Evidence Bill

I move, That the Evidence Bill be now read a second time. This bill was introduced in May 2005 and referred to the Justice and Electoral Committee for consideration. I thank the select committee for its work in considering this bill, which is over 200 clauses long and covers many technical areas of evidence law. In particular, I thank the subcommittee of Russell Fairbrother as chairperson, Chris Finlayson, Richard Worth, and Nandor Tanczos, who have been considering the bill with their specialist adviser, the Hon Robert Fisher QC.

The committee has recommended a number of amendments to the bill to enhance its operation. The bill’s proposals are generally based on the 1999 report of the Law Commission, which spent 10 years reviewing the law of evidence. The purpose of the review 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. I will now comment on some of the amendments recommended by the Justice and Electoral Committee. The recommended changes cover issues relating to both the trial process and the rules governing the admissibility of evidence.

Clause 6 sets out the purpose of the legislation: to help secure the just determination of proceedings and specify how the just determination of proceedings is to be attained. The Justice and Electoral Committee has recommended the inclusion of two additional matters in clause 6. The first of these matters is to specify that the purpose of the bill is to enhance access to the laws of evidence. The bill brings together the current mosaic of statute and case law into one comprehensive scheme. The second additional matter is a reference to the importance of the New Zealand Bill of Rights Act 1990. I consider that these additional matters will enhance the bill. The reference to the New Zealand Bill of Rights Act requires legal practitioners to have regard to the rights in that Act. The committee recommended that some provisions in the High Court Rules be included in the bill. It was considered that these matters were more appropriately dealt with in legislation. Consolidating the laws of evidence so they are in one location is consistent with the objectives of the bill.

The committee recommended that clause 8 be amended. The amendment expressly requires a judge to take into account the right of a defendant to offer an effective defence when considering whether the probative value of evidence is outweighed by the risk that the evidence would have an unfairly prejudicial effect on the accused. The committee considered this amendment would give more emphasis to the rights in section 25 of the New Zealand Bill of Rights Act 1990.

The committee recommended changes to clause 31, which included an amendment to clause 31(2) to limit the scope of rebuttal evidence for which previous statements are admissible. The committee considered the exception in the bill, as introduced, to be unworkable and too broad. The committee also recommended that clause 31(3)(b) be amended so that a previous statement of a witness is admissible only if that witness cannot recall the information it contained. The amendment to clause 31(2) was supported by many of the submissions provided by the law practitioners, and the effect of the change is supported as it provides greater clarity. The effect of the amendment to clause 31(3) is to make it clear that the rules governing the ability of a witness to refresh his or her memory is dealt with in relation to the use of documents whilst giving evidence, which is covered elsewhere in the bill. These amendments are agreed to.

The committee recommended that clause 40 be amended to provide that no evidence can be given, and no questions can be put, relating to the sexual reputation of a complainant in sexual matters. The committee considered that any reference to a person’s sexual reputation was irrelevant and should not be admitted. The drafting is also amended to be more consistent with the drafting of the Law Commission in respect of evidence of sexual experience with a person other than the defendant. This approach was supported in the submissions.

The definitions of a “legal adviser” and “professional legal services” are also amended. The term legal adviser has been simplified now and includes reference to a lawyer as defined under the Lawyers and Conveyancers Act 2006. The committee recommended an amendment to allow clients to claim privilege in respect of legal advice or advice concerning intellectual property from professionals in Australia. There is also an amendment to have an Order in Council process to recognise other countries whose lawyers and patent attorneys can be recognised for the purposes of privilege. These amendments have come about as a consequence of the public submission process. There were concerns expressed that privilege should be extended to cover overseas legal advisers to ensure that legal advice provided to overseas clients continues to be protected against discovery. This was particularly the case for patent attorneys whose everyday practice had a significant international component.

