of evidence is really a patchwork of disparate elements that have never been coordinated and whose effect is frequently disputed by experts. I see Mr Fairbrother is in the House. He has had substantial experience in the criminal law, and I am sure he will agree with this. The problems result from ancient rules of the judge-made common law that themselves are often not really precise and often not readily accessible, and they have been met by ad hoc statutory reforms that have, in turn, presented difficulties both of construction, and, I would also say, of scope.

A good example of that would be the Evidence Amendment Act (No. 2) of 1980, which responded to an over-narrow expression of the law of hearsay in a case well known to lawyers and law students alike—Myers v the Director of Public Prosecutions. So it was a good move when in August 1989 the then Minister of Justice, Sir Geoffrey Palmer, gave the Law Commission an evidence reference, and the terms of that reference were to make the law of evidence as clear, simple, and accessible as practicable, and to facilitate the just and speedy judicial resolution of disputes. In that reference the commission was tasked to examine the statutory and the common law governing evidence in proceedings before courts and tribunals with a view to making recommendations for reform with a view to codification. That is what this bill is all about. It draws together the common law strands and the statutory strands, primarily based in statutory terms in lawmaking in 1908—some significant period ago—to produce the now Evidence Bill.

I think it is also relevant to say something about the adversarial system. New Zealand and other common law democracies, particularly Western democracies, have a system known as the adversary system. The guts of it is that the parties present evidence to a judge, if the judge is sitting alone, or to a jury if the judge is sitting with the jury. They make decisions, after applying the relevant law to the facts. The fact finder must first decide what the facts are, by assessing the evidence offered by the parties. According to one scholarly evidence text—and huge amounts of material have been written on the law of evidence—evidence of a fact is information that tends to prove it.

I would like to speak about the operation of the adversary system, because when the Justice and Electoral Committee considers this bill it will have to look carefully at whether what we are doing is consonant with the main features of that system. I would say that there are probably four factors of that adversary system. The first is that the judiciary plays a passive role in dispute resolution. One need only to look at what goes on in the French courts, which have an inquisitorial system, to see that their system operates on a very different basis. But here, under our adversary system, the judiciary does not actively seek out cases or embark on investigations. The judiciary reside in our courthouses, and is only activated when litigants bring cases before them. Even when adjudicating, our judges should not archetypally move from passivity to activity and interfere with counsels’ development of cases.

It has been said in the past that the judge who speaks too much is “no well-tuned cymbal” and also that a judge who descends in the arena is liable to have his vision “clouded by the dust of the conflict”. [Interruption] I cannot hear the interjection that is coming from the other side but I can assure Mr Fairbrother, who is making troublemaking noises, if he has read widely on the law, that these are direct and well-sourced quotations. So the judiciary is not only to be passive; it is also to be neutral. It is not to pursue some particular theory of a case. It is to allow counsel to put their separately formulated cases before the court.

The second point is that counsel bear the burden of actively prosecuting clients’ cases before the courts. So their obligation is to put as strongly as they can their client’s case, and to diminish their opponent’s case to the greatest extent possible, and this is the linkage of the adversary system with the old system of trial by battle. The lawyer is the champion of the client. I remember the words of Lord Denning: “In litigation as in war, no holds are barred.” The third point is that our adversary system is accusatorial. The accuser, the party who asserts some cause of action against an accused, bears the express burden of proving his or her case to a high level of certainty in criminal cases. The fourth point, in particular reference to criminal cases, is that our adversary system employs the institution of the jury. In jury trials the judge is the trier of law, and the jury is the trier of fact. So the jury injects this lay assessment of the evidence in the law into the trial.

So our rules of evidence—and they are particularly relevant in the context of this Evidence Bill—are framed because we have chosen as our system of law this adversary system. So what is this bill about? Philip Goff has made some comments about it. The public can judge whether those comments are helpful. I choose to judge them as not particularly helpful, but I would say that the bill covers such matters as rules of admissibility including things like hearsay, opinion evidence, improperly obtained evidence, and propensity evidence. It deals with questions of privilege and confidentiality. It deals with the trial process—and that is why I spoke about our adversary system—and then, perhaps less significantly, it deals with rules for giving evidence from overseas to a New Zealand court, and evidence given in New Zealand to be used overseas.

The bill has several purposes, and I will conclude on this point by saying that it is to help secure the just determination of proceedings by, first of all, providing for facts to be established by the application of logical rules, promoting fairness to parties and witnesses, protecting rights of confidentiality and other important interests, and, finally, avoiding unjustifiable expense and delay. It is technical legislation, and appropriately is referred to the Justice and Electoral Committee. National supports this bill.

