Evidence Bill

I will take a brief call on Part 1, “Preliminary provisions”. There are about five points that I wish to make. The first deals with the definition of “document”. I am pleased that the Minister has proposed a Supplementary Order Paper to provide for a more general definition of “document”, because I always thought that the definition of “document” in clause 2 as drafted had the potential to be construed in a narrow manner. The definition contained in the Supplementary Order Paper is not quite the same as the definition of “document” in the equivalent High Court Rule, but I none the less think it is an improvement, and the National Party will support the Supplementary Order Paper in that regard. It is extremely important, in this kind of area, that there be a very clear and general definition of the term “document”.

The Justice and Electoral Committee has made a couple of other changes to the definitional clause. I refer simply in passing to the definition of the word “court”, the definitions of “investigative questioning” and “official questioning”, and the definition of “proceeding”—which, again, is not the same as that contained in the High Court Rules. But those definitions are of relatively minor importance in the overall scheme of things.

Clause 5 deals with the application of this legislation, and subclause (2), which was itself the subject of some minor amendments, makes the very important point that if there is any inconsistency between the legislation and any provisions of rules of court—being rules made by the High Court Rules Committee for the courts of New Zealand—then the provisions of this legislation are to prevail. Of course, there can be a clash, because the rules committee, which is mandated under section 51C of the Judicature Act to make rules governing the practice and procedure of the courts of New Zealand, sometimes makes not only rules of evidence but also rules of substantive law. Sometimes there will be an inconsistency, and this clause makes it clear that the legislation is to prevail.

It is important for me to refer to clause 6, which sets out the purpose of the Act, because the select committee made two changes, both of which are important. The first is the insertion of paragraph (ab). Clause 6 now states: “The purpose of the Act is to help secure the just determination of proceedings by— … (ab) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; …”. That theme will be developed in the Committee stage when, for example, we look at clauses like clause 26, “Improperly obtained evidence”.

The second provision we added to clause 6 was paragraph (e), which provides that another purpose of the legislation is to enhance access to the law of evidence. Some people said that there was no need for a bill; that the work of the Law Commission was in vain because the judges knew what the rules were and, by and large, the lawyers did; and that it could be left to the common law. But one of the reasons why I am so pleased this legislation is shortly to be enacted is that it will enhance access to the law of evidence.

I recall years ago going to a course in Boulder, Colorado. What was immediately apparent from that course was that the American lawyers always had with them for the purposes of the exercise the Federal Rules of Evidence. They knew those rules of evidence much better than, I think, New Zealand lawyers know ours. I think that New Zealand lawyers, and sometimes judges, do not know the rules of evidence well enough, and one of the reasons is that the laws of evidence are not easily accessible. So it is extremely important that this legislation be passed in order to make the law of evidence accessible.

I will make two points about clauses 10 and 12. Clause 10 deals with the interpretation of the Act, and it follows on from the point I have just made. This really is a major change to the law of evidence. As I said in my second reading speech, this bill is the first comprehensive, substantive reform of the law of evidence for 100 years. So it is important, after all the work that has been done by the Law Commission, the ministry officials, and the select committee, that the legislation itself will be the starting point for all inquiries. The existing common law will continue to remain, but, as clause 10(1)(c) states, only to the extent that the common law is consistent with the provisions of this legislation, and consistent also—importantly—with the promotion of its purpose and principles.

The second point that needs to be made concerns clause 12. I am sure that sometimes, as always happens, lawyers will find that this legislation does not cover everything, notwithstanding the fine work that has been done on it. Clause 12 deals with what is to happen where evidential matters are not provided for. Again, if one faces that situation, the courts will be able to make a decision on a particular question having regard to the purpose and the principles of the legislation set out in clauses 6 to 8 and, to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to decisions to be taken, one must have regard to the common law.

So it is important that all lawyers and judges realise that when this legislation comes into force, it will be a new regime; it is not a question of this legislation tacking on to the common law a couple of new principles. The starting point for inquiry on any evidential matter will be the legislation, and the common law can continue to apply in the circumstances I have outlined.

The final point I will make about the Evidence Bill concerns clause 11. A couple of minor changes that have been made to it simply emphasise the point that the inherent jurisdiction of the court and the implied powers of inferior courts are not affected by the passage of this legislation, except to the extent that the legislation provides. Sometimes there will be situations where, for example, the High Court, in reliance on its inherent jurisdiction, will want to make a ruling in relation to a particular matter, and clause 11 provides that the powers of the court are not so affected. With those preliminary comments in mind on Part 1, I can rest my case and await to address the Committee on Part 2.

