Evidence Bill

I will take just a brief call. I referred in my earlier remarks to the Supplementary Order Paper’s reference to clause 88(1), dealing with cross-examination duties. As I noted then, this is perhaps the other significant matter dealt with in the Supplementary Order Paper, along with the minor technical changes, etc. It has been amended effectively to include explicitly in subclause (1) that the duty to cross-examine arises when there are significant matters that are relevant and in issue, that contradict the evidence of the witness, and that the witness can reasonably be expected to give admissible evidence on. I think it is fair to say that the requirement added by this amendment will prevent the party who is cross-examining from having to ask questions about which there is actually no dispute. It is arguable that this requirement is implied already in the clause, but I think the amendment clarifies, and therefore prevents, any possible argument about the scope of the duty of the clause.

I am happy to follow on from the Minister, the Hon Mark Burton, on this issue, and to say that we agree with Supplementary Order Paper 79 in his name. Perhaps it is worth spending a little time on this issue, because it is incredibly important. Clause 88 deals with cross-examination duties. When I looked at the Supplementary Order Paper I also went back and looked at my notes and at the very helpful materials provided by the ministry to the Justice and Electoral Committee, because this matter had been the subject of a number of submissions—for example, from the New Zealand Law Society. The ministry noted that the bill is intended to reflect existing law in practice. It clarifies that the duty is limited to questioning a witness about those parts of the cross-examiner’s case that contradict the evidence of the witness.

It is important to note that the bill and the New Zealand Law Society agree as to the scope of the clause, but just disagree on how to express it. That is why this clause has been through various permutations. Everyone is agreed that the current law is that any counsel has a duty to put his or her client’s case to a witness who is called by the opposing party. The rule is designed to ensure trial fairness. If the court, particularly—and this is often called the rule in Browne v Dunn—is to be asked to disbelieve a witness, the witness should be cross-examined. Cross-examination of witnesses in this manner is intended to ensure that the witness is able to address and explain such evidence, and that the other party is able to call evidence against any contradiction. So it ensures that battle is joined on key evidential matters. I think it is fair to say that everyone was in agreement about what the current law is and what the Act should say, but it became a question of terminology. I know that late last week a number of concerns were raised about whether the formulation that the select committee reached really did do the job properly or, as the Minister said, possibly gave rise to a number of concerns. That is why the wording has been changed, so we are very happy to go along with that.

That issue is probably the most important one that needed to be addressed in Part 3, which deals with trial process, but there are a couple of other matters in this part that I want to address. Subpart 1 deals with eligibility and compellability. Initially there was going to be no clause about bank officers and the evidence that they are sometimes required to turn up and produce: banking records, bank statements, old cheques, and those sorts of things. But having heard the submissions from various interested parties, we decided to include a new clause 70A. All that does is to insert the provision set out in section 47C of the current Act into the bill. It provides that bank officers cannot be compelled to produce banking records.

An important discussion ensued over clause 71 as to whether persons who are in a close relationship with a defendant should be excused from giving evidence. We gave a great deal of thought to that particular issue, and, having heard from various submitters, we concluded that this clause, which allows persons in a close relationship with the defendant to be excused from giving evidence for the prosecution, should be deleted. I think the report of the select committee sums up the considerations. We recognise that sometimes for people in this position there can be grave difficulties and great problems when they come to give evidence against someone with whom they are in a close relationship. But those concerns were outweighed by, first, the danger that the absence of compulsion would give even greater encouragement to complainants to decline to give evidence because of, for example, intimidation or guilt at giving evidence against members of their family; secondly, the arbitrariness of determining what constitutes a close relationship, which is a difficult definitional issue on occasion; and, thirdly, as the report says, the anomalous consequences that would flow from the hearsay provisions.

I can assure the Committee that that clause was the subject of a great deal of consideration and advice from the special adviser, Mr Fisher. At the end of the day, we decided that it should go.

💬 Hon Harry Duynhoven: Why would we not have bank records made available?

Bank records will be available, in answer to the member for New Plymouth. The issue is whether a bank officer should be compelled to turn up in court, or whether those records can just go in as part of the record, for example. However, if a question arose, for example as to whether the record had been altered, or if there was some other kind of special reason, clause 70A provides that a contrary order may be made by a judge.