It is always a pleasure to follow the member for Epsom, who, with his indomitable determination to wring every last word out of every issue, must have cost his clients a great deal over many years. In his own words he is “no well-tuned cymbal”; however, I think he is a symbol of much that needs to be changed in the legal system. It is probably good that he is in Parliament, bringing his undoubted experience in the padding and obfuscation of the law.

It is a great pleasure to follow my colleague the Minister of Justice, the Hon Phil Goff, who is bringing in yet another profoundly researched piece of legislation, following a great deal of work done by the Law Commission.

It is absolutely vital that New Zealanders have access to the law in the simplest, most accessible, and cheapest way possible. Yes, many cases are extremely complex, but it is unconscionable that so many New Zealanders do not go near courts because they fear the cost and they fear the complexity—often, when they have a very good case. Every electorate MP worth his or her salt will have any number of cases where constituents have come to them with perfectly just cases that should have been resolved in our courts but have not been, because of the complexity, the inconsistency, and the cost of almost every case.

This is a vital piece of legislation that has been reviewed over many, many years by the Law Commission. Indeed, more than 10 years have been spent researching and consulting on this legislation. I think we all recognise that although common law is one of the great strengths of the Westminster system, it is also very piecemeal, and legislation has to bring it up to date and reconcile it on occasions. I am delighted to follow my colleague Phil Goff, who has yet again demonstrated his profound interest, and rigorous approach.

I think the Justice and Electoral Committee will be able to call for submissions on this. I am sure there will be many interminable submissions on the lines of Dr Worth’s recent peroration. I look forward to this bill coming back to the House, representing an improvement that will clarify existing law by addressing ambiguities and inconsistencies. It does fundamentally change the current law in some areas, so it needs to be well examined. The bill is the next step in a lengthy process, and I do hope it will result in better access to, and clearer understanding of, the law and the right to justice for all New Zealanders

New Zealand First will be supporting this legislation. The law of evidence is probably the cornerstone of our legal system. How evidence is presented is the crux of a case, in my view. One can be as academically clever as one likes, but if one is incapable of presenting one’s case in a court, one may as well never have gone to law school. So how we set up our laws of evidence is very important. Of course, the reverse is also the case. One may not be terribly bright academically but one can make a very good court lawyer, many times, if one is quick on one’s feet, knows the rules of evidence, and can deal with people. The Evidence Bill is extremely important legislation.

I was amused by the Minister of Justice, Hon Phil Goff, adding yet another of those lovely Labour phrases. This bill, as we were informed, went to the Law Commission in 1989, and he told us the commission was “very thorough”, and now 16 years later we have this bill. We can add that Labour homily to the Labour phrase for sex change—“gender reassignment”. We seem to have these lovely expressions from the Labour Party. Another example is a tax increase becoming a “tax shift”. We are going to have a list of as many of these wonderful phrases from this Labour Party as we can possibly get—possibly even more than there have been tax increases!

However, I pick up on one point made by the Labour member for Auckland Central, Judith Tizard. She talked about cost, and, of course, one of the reasons we have costs with court proceedings is that the Labour Government increased the cost of civil proceedings from a filing fee of about $100 to $1,000. That is why we have costs. That is why people cannot afford to go to court.

But let us put those things aside. I am not going to make a long speech. This is very important legislation. I am sure the Law Society, and lawyers generally, will pay very close attention to it. We have a great responsibility as a Parliament to make sure this legislation is right when it comes out of Parliament.

First, I want to dissociate myself from what I thought were some slightly churlish comments made by a member whose words I usually listen to extremely closely—Dr Richard Worth. I felt that the introduction to this bill by the Minister was one of the most workmanlike, sober, and respectable addresses I have heard in introducing a bill. There were no exaggerated claims to a new millennium for criminal justice, and I thought he gave us a good survey of what the bill is about. So on this rare occasion I feel I cannot adopt Dr Worth’s position that it was, in so many words, a “useless speech”. I do not think it was useless, at all.

This is, of course, a bill that has been lurking about in gestation for a very long time. About a year ago I was sounded out as to whether I wanted to be part of what might have been a legislative experiment for the Government, to go through a draft so that the kinds of questions that might be raised at select committee by members could be flagged or explored in advance. I thought that was quite a useful idea, because, as is undoubtedly the case, once the Government has introduced the bill, even if it is on areas that are regarded as lawyers’ law, where there should not be—or it is not expected there be—major political divides, it is nevertheless still not easy for a Government to see a Government bill dramatically changed, because people will tend to say that it must have been a muck-up in the first place.

