Evidence Bill

This is a very large part and it raises a number of issues, so I hope to be able to take a couple of calls. The first provisions of Part 2 deal with hearsay evidence. This is consistent with my theme that the bill amounts to a new dawn in the law of evidence. These provisions are contentious, and were the subject of a number of submissions to the Justice and Electoral Committee.

For example, the Criminal Bar Association was opposed to the new hearsay rules. Members of the association thought that the provisions were wrong in principle and unworkable in practice. They did not think that the admission of hearsay should be expanded further than the exceptions that are currently recognised, and they thought that the bill would create uncertainty. Certainly, some of those comments were replicated in other submissions made to the select committee. Officials from the Ministry of Justice disagreed with them, and so did we.

We note that the Law Commission stated in its report that the overall purpose of the hearsay provisions is to simplify and rationalise the law in civil as well as in criminal proceedings, and that the hearsay rule should operate to exclude evidence only if there are sound policy reasons for doing so. That, really, is at the very heart of it. Clause 18 provides that, henceforth, hearsay will generally be admissible if: “… (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) either—(i) the maker of the statement is unavailable as a witness; or (ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.”

Members should note that there are some changes to the rules from what was contained in the bill when it was originally introduced to the House. The first change, contained in clause 18A, deals with the admissibility of hearsay statements in business records. Following on from submissions, we have gone back, essentially, to the equivalent provision in the Evidence Amendment Act (No 2) 1980.

The second change, which is contained in clause 18B, picks up a couple of the High Court Rules that deal with hearsay, or statements of belief, in certain circumstances. In civil proceedings, hearsay statements and documents related to interlocutory applications, interrogatories, or discovery will be admissible, provided that grounds are given. It is appropriate that those sorts of rules are contained in the Evidence Act and are not simply contained in the High Court Rules or their equivalent.

Clause 18C is a better formulation of what the consequences are for a defendant who does not give evidence in a criminal proceeding and whether that person may offer his or her own statement. Clause 19 provides for a bit of a tidy-up of the requirements of the notice of hearsay in criminal proceedings.

We take the view that these are good changes, that they change the emphasis of the law of hearsay, and that they are workable. We have gone through them very carefully and we disagree with the Criminal Bar Association’s view that they are unworkable. On the contrary, we say that as the legislation is given time to work out in practice, these provisions will be shown to be sensible and achievable rules.

Next I will address the issue of expert evidence. This is an extremely important question. Clauses 22 and 22A deal with the issue of expert evidence. As a general rule, under the existing law, opinion evidence would be inadmissible unless it came from an expert, and clause 22(1) provides for exactly that. It states: “An opinion by an expert … is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding …”.

But it is fair to say that in recent years many proceedings have suffered in terms of cost, and in terms of time and delay, because of what is often referred to as the battle of experts. It is clear law that the expert is not someone who goes into bat for his or her client, but someone who has a duty to the court. That is a very important issue; the person is there to assist the court in reaching its decision. Over the years, regrettably, both in New Zealand and overseas, there have been problems with expert evidence where the expert, rather than recognising that primary duty to the court, has become, as it were, a soldier in the army of a particular party.

As a consequence, both in New Zealand and overseas, there is increasing dissatisfaction with expert evidence and witnesses because, either consciously or subconsciously, they slant their testimony in favour of the party who retains them. There is a perception that in many cases the trial process does not afford a reliable means of adjudicating between groups of what could be called biased experts, and the judges who seek the assistance of these people find that the experts say exactly contrary things. Bearing in mind those concerns, that it why it is important that the select committee has included clause 22A, “Conduct of experts in civil proceedings”, in the bill.

Some years ago the Rules Committee of the High Court introduced a code of conduct for experts. Before a person could give evidence as an expert, that person would be required to sign a document indicating that he or she had read and understood what was expected of himself or herself in the proceeding. Essentially, expert evidence witnesses had to understand the sorts of things I have just been talking about. We have emphasised the importance of this principle by suggesting that clause 22A be enacted in this legislation, and that “experts are to conduct themselves in preparing and giving expert evidence in accordance with the applicable rules of court relating to the conduct of experts”.

