Evidence Amendment Bill

I would like to make my first contribution in respect of the Minister’s Supplementary Order Paper 188, which amends clause 26 of the bill. The Supplementary Order Paper makes three changes. I am not going to talk about the changes to clause 16 or clause 35. They seem pretty clear and uncontentious. I do want to just check that my understanding is right in respect of clause 26(2), which inserts new section 90(7) into the Evidence Act. This concerns previous consistent statements of a witness. It is a bit confusing to follow, because the original provisions do not lie in section 90 of the original Evidence Act 2006. They appear to sit in section 35(3) of the Evidence Act, which concerns previous statements of a witness that are consistent with the witness’s evidence, and they are admissible currently if: “(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) the statement provides the court with information that the witness is unable to recall.”

It seems that the Law Commission recommended that that part of section 35 be moved to what is going to be amended section 90, through this clause 26, but the recommendation from the Justice and Electoral Committee was that this admissibility of a prior consistent statement be limited to allowing the witness to refresh his or her memory, rather than the previous consistent statement of the witness being admissible in evidence as of right in those circumstances.

I am just a little confused at how this change works, given that the two subclauses after that still apply, which are the subclauses that are in the existing clause 26(2), inserting the new subsection (7). The two conditions are in paragraphs (a) and (b) and say that “(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) the statement provides the court with information that the witness is unable to recall.” So if the previous statement is to be admissible now, it is going to be admissible not just to refresh the memory of the witness but, effectively, as evidence in its own right, which is now going to be there even if, having had their memory refreshed, the witness cannot remember it.

I wonder whether the explanatory note is right to say that that is what the Law Commission actually recommended, because that is what the explanatory note says, which is to say that the Law Commission recommended—well, it says this reflects the original policy intent to amend section 90 in line with the Law Commission’s recommendation to move the substance of section 35(3) to section 90. So that is my first question for the Minister of Justice.

My next question relates to what has been done in respect of business records. The bill, quite rightly, fixes a problem identified with the Evidence Act 2006, which is that the admissibility of business records was not quite right, so the definition in section 16 of the Evidence Act 2006 that deals with the “business record” is amended, and in amending it, it makes it clear that a business record that is a hearsay document that can be admitted as evidence of its content cannot “include a Police record that contains any statement or interview by or with an eyewitness, or a complainant, or any other person who purports to have knowledge or information about the circumstances of alleged offending or the issues in dispute in a civil proceeding”.

It is a longer definition than the original amendment that came to the select committee, which was “does not include a Police record that contains any statement or interview by or with an eyewitness or a victim”. So it has been extended in the way that was in the longer form that I read out. That seems to me to be sensible and, therefore, I am speaking in support of the amendment that has been made at the select committee because the normal rule against hearsay, which is being abrogated in respect of business records, should not be abrogated in respect of a police record of a statement or interview by an eyewitness, or a complainant, or any other person who purports to have knowledge. So I think that the select committee change there is useful, and the Labour Party will be supporting it. I think, if my understanding of the earlier matter that I referred to in terms of the new form of clause 26(2), inserting new section 90(7), is correct, then we will be supporting that too, but I just want to check that I have got that right.

I want to turn now to Jan Logie’s Supplementary Order Paper 195, which is about the ways in which evidence can be given by complainants in criminal proceedings that are sexual cases or concern domestic violence. The bill already makes some good improvements to the way in which child witnesses can give evidence in similar cases, and that is achieved in the proposed new section 107B of the Evidence Act 2006, inserted by clause 32 of this bill. Jan Logie is proposing an extension of that to the ways in which complainants can give evidence even if they are not child witnesses. I am aware that the Law Commission has done work in respect of this. I think it is unfortunate that some of the earlier work that was done by the Law Commission in this regard was, I think, rejected by the prior Minister of Justice, Judith Collins, and that, I think, is why Jan Logie is trying to do this by way of her Supplementary Order Paper.

We know that the number of successful prosecutions in respect of crimes of sexual violence and domestic violence that is not sexual—the rate of conviction is very low. It is very, very low. One of the reasons for that is that complainants are reluctant to give evidence. One of the ways that, as a society, we can improve the experience of complainants is through these perhaps more, shall I say, protected ways of giving evidence: by video or behind a screen. That, I agree, is completely appropriate in respect of child witnesses, and I think it is probably appropriate in respect of complainants too. I think that subsequent recommendations or responses from the department to some of the Law Commission’s earlier recommendations might see this come forward as Government legislation in a future bill. We would be willing to consider that then if this Supplementary Order Paper does not get up.

I think the reason that Jan Logie is bringing this forward is that she is frustrated that the prior Minister—not the current Minister in the chair, the Hon Amy Adams—has pulled that out, so I will be interested to hear from the Minister as to whether the Government will be supporting Jan Logie’s Supplementary Order Paper, which I think has got No. 195 at the top, and it is about clause 32, inserting, after the new section 107B, this new section 107C that she proposes, and some related documents. It is quite complex—there are other cross references in the Act that you have got to get right to make these things right. I hope—

The CHAIRPERSON (Hon Chester Borrows): Order! I might just be able to help the member. It appears that no Supplementary Order Paper has been received from the member Jan Logie. There was a proposal, but it is no longer being tabled.

I picked this up off the Table, Mr Chair.