I was interested to see that the Government had not slavishly followed the recommendations of the Law Commission. Clearly, an independent view has been taken of a number of the issues. But it does not seem to me that it truly matches up to the claims to be a codification. I do not think the Minister used that term in his introduction, and the precise words are not used in the explanatory note that the Government has attached to the bill, but certainly the claim to be simplifying a complex morass of case law is the usual description of codification. The word “fake” is far too strong, but, some of this gives the appearance of codification when, in fact, all it is doing is listing the factors that judges look at, without making the likely outcome any more obvious than before to the lay reader or the reader who is not a specialist in the area.

For example, I wanted to see whether we were going to have more or less encouragement to a kind of Miranda Law developing in New Zealand—that is, trials whereby the primary effort of the defence is to attack the legality of the evidence, so that the whole trial turns into a trial of police practice, instead of a trial of the guilt or innocence of the offender. So I look at clause 26, “Improperly obtained evidence”, hoping to see strong guidance to judges that the overall importance is whether the offender is guilty. Instead I find, in subclause (3), a long list of the kinds of things that judges probably weigh now, and no real indication of where the balance should lie. Will we have a relatively automatic exclusion of improperly obtained evidence, or will we not?

This is an area where the Government should have, in fact, taken a view, or at least have indicated that the judge’s consideration should be primarily on the defendant—because the defendant should be judged on guilt or innocence, and that might well be best determined on the basis of the improperly obtained evidence—but instead of on whether excluding the evidence is essential as a disincentive to future improper investigatory practice. In other words, what is not there is a focus on the reason why evidence should be excluded, not because it is wrong for the particular defendant, but because we have a set of rules and it is wrong for them to be disobeyed, and the judges are presumably deciding that disciplinary procedures are not as effective as simply making the evidence useless. At the same time, of course, they may be causing grave offence to the victims of the particular crime, and the select committee should do quite a lot of clarification on matters like that.

I am concerned also that I see nothing in here to deal with the so-called right to silence. It is possible that I, not being an expert in these matters and not having practised in the courts for many years, have not seen this dealt with, but I have been through the bill and I think eliminating the right to silence is a long-overdue reform.

💬 Murray Smith: No, it doesn’t. It retains it.

I thank the member. That is an interesting one. Judges—I do not like to use the term left or right—from a conservative and from a radical bent of mind, like Justice Thomas, Justice Williamson, and various others, have in print called for the end of the so-called right to silence, because it actually is inimical to justice. The so-called right to silence does not mean a right that protects people from being forced to say something, but means it is difficult, or is not appropriate, for a judge or jury to draw conclusions from the failure of the accused to give evidence.

We have situations that really affront lay people, and obviously affront some judges, such as the Marlborough Sounds case. In that case the defence counsel could cross-examine on all kinds of fanciful theories about what might have happened, postulating alternative explanations for the facts, when the one person in the court who actually knew—who must have known—what the real facts were, could choose never to put himself at risk of being cross-examined on the theories advanced by his own counsel. That is wrong, and it should go.

I am concerned also that there is not a clear repudiation of so-called cell-mate confessions. I think cell-mate confessions have brought the criminal justice system into disrespect. Although they may have secured convictions for some deserving criminals, the loss of confidence that many have in it, and the fact that it encourages groups to form around offenders and to assert their innocence, means that it has been a very expensive victory in some cases. There are references to co-offender confessions, but I do not think they rule out cell-mate confessions in the way they should.

I am also concerned that there is not the reform I would have expected about children’s evidence and what used to be called—as lawyers listening will know—section 23G, which were the misguided changes made by Sir Geoffrey Palmer in 1989. There is change, but I do not think the bill is as clear in this area as the Court of Appeal has been very recently. In some senses it is a shame that the bill has not caught up with the courts. This is no longer a codification; this would actually take the law back from where judges have now tried to steer it. Having decided that that rush of blood to the head in 1989 left our law in a dangerous position, with some ancient rules of evidence that protected against improper convictions abandoned, judges decided that it was time to go back. Children’s evidence has particularly been a problem in sex offender cases, and some theories of child molestation, and in this decade and the last part of the last decade we have seen a horrified realisation of miscarriages of justice all around the world.