Those rules will be re-enacted when the High Court Rules are updated in the next few months, and that code of conduct will continue to apply. But we have put this provision into this bill in order to recognise that there has been dissatisfaction with the behaviour of experts and to emphasise, through this legislation, that experts are expected to conduct themselves to a standard and to know just where their loyalty is to lie.

The next point I will touch on briefly is clause 26, which is an important clause dealing with improperly obtained evidence. As I said in the second reading debate, during the course of our consideration of this clause we had to consider what, if anything, was to be done about the Judges’ Rules. The Judges’ Rules were originally drawn up by the judges of England and Wales and, as I said in the second reading, they were imported into New Zealand many years ago. As we were looking at clause 26 and the possible applicability of the Judges’ Rules, it became apparent that no one really knew which Judges’ Rules were still in force in New Zealand, particularly given the passage of the New Zealand Bill of Rights Act 1990. No one could tell us that or give us a definitive set of those rules.

So it is quite clear that the time has come for the Judges’ Rules to be updated in the light of the passage of this legislation and in the light of recent developments such as the passage of the New Zealand Bill of Rights Act. That is why we referred to it in the commentary. We had considered incorporating the Judges’ Rules into the bill, but we thought that there were constitutional and logistical reasons why we should not. However, we noted the advice from the judiciary, who have assured us that a practice note of current guidelines on the matter will be issued before the commencement of the new Act.

The next part I will deal with—I can whip over some of the other parts reasonably quickly—

💬 Rt Hon Winston Peters: I sure hope so!

I would have thought that the Minister of Foreign Affairs, as a former lawyer, would be riveted by this sort of stuff. I am disappointed that he is not. Subpart 8 deals with privilege and confidentiality, and there are just a couple of points I want to emphasise—I will certainly speak on the definition of “legal adviser”. We played around with that definition to a certain extent. It not only means a lawyer, but also can mean a registered patent attorney or an overseas practitioner, as that person—[Interruption] Is that my second or my third call, Madam Chairperson?

The CHAIRPERSON (Ann Hartley): Third; you can have another one.

💬 Hon Mark Burton: Times flies when you are having fun.

Time flies when you are enjoying yourself. “Overseas practitioner” has also been defined, and I will not go into that definition in any detail.

There are a couple of other matters about Subpart 8 that I would mention. The first concerns clause 54. I mention it, not because there were any great submissions on it, but because there were no submissions on it. However, we decided to retain the privilege for communications with ministers of religion. As the report of the select committee stated, we had a good look at that provision and wondered whether the definition was actually rather too narrow, because in the old days “minister of religion” was a tolerably clear term, but it may not be broad enough to cater for all theological groups in modern society. However, we thought that if we were to broaden the definition set out in subclause (2), we ran the risk of exposing the privilege to abuse. There was some debate about whether this clause should be retained and, if not, whether the general rules on confidentiality would apply, but we decided against making any changes to the provision because we thought we might upset too many people.

Finally, I will mention the privilege against self-incrimination. One interesting issue that arose was whether the privilege against self-incrimination should be available to body corporates. This matter was the subject of a number of submissions to the committee. Having given a lot of thought to the issue, and having borne in mind some submissions that said it should apply, we decided it should not apply. The privilege does not apply in Australia, Canada, and the United States. I think it still applies on a fairly limited basis to corporations in the United Kingdom. But we took the view that the privilege is an individual or a personal right and that it is designed to protect the human rights of an individual. Although an individual company director or officer of a company could rely on the privilege in an appropriate case, we decided that it should not be available to the corporation.

The only other thing I want to say is about clause 59. As originally introduced, the clause dealt with the replacement of privilege in relation to Anton Piller orders. We have broadened that out—as members can see—in the proposed new clause 59, so that it applies not just to Anton Piller orders but also in relation to other types of mandatory disclosure orders in civil proceedings.

Part 2 is a very large part, but I think we have dealt very fairly with the issues. I have tried to deal with the key issues as they have arisen and, as I say, the select committee was pretty happy with the end product.