I just want to take a brief preliminary call and thank the member Christopher Finlayson for his comments. He has covered the key issues of Part 1, including the relevant parts of the Supplementary Order Paper. As he indicated, although the Supplementary Order Paper generally has relevance to each part of the bill, and proposes essentially minor changes—correcting errors, omissions, and so on—his comments on this part relating to the definition of “document” are very much relevant. I take this opportunity to refer to what is, perhaps, the other significant part of the Supplementary Order Paper, which is in respect of Part 3 and refers to cross-examination of duties. Perhaps they are the two significant aspects of the Supplementary Order Paper.

I take the opportunity to echo comments made at an earlier stage. Firstly, I acknowledge the Law Commission’s good work over many years, and that of ministry officials. Most recently, and in particular, members of the Justice and Electoral Committee and the subcommittee, including the member who has just resumed his seat, have done outstanding work. That work is long overdue. It will serve the interests of simplifying and drawing together law of evidence into one place, effectively, from a functional point of view, and will certainly serve the interests of all New Zealanders over the years to come.

With those opening comments I look forward to continuing the progress of this bill through the House.

Thank you, Madam Chairperson, for allowing me to take this call. I must say that I am absolutely delighted to take a call on the Evidence Bill—on Part 1, in particular. I was interested in the explanatory note of the bill, which stated: “In 1989 the Law Commission was given terms of reference by the Minister of Justice to make the law of evidence as clear, simple, and accessible as practicable,”. As one who studied the law of evidence some 30 years ago, I have to say it was neither clear nor simple nor even very accessible, even in those days. Having not appeared in court for some 26 years, I have to say that the law of evidence is not really very much easier, either.

This bill has been a long time in the making. I too congratulate the subcommittee of the Justice and Electoral Committee on having the patience, the tenacity, and the ability to wade through the current evidence complexities and to tie them into a comprehensive, codifying, and hopefully simpler bill.

To reiterate on the current situation, and by way of introduction, evidence law is largely judge-made, and the statutory provisions that deal with evidence are contained in a number of statutes. Evidence law has been reformed on a piecemeal basis since about 1908, and issues have been responded to reactively as they have arisen. The explanatory note of the bill was rather descriptive: “The Evidence Bill brings the current mosaic of case law and statute into one comprehensive regime.” This bill’s fundamental principle is that all relevant evidence is admissible unless there is some reason to exclude it—for example, if it is irrelevant, if its probative value is outweighed by its prejudicial effect, or if it would needlessly prolong any proceedings.

It is indicative of the complexity of this area, firstly, that my colleague Mr Finlayson finds it so intriguing, but, secondly, that the Law Commission spent a decade reviewing aspects of evidence law, publishing discussion papers, and seeking the views of those involved with the justice sector. This legislation is hugely technical, but it is also hugely important, and it is pleasing to note that it has been dealt with in a non-partisan way.

I turn to Part 1, which is one of the shorter parts. Mr Finlayson has already mentioned some of the definitions in the interpretation clause. The definition of “document” will hopefully be amended by Supplementary Order Paper 79. The new definition is fairly self-explanatory. It will include any material, whether or not it is signed or otherwise authenticated, that bears symbols, images, or sounds, or from which symbols, images, or sounds can be derived. The point about definitions is that they have to be able to foresee what is happening in the future. With technology advancing as quickly as it is at the present time, the definition of “document” does have to be very, very wide. It has to take into account future technology. In that regard, the Supplementary Order Paper will amend the definition of “document” to include information that is electronically recorded or stored, and information derived from that information.

One of the cornerstones of evidence law is, of course, the hearsay rule. That is included in the interpretation clause and further referred to in clause 17, which comes under Part 2. The basic rule and fundamental premise of evidence is under clause 7. Subclause (1) states: “All relevant evidence is admissible in a proceeding except evidence that is—(a) inadmissible under this Act or any other Act; or (b) excluded under this Act or any other Act.” Subclause (2) is the corollary: “Evidence that is not relevant is not admissible in a proceeding.” There is further provision, in clause 9, that evidence that is not otherwise admissible, may be admissible by consent of the parties.

The question was put that the amendments set out on Supplementary Order Paper 79 in the name of the Hon Mark Burton to Part 1 be agreed to.

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Admissibility rules, privilege, and confidentiality