Finally, I am concerned too that the penalties for perjury have not been dealt with in a way that I would have hoped. The provisions about witness anonymity and protection of witnesses are a substitute, basically, for the creation of a system where it is simply not worth trying to pervert the course of justice. That is the reform we would have liked to see signalled. We look forward to trying to improve this bill in the select committee.

The Green Party will be supporting this bill to a select committee for further consideration. We are very pleased to see the work on this bill come to fruition. The fundamental presumption that evidence is admissible unless it is determined otherwise is a very sensible approach and we are pleased to see that the complex provisions that have been developed over time are getting some clarification and a degree of simplification.

One of the things we are pleased to see, although I confess I am not 100 percent aware of some of the previous legal situations in terms of children’s evidence, is that it seems from the bill that the way children’s evidence is considered will be given some real consideration. Serious concerns have been raised about the way children’s evidence has been managed—those concerns particularly arising out of the high-profile civic creche case, but in other cases as well—and there does need to be better management of the way children’s evidence is dealt with. The proposal in this bill that seems to ensure that there is a judicial conference before the matter goes to hearing, in order to work out how to manage how that child complainant’s evidence is given, seems like a very good provision to have.

On reading the Law Commission’s report, I note particularly for the House that the Law Commission said that children do have a very good capacity for detailed and accurate recall of events and things that happen to them. The commission did a lot of analysis and research with experts on child psychology and other areas of children’s evidence and it was very concerned that the previous situation where judges were required to give directions to juries that children’s evidence was to be considered with caution, because of their natural tendency to fantasise and fabricate, was not an appropriate way to approach children’s evidence. The Green Party completely agrees with that. Children’s evidence should not be dismissed as an immediate approach, as a presumption.

The commission goes on to say that it is not the evidence of the child that needs to be given special particular consideration, but that scrutiny is needed of the manner by which that evidence was obtained from the child—the way the child was questioned and the circumstances that have led up to that child’s evidence. We think that is a very, very important point and still deals with only part of that matter, because, of course, it can deal only with evidence in court and the judicial process. But the commission’s approach is about the process by which that evidence is dealt with and the process by which the evidence is brought out of the child. It needs to be a very clean process and one that does not involve any kind of influence from others. It is very difficult to do that with children, not to influence them, because they are very, very receptive to emotional states, particularly of the adults around them.

So we are very pleased to see that there seems to be a tendency in this bill that it is the manner by which evidence is obtained from a child that is as much under scrutiny as the evidence of the child itself.

In the select committee we will be looking at the changes to the provisions about the defendant’s right to silence in criminal and civil cases. We are not particularly happy with what looks like the narrowing of the right to silence. I have to say that I am very surprised at ACT’s position on that. ACT’s position, by arguing that a defendant’s decision not to give evidence should be, or could be, used as an inference of guilt on his or her part, goes directly to the question of whether we have a justice system based on the principle that one is innocent until proven guilty. ACT seems to be saying that if a person makes a decision not to give evidence, then that implies that person’s guilt.

If we are to go to a position of a justice system—which would certainly not be a justice system, it would be a legal system—where a person was presumed guilty until he or she was able to prove his or her innocence, then we are completely transforming the system that we have and going in a direction that is not appropriate in this country and in this day and age. I do not understand how Stephen Franks could have come to that position on that issue. In fact, the right to silence is a very, very important right and privilege that defendants have, and they need to be able to maintain that to the greatest degree possible. Certainly, we should not be proposing any legislation to narrow that, without extremely good research and evidence as to how it will enable and better the legal and justice process to do so.

We are also concerned about the use of cell-mate confessions in criminal cases. Cell-mate confessions are highly prejudicial and of extremely dubious reliability. In the bill it appears that the judge is enabled to make a decision on the reliability of those kinds of confessions on the balance of probabilities. We are concerned that that is not a high enough test. We would like to see greater consideration given to those provisions.

We look forward to hearing from submitters about those provisions. As much as some of us have been lawyers, and perhaps even been in practice for many, many years in this area, after having spent some time in this House it is certainly true that we have got a bit rusty and we need to hear from practitioners and people who are involved daily right now in the court process, criminal and civil, to get a full and clear picture of what is needed in the courts at the moment.