I rise to speak to Part 2 of the Evidence Bill. It certainly is the more meaty part of the bill and deals with matters of admissibility rules, privilege, and confidentiality, much of which has been already covered by my colleague Mr Finlayson. In relation to Subpart 1, which deals with hearsay, we commonly know hearsay as testimony or documents that quote persons who are not actually present in court, because the person, who supposedly knew the facts, is not in court to state his or her exact words. Therefore, the trier of fact, if you like, cannot judge that person’s demeanour or the credibility of that witness; and, importantly, the other party’s lawyer cannot cross-examine him or her. So we have a basic rule that hearsay statements are not admissible at all, unless and except as provided.

Clause 18(1) is specific as to when hearsay statements are admissible. They are “admissible in any proceeding if—(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) either—(i) the maker of the statement is unavailable as a witness; or (ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.”

Mr Finlayson covered clause 18A in respect of hearsay statements that may be admissible when contained in business records. The reason for this exception is fairly self-explanatory, which is that business records are generally thought to be reliable. They may even have been independently audited. If they are accepted as reliable, then significant savings in time, costs, and court time may be made, rather than the person having to show that each statement in every business record satisfies that reliability test. Clause 18A(1) specifies: “A hearsay statement contained in a business record is admissible if—(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or (b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected … to recollect the matters dealt with in the information he or she supplied; or (c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.”

Subpart 1 also differentiates between the rules for civil and criminal proceedings. Clause 19, “Notice of hearsay in criminal proceedings”, inserts new Subclause 1AA, which provides that no hearsay statement may be offered in evidence unless there has been notice. So there are notice requirements. Clause 19(1) provides that a party who proposes to offer a hearsay statement in a criminal proceeding must provide every other party with a written notice stating the party’s intention to offer the hearsay statement in evidence; and the name of the maker of the statement, if known. That notice must also be accompanied by a copy of the document in which the statement is contained. There are a few other bits and pieces that relate to hearsay statements in criminal proceedings.

In looking further through these subparts, I see that Mr Finlayson has more than adequately, and eloquently, covered them. He has covered Subpart 2, “Statements of opinion and expert evidence”. I have to say that Mr Finlayson is certainly more of an expert in evidence matters than I am or ever will be. Clause 20 relates to opinions, which is a bit like the hearsay provision. A statement of an opinion is not admissible in a proceeding, except as provided for under this part of the Evidence Bill.

Clause 21, “General admissibility of opinions” states: “A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.” Clause 22, “Admissibility of expert opinion evidence”, states: “(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.”

Subpart 3 deals with defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings. Clause 24, “Exclusion of unreliable statements”, relates to criminal proceedings, not civil proceedings. There is a new subclause (2): “The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.” Clause 25 provides for the exclusion of statements that are influenced by oppression. Subclause (1)(b) states that the judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

Clause 26 relates to improperly obtained evidence in criminal proceedings, and that evidence must be excluded. The court in determining whether the evidence should be excluded, can have regard to a list of matters, including the importance of any right breached by the impropriety and the seriousness of the intrusion on it; the nature of the impropriety; the nature and quality of the improperly obtained evidence; the seriousness of the offence; whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used; whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant; whether the impropriety was necessary to avoid apprehended physical danger to the police or others; and whether there was any urgency in obtaining the improperly obtained evidence. So that is a fairly conclusive list to have regard to.

Subpart 5 deals with the veracity and propensity rules. Clause 36, “Propensity rule”, basically means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances. Again, a party may offer that propensity evidence in either civil or criminal proceedings about any person.

Subpart 8 deals with privilege and confidentiality, and certainly there is legal privilege, legal confidentiality, and trust accounts, and such records are privileged. Communication with legal advisers is privileged, if the communication was intended to be confidential and made in the course of, and for the purpose of, the person obtaining professional legal services, or the legal adviser giving such services to the person. It is always interesting to note, in relation to this privilege for legal communications, that it does not actually extend to communication with financial advisers, tax advisers, and accountants but relates only to those professional legal services.