The next issue on compellability that I wish to address, very briefly, is that of the evidence of jury deliberations, and Mr Tanczos has addressed that point very well. Again, I say it is intended—for the benefit of those who may be nervous about the passage of clause 72—that the bill should reflect the current law. Evidence regarding matters outside the deliberations, such as matters regarding the competency or the conduct of a juror, should be allowed. Other kinds of evidence will be allowed if the test—and it is a very, very stringent test—set out in subclause (3) can be satisfied. I doubt whether many cases at all will come into the exceptional category.

I do not intend to talk about Subparts 2 or 3, but I want to say something about Subpart 4, which concerns the questioning of witnesses. Again, it was the subject of submissions, particularly from the Bar Association. Clause 79 sets out the basic rules about the way that evidence is to be given. As subclause (1) says, the ordinary way for a witness to give evidence in a civil proceeding, for example, is orally—viva voce, as it is called—in a courtroom in the presence of a judge and a jury, if there is one.

Some questions have arisen in recent years about the practice on the provision of what are called written briefs of evidence, which was first developed about 20 years ago and has become an established procedure of both the High Court and the District Court. In order to speed up court proceedings, rules now provide that within a certain time the plaintiff and the defendant are to file and serve on the other side briefs of evidence—written statements of what they are going to say. Then, when it comes to the trial, they will read out those briefs of evidence, sometimes answer questions orally on any supplementary matters, and then be made available for cross-examination. But it is fair to say that the practice, although it has some advantages, adds large costs to litigation. It is also an unfortunate by-product of the practice that sometimes—and I have seen this myself—when people give evidence in court, it is apparent that they are reading their statement of evidence for the first time or that their lawyer has drafted the brief of evidence for them. That is an odious practice, and it needs to be stamped out.

It is because of the cost and the delay factors that two representatives of the Bar Association appeared before the select committee and submitted that the current practice about written briefs in civil cases should be abolished, and that in civil cases we should go back to viva voce evidence. In other words, the person should simply stand in the witness box and give evidence orally. I imagine that, given the passage of time since the development of the written briefs procedure, most lawyers would be incapable of leading evidence in that way. Hopefully, when this legislation has been passed and lawyers learn what the rules are, we may be able to get an improvement in the standard in that area, but, certainly, I have my doubts at the moment about that.

What is the purpose of my statements about those matters? It is really to address subclause (2) of clause 79, because although we say that the rules governing written briefs are within the purview of the Rules Committee—and indeed the Rules Committee is looking at the issue now—none the less it is an important point to emphasise in the legislation that any affidavit or written statement can be permitted in evidence, but that it has to be the personal statement of the deponent or maker and must not contain a statement that is otherwise inadmissible under the legislation. I think that should serve to remind practitioners that when they are doing these things—the briefs of evidence—the evidence is to be that of their witness, and they are not to prepare statements of evidence based on what they think the witness may think the evidence is. That kind of practice, as I said, is odious and needs to be stamped out.

It is fair to say—and I hope the Rules Committee will look at this—that for some years written statements have also been tendered in Australia as evidence-in-chief, but that many judges require oral evidence to be led in chief on selected issues such as, for example, those where credibility is an issue or may be decisive, as in the case of disputed conversations. So in Australia a statement is tendered with parts dealing with important credibility issues struck out, and then leave is given to lead oral evidence on the struck out parts. What happens in New South Wales, for example, is a hybrid approach. It is thought to combine the time-saving advantages of written briefs with the need to see and hear the witness on important credibility questions. I hope that in New Zealand we end up with that kind of procedure, as well.

Those are the points I wanted to make. I have dealt with clause 88 and with witnesses’ briefs. The rest of Part 3, dealing with trial process, is largely unexceptional and essentially enacts what is currently the law.

The question was put that the amendments set out on Supplementary Order Paper 79 in the name of the Hon Mark Burton to Part 3 be agreed to.

Amendments agreed to.

Part 3 as amended agreed to.

Part 4 Evidence from overseas or to be used overseas

The question was put that the amendments set out on Supplementary Order Paper 79 in the name of the Hon Mark Burton to Part 4 be agreed to.

Amendments agreed to.

Part 4 as amended agreed to.

Part 5 Miscellaneous