We note the provisions about anonymous witnesses, which look as though they are just carried over from the existing law. However, it does bring to mind the issue raised last year of women who wore the burka, and their right to give evidence wearing a burka. The courts finally ruled that, no, they could not wear the burka and give evidence, and they were required to expose their faces. The Green Party can certainly see the arguments on both sides—the rights of the accused to adjust process, and the ability to assess the veracity of the evidence against him or her, versus the cultural, religious, and human rights of the women who, for whatever reason, feel they are necessary. We can certainly see those two competing interests, so we look forward to some information being brought to the select committee to see what people have to say about that, and whether something about those issues in terms of evidence should also be specifically included in the bill, or whether the provisions in this bill can be modified to deal with that situation as well, in a way that meets those competing issues if at all possible.

We are looking forward to seeing how this bill pans out in the select committee. We very much look forward to hearing from the submitters and we will be supporting this bill at its first reading.

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.

I will take just a brief call to say how pleased I am to see the Evidence Bill finally in front of the House, with the recommendations of the Law Commission picked up. The Minister gave a clear message that the Law and Order Committee has a task before it: it can look at the issues and address them based on the evidence presented to it.

I will speak briefly about a matter of particular concern to me—spousal immunity. Anyone who was at my wedding will know that my husband’s wedding speech was predicated on the basis that the only reason he was marrying me was because of spousal immunity—and, of course, this legislation does away with that. He knew that he would be able to come home, weary from being on his motorbike, and be able to share his guilt with me in the knowledge that I could never be compelled to give evidence against him. This legislation allows for the removal of spousal immunity.

When I spent a period of time as Associate Minister of Justice, I managed to persuade officials to come up with an alternative that would allow spouses, and other partners very close to the individual concerned, to be excused by a judge from giving evidence. So the bill still allows for a little bit of immunity in order to ensure that the relationship is protected and, more important, that the veracity of the information being given to the court is protected, because that is what evidence law is all about.

I welcome the bill. I look forward to its coming to our select committee, and to the very hard work that we will do on it.

As my colleague Dr Richard Worth, an eminent lawyer in Auckland—and I could say a good deal more eminent than some of the other lawyers who have spoken in the proceedings tonight—has said, National is supporting the first reading of the Evidence Bill.

I am concerned to hear that the party that consistently supports the Labour Government, United Future, has such a poor understanding of our civil liberties. One of the reasons why we have these protections, of which Murray Smith seems to be unaware, is precisely that the State is powerful and that people acting for it sometimes abuse their authority. Perhaps it is done with the best of intentions, but they nevertheless do so. Therefore, the law provides citizens with protection. Mr Smith would just throw those protections away with indifference, unaware of the lessons of recent and past history. So when he said: “Let us bring the justice system into the 21st century.”, it was code for: “Let us give more power to the State.”, because that is essentially his plea. I say that we should be very careful of that approach, because our democracy is built on the basis that the rights of citizens are protected. That is literally the foundation of Western democratic societies, and Mr Smith would apparently cast that foundation aside somewhat heedlessly.

One of the other things that comes to mind is the rather unusual reference by the Minister of Justice to the careful deliberations of the Law Commission. I guess he was referring to himself in that as well, because this bill has had an extraordinarily long gestation. In 1989 the Law Commission started work on it. I recall reading its numerous briefing papers and preliminary reports as they came out. The final report was in 1999—10 years later. It is one of those situations that we have become used to with the Minister—he announced things some years ago and then they were announced again, he issued press releases saying that he was getting around to it, he put it in the Queen’s speech, and all of that sort of thing. That is the Minister’s habit. Finally, just a couple of months out from the election, he introduces the bill. I guess that he will have the dubious pleasure of being in retirement during its progress, because a new Minister will be able to consider the deliberations and results of the select committee. He will not be there to do so.

I turn to a couple of particular points within the legislation: hearsay evidence and privilege. One of the things about giving evidence in court is that it is intended to establish the facts from each party’s perspective. By definition, facts are things that people know, which is why we do not rely on hearsay evidence. In a case, a person testifying cannot give a statement of fact. They can give a statement of opinion, but they do not know what actually happened.

One situation brought to mind is the Prime Minister’s statements in the House today. Apparently, she cannot say what happened in relation to what was said 5 years ago. At best she can only say what she believes happened. So there is the odd situation of her putting her reputation on the line and the public being asked to judge it, not on the basis of what she knows she said—she cannot remember it and she has admitted that—but rather on what she thinks she might have said. That is a pretty unreliable situation. Interestingly enough, in that situation—and we are talking about evidence—the evidence actually exists in the form of tape-recordings and contemporaneous notes. I say that, on the basis of evidence, she should produce the contemporaneous information so that this nation knows the truth. It is something that, apparently, United Future wants to know. It is a fair claim.