As I said earlier, Part 2 is the more meaty part of the bill. Its clauses will probably be the most thumbed through in due course—not by me, I would have to say. National certainly supports Part 2 of this bill.

I rise to speak to Part 2, and there are a couple of things that I would like to touch upon. Some of them I did briefly address during my second reading speech, but I would like to touch on a couple of points in more detail and on some other matters that I have not already covered in this debate.

The first point, which has been covered to some degree by previous speakers, is around issues such as the exclusion of unreliable statements. The Justice and Electoral Committee made a unanimous recommendation to change subclause (2) of clause 24 so that it now states: “The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.”

I think it is important that that clause is read in conjunction with clause 118, “Judicial directions about evidence which may be unreliable”. In that clause, if a judge is of the opinion that any evidence given may be unreliable, then the judge may warn the jury of the need for caution in deciding whether to accept the evidence or deciding the weight to be given to it.

But in a criminal proceeding tried with a jury, under clause 118(2), the judge must consider whether to give a warning under the subclause I have just referred to whenever certain evidence is given. That includes evidence of a statement made by the defendant to another person that was made while both the defendant and the other person were detained in prison, in a police station, or in another place of detention, among other things. I think that that is important.

That particular subclause was inserted by the select committee—again, unanimously—because of the deep concern that many New Zealanders have around the issue of cellmate confessions. There are cases in this country that currently cause concern, where that has been an issue. We felt that ensuring that the judge must consider whether to give a direction in those cases was appropriate, just to ensure that the jury would bring its mind to bear on the question of reliability around cellmate confessions.

I turn to clause 26, “Improperly obtained evidence”, and again I did touch on this in the second reading. Subclause (2) states: “The Judge must—(a) find, on the balance of probabilities, whether or not evidence was improperly obtained;”—if there is a suggestion that it has been—“and (b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety, by means of a balancing process …”. That issue was the subject of some discussion, because if we are looking at, particularly, breaches of the New Zealand Bill of Rights Act, a balancing act already goes on in deciding whether there has been a breach of that Act. So the fact that there should be a further balancing act to determine whether excluding the evidence is proportionate was an issue of some discussion.

Of course, again, as I indicated in the second reading, this is all predicated on the Shaheed decision and the discussions around that, and whether codifying that decision was what Parliament should be doing. Certainly, my view is that it is not the way to go. When we look at the issue of excluding improperly obtained evidence, there are two purposes for doing that. The first one is to remedy a breach of the rights involved, and there are other ways that those breaches can be remedied. Clause 26(3) states, with regard to this matter: “(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:”.

The other issue is the sanction on the agencies of the State. One of the concerns is that if there is no adequate sanction on the agencies of the State, then there is a temptation for the State to continue to breach the rights of accused persons with impunity because there is no real sanction against it. There is an argument that a civil case can be taken, but anyone who has had the experience of having their rights being breached by the police, for example, will know that that is a fairly strong call to make. Most people—particularly the most marginalised and powerless in society, who are most likely to be subject to such breaches—are often not in a position to take those civil cases. So that is where the exclusion of evidence is an important sanction on the police and other agencies of the State.

Clause 26(3) provides that in deciding whether the exclusion of evidence is proportionate, “… the court may, among any other matters, have regard to the following: …”, and it talks about the importance of the right breached, the seriousness of the intrusion upon it, the nature of the impropriety—whether it is deliberate, reckless, or done in bad faith—the nature and quality of the improperly obtained evidence, and the seriousness of the offence. It also included, in particular, whether the evidence is central to the case of the prosecution. We felt very strongly that that was inappropriate. The seriousness of the offence might be a relevant factor. If someone is charged with a very serious, heinous offence and a technical breach of his or her rights leads to the exclusion of evidence, which means that the person is acquitted, then there is a justice issue there and the injustice of it will be very apparent to the public mind.