The committee sought to amend clause 72 to provide further guidance as to when a person may give evidence about jury deliberations. The committee considered that evidence about jury deliberations should be allowed if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given. Evidence regarding a jury’s deliberation has, in general, been inadmissible. The committee’s approach was to strike a balance between maintaining the sanctity of jury deliberations and ensuring that jury deliberations remain robust and do not lead to miscarriages of justice in extreme situations. However, the committee was of the view—which is a view that I share—that such evidence should be admissible in exceptional cases where there are compelling reasons to allow that evidence to be given.

The committee was also unanimous in recommending that the bill include a provision that would require a regular review of the workings of the Act to see whether it is working effectively, or whether certain provisions require amendment. It was considered that such a review should take place every 5 years and that the body charged with reviewing the Act should be the Law Commission. I agree with this recommendation.

The bill draws together common law and statutory provisions relating to evidence in one comprehensive scheme. The bill will replace most of the existing evidence law on the admissibility and the use of evidence in court proceedings. Evidence law is largely judge made, comprising decisions that are made in response to the circumstances of particular cases. The statutory provisions dealing with evidence are contained in a number of statutes and they have been reformed on a piecemeal basis, responding to issues as they arise. Resulting complexity and inconsistency in law of evidence results in undue legal argument, expense, and delay in proceedings to accommodate arguments over issues of admissibility. The Evidence Bill brings the current mosaic of statute and case law into one comprehensive scheme. I commend the bill to the House.

Perhaps it is a sad reflection on me, but I have to say that working on the Evidence Bill has been the most enjoyable parliamentary experience I have had to date. As I say, maybe it is a sad reflection on me. I want to begin by acknowledging the excellent chairmanship of the subcommittee by Russell Fairbrother and to say how much I enjoyed working with him, with Nandor Tanczos from the Green Party, and with my great colleague Dr Richard Worth. The Minister was kind enough to mention the work of the subcommittee and also the work of the special adviser. I thought it was a very good idea to have a subcommittee of the Justice and Electoral Committee to focus on this bill, and I thought we worked pretty well. I also want to acknowledge—and I will say more about this at the third reading—the huge contribution made by the members of the New Zealand Law Society who appeared before the subcommittee, members of the Criminal Bar Association of New Zealand, and officials from the Ministry of Justice.

For someone who has practised law for 25 years, working on the law at the beginning stages of the process was a most enjoyable and challenging exercise, and as we come to the Committee stage there is much I will have to say about particular provisions, some of which the Minister has mentioned in his second reading speech. In my speech I want to address some of the key issues that we had to face and I particularly refer to five matters.

The first concerns bringing rules that had originally been prepared and promulgated by the Rules Committee across to the bill. The Rules Committee is a body established under section 51C of the Judicature Act 1908 and it is responsible for the practice and procedure of all the courts of New Zealand. In order to regulate the procedures of the courts—particularly the High Court—it makes High Court Rules. These are brought before the Regulations Review Committee, then take effect as regulations. Sometimes, however, the Rules Committee goes beyond its ambit to regulate the practice and procedure of the court and sometimes it makes evidential rules. Perhaps this is not surprising, but we have brought together in this legislation various clauses that originally appeared as rules of the High Court.

I particularly refer, for example, to the new clause 22A, which refers to the code of conduct for experts in civil proceedings, and to clause 18B, which allows hearsay in documents relating to applications, discovery, or interrogatories in civil proceedings. We felt that these sorts of rules properly belong in the Evidence Bill rather than in the High Court Rules and that they have to receive their imprimatur from the Evidence Bill.

A second very interesting issue that arose and was the subject of a great deal of work by Hugo Hoffmann, parliamentary counsel, concerned clause 26, which deals with improperly obtained evidence. We spent some time debating whether the Judges’ Rules should somehow be incorporated into this clause. The Judges’ Rules were originally promulgated by judges in England and brought out to the colonies many years ago. They deal with circumstances where judges will rule that there has been some unfairness in the obtaining of evidence, such as to mean that that evidence should not be received.