We deserve to know the truth, particularly from the most important constitutional position in our country, which is that of the Prime Minister. Surely, as a nation, we should be able to know what is true and what is not, and that can be done. So that is a pretty important issue. When we are talking about evidence legislation, we should be able to rely on the truth of what is said, and the Prime Minister needs to understand that.

That matter brings me to the issue of privilege. Legislation protects many of the traditional privileges. One of the privileges, of course, is parliamentary privilege. Members can say pretty much what they like and it will not be challenged. Today the Prime Minister said—with no evidence—that the National Party paid for the Doone’s lawyer. Surely that was an extraordinary abuse of privilege. So when the issue of evidence is being looked at, we expect senior members of the Government to follow those fundamental principles.

I turn to some other issues in the bill. I was intrigued to hear the Green Party talk about the burka. That was an issue on which I had something to say at the time. In giving evidence, it is fundamental that people be able to assess the character of witnesses. Even the judge admitted that. Yet I understood from the Green Party that its belief is, on the basis of cultural sensitivity, we should allow people to give evidence and, in a sense, for that evidence not to be tested.

If one were to take the view that the whole purpose of legal proceedings is to seek the truth—and a fair argument can be made about that—then, surely, the demeanour of the witness is one of the things that both the judge and jury ought to be able to assess. I think that the judge made the correct decision by ruling that the person could not wear the burka. I personally think that the witness should not have been behind a screen.

I conclude on the point that the purpose of this legislation essentially is to codify the law, and to bring into the legislation a series of propositions and positions that have been held in case law and now need to be put into the legislation. That was the purpose and the intent of the Law Commission’s report. It disturbs me that we take so long to implement important Law Commission reports of this nature. This was an important report from the Law Commission. The commission did a huge amount of work on it over a long number of years. I read many of its reports during that time. Yet we do not have a procedure in this Parliament that would properly advance the commission’s important work.

As someone has pointed out, the current Evidence Act is from 1908. For 20 years now, that Act has been the subject of a review. For the health of the law of this land, we need to have a system in this Parliament that would enable Law Commission reports on issues that are certainly not fundamentally party political or in dispute to be passed into law for the health and effectiveness of the law.

💬 Stephen Franks: Where is your sense of mystery? This one shouldn’t be passed until 2008.

That is an intriguing interjection, but I think that it would not be good for the development of the law. This is something that the House needs to pay attention to. We need to find a mechanism, as exists in both Britain and Australia, whereby non-contentious but important legislation can be passed so that we keep the legal tool kit in good repair.

I am very pleased to rise and take a very short call as a former member of the Justice and Electoral Committee.

💬 Darren Hughes: That powerful committee!

That is right. The need for this bill has been anticipated for a very, very long time, and its passage will be the culmination of a lengthy process.

I want to acknowledge the Law Commission, which was very thorough. It spent a decade reviewing aspects of evidence law, publishing discussion papers, and seeking the views of those involved with the justice sector, including a wide variety of community groups, academics, officials, members of the legal profession, and our respected judiciary.

I will close by saying that this bill brings together decades of decisions and reforms of statutes. It is common-sense, practical, forward-thinking, and visionary—just like this Government.

I rise on behalf of the National Party to support the Evidence Bill. I am concerned that we have not yet heard from Mr Fairbrother, who was previously a criminal lawyer. He had a lot of experience in criminal law, and he acted for all sorts of people. It is important, when we are dealing with an issue like evidence, that Labour put up speakers who might know something, rather than speakers who contribute the nonsense we have just heard.

Tonight I will speak about something quite wide ranging. One of the areas I want to deal with relates to the law of hearsay. There are several reasons why the Law Commission might have taken a decade of taxpayer funds to sit around talking about the law of evidence. One of the reasons might be that it is a very difficult matter and maybe it wanted to get it right. I would like to think that is one of the reasons it took so long. We do not go into the area of evidence, and look at a mass of changes in it, without some fear and trepidation.

The National Party does not subscribe to the concepts of Mr Murray Smith from United Future. I am sure he would rather we had trial by ordeal than trial by jury. If we ever needed to have evidence as to what trial by ordeal might be like, then my goodness he gave it to us tonight. Has anyone heard anything like his contribution? It was one of the most out-of-this-world, 17th-century contributions on the law of evidence one could ever hear. Evidence is very, very important. That is why this bill will go to the Justice and Electoral Committee, and that is why, I hope, the Law Commission took a decade to review the area. However, that does not explain why the Minister of Justice has sat on this matter for the last 5 years. I can only think that it was not nearly as important as the Civil Union Bill, or the Relationships (Statutory References) Bill, which stated that marriage, civil union, and de facto are all the same, and which a lot of United Future members supported.