But whether the evidence is central to the case of the prosecution is another matter entirely. Regardless of whether we are talking about a minor traffic offence or a serious violent offence, to my mind the fact that the prosecution relies on that evidence to get the conviction makes it even more important that we exclude it, otherwise we create this enormous temptation for the investigating agencies to deliberately breach rights because that is the only evidence they will get. I think that it should weigh in the opposite direction. In any case, the select committee resolved to remove that particular part, and I am very pleased that we did so.

Subpart 6, “Identification evidence”, caused us some discussion because we heard that identification evidence is often the least reliable kind of evidence in court. So the bill provides for formal procedures to be developed and used when providing for identification evidence. Previously, clause 41(2) stated: “If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.”

The select committee changed the burden of proof in clause 41(2) from being “on the balance of probabilities” to “beyond reasonable doubt”, and changed “the circumstances in which the identification was made have produced a reliable identification.”, rather than that the circumstances “were likely to” produce a reliable identification. I think just strengthening up that provision was important, because if there is no good reason for not following a formal procedure, then the procedure should be followed. It is as simple as that. If there is any doubt that not following a formal procedure may lead to a reliable identification, then of course we must exclude that evidence, given the intrinsic unreliability of this kind of evidence. If we were to allow it, again there would be the temptation for agencies simply to forgo the formal procedures because they do not produce the evidence that they want.

One of the provisions that was not changed because there were no submissions on it, if I remember correctly, was protection of journalists’ sources, which is quite curious, given that the media is often very quick to point out these matters. But, nevertheless, we thought that the protections in the bill were adequate for journalists who have promised an informant not to disclose his or her identity, to make it not compellable for them to provide that information. A judge of the High Court may order that that protection be overruled in the public interest, but it is a fairly high hurdle, so we thought that those protections were basically sound. But, as I say, we thought it unusual that no submissions were heard on that.

The other issue that I would like to touch on finally is around evidence of jury deliberations. The select committee, again unanimously, made a recommendation. Previously, clause 72, “Evidence of jury deliberations”, stated: “A person must not give evidence about the deliberations of a jury concerning the substance of a proceeding unless, and only to the extent that, the Judge is satisfied—(a) that the evidence tends to establish that a juror has acted in breach of the juror’s duty; and (b) in the circumstances of the particular case the public interest in protecting the confidentiality of the jury deliberations is outweighed by public interest in avoiding or remedying any possible miscarriage of justice.”

Clause 72 has been changed to: “(1) A person must not give evidence about the deliberations of a jury …”, and that: “… does not prevent the giving of evidence about matters that do not form part of the deliberations of a jury, including (without limitation)—(a) the competency or capacity of a juror; or (b) any conduct of, or knowledge gained by, a juror that is believed to disqualify that juror from holding that position.” It makes a clear distinction between the deliberations of a jury, and other matters. It is quite right that there should be the ability to provide evidence if the competency or capacity of a juror is at question, or if a juror’s conduct or knowledge means that he or she should be disqualified. That evidence should be available to be looked at.

But we have also included, in clause 72(3), that: “(3) [Subclause (1)] does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.” This is important, because jury decisions are pretty much considered sacrosanct within the criminal justice system. But we thought it was also important that, in exceptional circumstances—and this would not be something that would be widely used—those deliberations should be able to be subject to some examination, again because of the real concern that currently exists in the public and among some members of this House around some convictions that continue to cause disquiet in people’s minds.

So although there have been some interesting recommendations made about agencies that we might set up to review those cases that raise concerns around miscarriages of justice, I think those recommendations should be looked at very seriously by this Parliament. We thought that just allowing in these exceptional circumstances for jury deliberations to be subject to some scrutiny was an important and useful thing.

That is a taste of just some of the things we covered in the select committee. Some of the things we covered were well outside my expertise, and I am still not sure I fully understand what an Anton Piller order actually is, although we spent many hours discussing that. Nevertheless, I think the select committee did a good job and I also welcome the Minister’s Supplementary Order Paper.

The question was put that the amendments set out on Supplementary Order Paper 79 in the name of the Hon Mark Burton to Part 2 be agreed to.

Amendments agreed to.

Part 2 as amended agreed to.

Part 3 Trial Process