Try as we might, we had great difficulty finding out what the current Judges’ Rules are, given the passage of the New Zealand Bill of Rights Act. Indeed, we asked several people who appeared before us, we looked up texts, but we could never find a definitive, up-to-date set of the Judges’ Rules. So our initial inclination was to try to incorporate in the body of clause 26 what we understood to be the Judges’ Rules, as set out in that well-known criminal text Adams on Criminal Law. But that gave rise to a great deal of concern that, in actual fact, we might be enacting superfluous material.

So at the end of the day we think it would be a very good idea—and it is referred to in the commentary, and it is very important that I read this into Hansard—if the judges, or the Chief Justice in particular, were to issue a practice note of current guidelines on the issue of Judges’ Rules and that it is agreed that this will be issued before the commencement of the Act. It is wholly unsatisfactory that practitioners defending criminal cases, when dealing with issues of improperly obtained evidence, may know that there are Judges’ Rules in existence but no one knows exactly what they are or what their scope is. So the Chief Justice will issue a practice note dealing with the existing Judges’ Rules prior to this legislation coming into force.

The third issue I want to touch on concerns clause 54. We actually spent quite some time looking at the issue of the privilege for communications with ministers of religion. There was a school of thought that said this privilege should no longer subsist, but that the general law of confidentiality should deal with communications between a minister of religion and a penitent, for example. But at the end of the day there had been no submissions on this clause and we decided that we would not make any changes to it, although there is a school of thought that says that, as drafted, it is rather narrowly based and does not take into account other forms of spiritual guidance that people may seek in the course of their daily lives.

The fourth issue I wanted to deal with very briefly concerns clause 79, which deals with the questioning of witnesses and the ordinary way of giving evidence in criminal or civil proceedings. I particularly want to focus on civil proceedings, because the traditional way in which one gives evidence these days in a civil proceeding is to file what is called a written statement, or brief of evidence, in advance of a trial. The person giving evidence will read that evidence out and then be subjected to cross-examination.

The New Zealand Bar Association made a very powerful submission to the committee about the desirability of going back to the old practice of viva voce evidence being given by witnesses in civil proceedings because of the abuses that occur with briefs of evidence that, largely, are prepared by lawyers for their clients. There have been occasions where I have seen people read out briefs of evidence and they did not understand what they were saying or they could not pronounce the words. So we have added a new subclause (2) to clause 79 specifying that any statements made have to be the personal statements of the maker and must not contain statements that are otherwise inadmissible under the legislation.

The fifth issue, which was touched on by the Minister, concerns periodic review of the legislation. This is post-legislative review. We decided that, given this is the first time in 100 years that there has been a comprehensive reform of the Evidence Act, we have to make sure that there is a mechanism in the legislation to allow for periodic review, and the Minister has summarised it perfectly well. The idea is that there be a regular review by the Law Commission, with the first one to take place as soon as practicable after 1 December 2011, and then on at least one occasion during each 5-year period after that date. We chose the length of 5 years for the first period to ensure that the law could become known by practitioners and that the rules could be developed by the courts. Then, in 5 years’ time, we will look at it again.

In conclusion, the subcommittee worked very well and I again pay tribute to the chairmanship of Mr Fairbrother. There were good submissions and excellent discussion over many hours. I believe that the resulting work product is very good. I very much look forward to the Committee stage, when we can go through the bill, part by part, and look at some of the matters that I have glossed over rather superficially in this second reading. At the end of the day I believe that this reform will improve the quality of civil and criminal litigation in New Zealand. The reform is overdue, but I am delighted that it is finally occurring.

Kia ora, Mr Deputy Speaker, kia ora tātou katoa. One of our favourite sayings, which this House may well have heard on a number of occasions, is “Nāu te rourou, nāku te rourou ka ora te iwi”—through a united effort, our people will prosper. As we see it, the Evidence Bill does exactly that. It brings together decades’ worth of volumes of judicial decisions and reforms, all relating to the concept of evidence, and draws them into one comprehensive scheme.