💬 Murray Smith: I didn’t support it.

If the member does not know it, his leader supported it.

One of the areas of evidence, relating to the Family Court and the Employment Court, does not seem to be covered in this bill, as far as I can see. I have thought for a long time that some of the evidence that goes into those courts is a load of garbage. I have seen affidavits put in that are absolute twaddle—a technical term—and nonsense, and I am appalled that some lawyers could take affidavits with that rubbish in them. I have had people to come to me on behalf of other lawyers, bearing affidavits that stated they were frightened of their husbands. When I ask why they were frightened, they reply that they were told to say that at Women’s Refuge. That is the sort of thing that passes for evidence in the Family Court today, and that is wrong. In this country people’s situations can be unfairly prejudiced because of what we would call false “evidence”.

Again, in the Employment Relations Authority, an awful lot of garbage is put in as evidence. I know that the Minister, Rick Barker, as a former trade unionist, might hate to hear it, but the sort of rubbish that passes for evidence in the employment area can be, for example: “So and so said such and such to so and so, and then they told me …”—and that is supposed to be evidence. In situations like that, with that sort of nonsense, it is very difficult for employers or employees to defend themselves—which is something that people like Peter Doone and his wife are having to think about today, as they have been so badly libelled in Parliament.

In relation to the burka, I think it is absolute rubbish to say that we have to have cultural sensitivity in the case of a person who comes here, makes accusations against someone, and then hides behind a veil so that the accused cannot see the accuser’s demeanour. Yet the person who was accused could well have gone to jail.

We tamper with the law of evidence at our peril. I do not view the State as a benign, wonderful State that is there to find the truth; I view the State as an all-powerful, very deadly machine that can be used against individuals at our peril as a free society. I see that that is, in fact, a view held by many of those who have previously practised criminal law—and I see that Mr Fairbrother agrees with me. The State comprises lots of different people, many of whom have abused, and will continue to abuse, their power, whether they be in various bodies of the legal profession, in the police, in the Customs Service, or in any other authority. The fact is that people are people, and some people will abuse their power. We tamper with rules of hearsay and of evidence at our peril.

However, it is very important to note that there are some good, positive parts in the bill. I am very pleased to see that attempts have been made to deal with issues like video evidence and the area where sometimes someone is unavailable as a witness. Privilege is an area that gets quite a lot of mention in the bill. That, of course, relates to the privilege between a legal adviser, or counsel, and his or her client, and also to religious confessions. It does not extend to doctors—a fact that they never believe until they are in court and are told they have to say what happened.

One of my concerns is about complainants in sexual cases. I am very pleased to note that the Government proposes to keep the restrictions on using the previous history of complainants in rape cases—for instance, their previous sexual history—against them. Once, when I was the tender age of 18 and in my first year at law school, I attended a rape trial. I did so at that stage thinking that one day I might like to be a criminal lawyer. Experiencing one rape trial, and seeing what happened under the old law—before the law on evidence in sexual cases was changed—was sufficient for me to know that I could never, as a lawyer, do that to another woman. The way in which that particular woman was treated, and the fact that she was not a virgin at the time of the rape, meant that she had her reputation sullied and muddied in open court, and it said to me that the law had to change. It was, of course, not her previous sexual history that was in doubt; it was the actions on a particular night that needed to be looked at.

Another of my concerns relates to children’s evidence. I do not share the fantasy of the Greens that children do not fantasise. I think that the Greens fantasise, and also that children do. It is very important, as any parent will tell us, that children enjoy fantasising. It is a natural and healthy part of being a child. Some of them still believe in Santa Claus—as I am sure the Greens do.

💬 Peter Brown: Pigs passing by the window.

Mr Brown thinks I am not being fair. I think it is very important that we look at the rules in relation to children and the giving of evidence. I am very concerned about the evidence that has been put to the Justice and Electoral Committee in relation to the trial of Peter Ellis. I am also very concerned about the fact that, again, screens are being used, and not only that they are being used, but that sometimes evidence is being given by people in relation to matters in respect of which it does not always mean that fairness reigns.

The administration of justice is a very, very imprecise science. It is something that does not come easily in a lot of those cases. Sometimes the most awful crimes have been committed, and people want to find the perpetrators. They want to know there is closure on those crimes. Everybody deserves a fair trial in this country, no matter how revolting and heinous the crime. I know it is not a great vote-winner to say things like that, but unfortunately it is the truth. Everybody, even the most despicable person, needs a fair trial.

I have listened carefully to the speeches tonight, and I think that the lawyers who have spoken have indicated that this debate will be a positive one for the Justice and Electoral Committee. Those who are familiar with the art of practising law are aware of some of the subtleties, and they have been expressed tonight.

For example, in relation to the debate about truth being an absolute in the courtroom, it was picked up by Dr Wayne Mapp and Judith Collins that in the criminal law, where the State is the prosecutor, we are really not in a battle about truth but in a power relationship. That is a valuable thing to understand, because that imbalance of power underlies many of our rules on the law of evidence, and most of those rules will still be carried forward in this new Evidence Bill.

That takes me, of course, to the suggestion by Mr Murray Smith that this is a radical change. I do not see it as a radical change to the law of evidence; I see it as a sensible evolution in rules that have been changing gradually over time, piecemeal and bit by bit, both by change in the law and also by thecommon-sense development of the common law. We see the Family Court, which has been applying rules of common sense, when it comes to evidence, for a long time, despite the evidence code. We see the employment and disputes tribunals, which adopt their own rules of evidence. We see the development of the criminal law on propensity; we see the development of the criminal law on documentary evidence; we see the development of the criminal law on reputation. All those matters are carried forward in this bill. Reputation is now related to the truthfulness of the witness, which is an area that has been difficult in the criminal law—ill-defined, and with conflicting decisions as to how the evidence of a certain witness may be attacked on the credibility or the truthfulness of that witness. Those are all dealt with in the bill, and I refer particularly to clause 33, which brings a clear set of rules when assessing the reputation or reliability of witnesses, whether they be for the defence or the prosecution.

This bill expands what is a very good Law Commission report. In Part 4 the bill adds all the evidential rules relating to foreign judgments and foreign laws. Those have not been considered by the Law Commission, but I think the select committee will find that their incorporation in this bill is a sensible extension of that. The bill also adds clauses 104 to 116, which deal with the present laws relating to undercover officers. That practice is well established now, and it seems to be accurately reflected in the bill.

I think this bill is a very positive advance in the practice of law, and it should turn into sensible law. But I urge the select committee to make constant reference in its report to the Law Commission report, so that when the courts come to consider some of the changes in the bill they can go back to Parliament to ascertain its intention, and can hope that Parliament’s intention will reflect that of the Law Commission.

The main test we have now is in clause 7(3), which defines what is relevant: “Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.” Of course, clause 8 is very important, and it is the current law—that a judge may exclude any evidence that is unduly prejudicial to the outcome of the proceeding or that will needlessly prolong the proceeding.

The Law Commission, I think, identified the real issue here. I refer to page 3 of its report, where it states: “The Code relies”—and the code is its draft code, which this bill very much reflects—“on the common sense of the triers of fact and the wisdom of the judiciary who will give them guidance on how to approach the evidence in a given case.”

I think that those who appear in court would accept, as Ms Collins did when she described justice as a science, that it is probably more of an art form. One can apply the rules and the evidence, but the application in each case depends upon a number of factors, including the competence both of counsel appearing and of the judge. It is my hope that the select committee has sufficient time to hear the evidence fully and to listen to all parties, because if this debate tonight has been indicative, then the report that emerges from a select committee that has sufficient time to consider the bill clause by clause will be a substantial report, and one that this House can embrace with some pride.

I conclude my remarks tonight by again going back to the Law Commission report. On page 3, at about line 10, the commission states: “The significant reform proposed by the Code will not achieve its purpose unless it is accompanied by a change in approach by practitioners and the judiciary.” Essentially, the Law Commission is stating that Parliament can change new laws. But unless the law profession rises to the challenge and reads these provisions of the bill, or the law that emerges from the bill, and reads it with the intent and purpose; unless we have judges who are prepared to establish a new culture in the courts, taking heed of some of Ms Collins’ comments about some of the terrible affidavits that are filed in the Family Court and in the lower employment jurisdictions; unless judges are prepared to give some leadership on what really is relevant and what really should be included; and unless lawyers exercise some common sense when dealing with clients—unless that is tackled—then this law will lead to greater litigation while our appellant process sorts out the problems at first instance. But if our Law Society is sufficiently re-educated, and if our judges take responsibility for the culture in their courtrooms, then the moving of this bill into legislation could be significant for New Zealand. I hope it is.

Bill read a first time.

Bill referred to the Justice and Electoral Committee.