I see that the bill also follows the recommendations of the Law Commission, a body that has earned considerable credibility for its ability to provide independent and systematic review, reform, and development of New Zealand law. In 1989 the Law Commission was asked to examine the statutory and common law that governs evidence given in proceedings before courts and tribunals, and to make recommendations for reform. In that regard I want to mihi and acknowledge the current Law Commission: the Rt Hon Sir Geoffrey Palmer, Dr Warren Young, Helen Aikman QC, and the Hon Justice Edward Taihākūrei Durie, of Ngāti Kauwhata and Rangitāne.

The Law Commission is honour-bound, in making its recommendations, to “… take into account te ao Maori (the Maori dimension) and shall also give consideration to the multicultural nature of New Zealand society;”. I give that context to explain that because of that transparent and explicit commitment to consider te ao Māori, the 10 years of research and consultation undertaken by the Law Commission on the Evidence Bill therefore give its recommendations all the more weight. We also acknowledge the role of the Māori advisory committee, which assists in facilitating consultation with Māori on the identification of projects to advance te ao Māori, and to encourage the reflection of te ao Māori in the work of the commission.

With such a strong basis for examining the relevant statute and case law about evidence, I ask members to let me turn to some of the detail of the bill in the time we have left—and, obviously, we will not cover all of it. As members may or may not know, I am not a lawyer. But the Evidence Bill promotes some key concepts that the Māori Party totally endorses. There are concepts such as promoting fairness to parties and witnesses, protecting rights of confidentiality, and avoiding unjustifiable expense and delay.

We are rather intrigued by the proposal for facts to be established by the application of logical rules. Well, what sort of evidence could any court hear without it being logical? That is the question we would ask. This is where the revelation from the Law Commission is so startling. The Law Commission report states that the reforms proposed by the code will not achieve their purpose unless they are accompanied by a change in approach on the part of practitioners and the judiciary. In other words, the radical reform must be that practitioners are now to apply common sense to determining what is relevant, and what should be included. What sort of sense did they apply before? That is the question we ask.

💬 Christopher Finlayson: You’d be surprised.

Ha, ha! In line with this new common-sense approach, it was very heartening to see the amendments proposed by the Justice and Electoral Committee, which are exactly that. Firstly, the hearsay rule is amended to provide that a party that intends to offer hearsay evidence must give written notice to the other party, setting out why the evidence is being admitted, its applicability, and the circumstances that provide a reasonable assurance that the statement is reliable. We believe that that is very sensible. Secondly, there is the removal of clause 33(3)(f), which refers to a person’s reputation for being untruthful. It is common sense, we would have thought, that a person’s reputation is irrelevant, and should not be considered, when assessing the veracity of his or her evidence. Thirdly, clause 40 is amended to provide that no evidence can be given, or questions put, relating to the sexual reputation of the complainant in cases involving sexual matters. The committee considered that any reference to a person’s sexual reputation is irrelevant and should not be admitted.

The Māori Party also supports the recommendation from the select committee that provides for judges to recognise the rights affirmed in section 25 of the New Zealand Bill of Rights Act 1990. I think it is important to revisit some of those fundamental rights: the right to a fair and public hearing by an independent and impartial court; the right to be tried without undue delay; the right to be presumed innocent until proved guilty according to the law; the right not to be compelled to be a witness or to confess guilt; the right, if convicted of an offence, to appeal according to the law to a higher court against the conviction, against the sentence, or against both; and the right, in the case of a child, to be dealt with in a manner that takes account of the child’s age. Those are basic fundamental rights—the rights of a democratic justice system. We are also very interested in the new restrictions that have emerged on the right to remain silent so as not self-incriminate, which is to be available only to those who face prison sentences.

Debate interrupted.

The House adjourned at 10 p.m.