The CHAIRPERSON (Hon Chester Borrows): Maybe we can seek further clarification to the clarification we have already had.

Well, OK, thank you. I will accept that clarification.

The CHAIRPERSON (Hon Chester Borrows): Maybe it should have been taken off the Table.

Yes, well that makes it easier, because it is actually quite a complex thing to do by way of Supplementary Order Paper, and so I congratulate Jan Logie on the effort that she obviously put into this. But maybe she came to the conclusion that it was actually better to leave that to a process, because one of the points that I was going to make is that it may be that some submitters on the legislation had not properly considered that in their submissions, and it might be better to improve that area of the law in a later bill.

The CHAIRPERSON (Hon Chester Borrows): I think it was in light of select committee changes that were made.

Right, OK. Thank you. In terms of the bill—

I do want to take a call earlier in this debate, and I will take the opportunity to respond to the points Mr Parker raised. I also just want to touch on what I also understood to be the Supplementary Order Papers (SOPs) in front of the Committee. Given that the Committee has granted a little bit of leeway to Mr Parker to talk about them, I am sure it will be equally generous in allowing me a little bit of leeway to respond.

May I begin, of course, with a very overarching comment about the effect and impact of the bill. I think it is one that has, as far as I know, broad support in the House as to its aims, which are, effectively, to ensure that vulnerable witnesses, particularly child witnesses, are far better protected in the ways in which they can give evidence, and that when prior video evidence is taken, particularly in sexual violence cases and involving vulnerable complainants, that evidence is very carefully handled—and, of course, the changes that Mr Parker made reference to in terms of prior consistent statements.

If I can just firstly address the issues that Mr Parker raised around clause 26 and the impact of the changes there, I can confirm for Mr Parker that the changes in this solely pick up the Law Commission recommendation, which is really just to move what was in section 35 of the Evidence Act 2006 into section 90, being its better place. There is a slight amendment in my SOP simply because the drafting left out a single word, but a reasonably important one, which is “admissibility”, and so we have just made sure that the bill as you have it in front of you, with the addition of the Government SOP, simply replaces the original wording of section 35(3), into the new location as reflected by the Law Commission’s recommendation.

I can assure Mr Parker both that it is simply giving effect to the Law Commission recommendation and that it does not change the operation and the practice that is well understood in respect of what was section 35(3) and will now be in section 90.

I am just going to briefly, again, touch on what I understood to be the SOPs from Jan Logie, and let us work with the benefit of doubt for a moment—

💬 Hon David Parker: I raise a point of order, Mr Chairperson. I wonder whether we could have clarification, because I have just been approached by the Greens’ whip to say that their understanding is that those Supplementary Order Papers that I was addressing were, in fact, tabled and are live. So if we could have some clarification of that, Mr Chair, then I—sorry to interrupt the Minister, but it would be relevant to the Minister’s answers too.

The CHAIRPERSON (Hon Chester Borrows): Yes. To clarify, Supplementary Order Paper 195, in the name of Jan Logie, and Supplementary Order Paper 194, in her name, are live.

Thank you, Mr Chairman. So it is nice to know that Mr Parker and I both were operating off the same information and that it was, in fact, correct, which is always an added bonus.

The CHAIRPERSON (Hon Chester Borrows): It always helps.

Ha ha! It is not always the case, but we will take it. So we have the two SOPs from Ms Logie, and I certainly want to support the intention that I know she is trying to deliver in this space, which is better protection for vulnerable witnesses. Although the Government will not be supporting the SOPs, I do want to pass on my assurance to the Committee that we are absolutely interested in continuing to work on further ways that we can to support victims, particularly of sexual and family violence, not only in the manner in which they give their evidence and the use of alternative means but actually a far wider range of changes than that.

Mr Parker made comment in his contribution about the fact that, actually, although there is a lot of ability for us to make improvements in this space, it is in fact an incredibly complex area. My view in getting this legislation up in this time frame was that the changes we had encompassed here were clear, they were straightforward, they were well supported, and the sooner I could give effect to them the better.

The changes that we are working on around the Law Commission’s piece of work around sexual violence, family violence, and the way the court responds are extensive. They combine a range of changes, from the minor and simple through to the quite considerable reform of how we think about our system of laws. I think we should be open to that discussion. I think it is a big discussion to have, but I think it is one that we should take time to get right. Although child witnesses and sexual violence and family violence complainants and victims have some matters in common, they are actually quite different vulnerabilities that we are dealing with, and I think the solutions need to be thought through carefully.

Obviously, in some cases, a witness will be both a child witness and also a victim of sexual violence. Of course, the main thing is that the most comprehensive level of protection should apply in that case. But where we are dealing with sexual violence victims who are not children, although I absolutely have a piece of work in front of me that is comprehensive in looking at these issues, I do not think it is as simple as saying: “Well, if you give your evidence through closed-circuit television, we can consider the support of sexual violence victims appropriately dealt with.” But I am very interested in working not only with Ms Logie but with members around the House who I know have an interest in improving this area of work.

If I can talk then to Ms Logie’s other SOP, which the Government also will not be supporting, Supplementary Order Paper 194, which is seeking to amend section 85 of the Evidence Act 2006 to explicitly provide that a judge may disallow intimidating questions. The reason, again, that we are not proposing to support the SOP in this form is simply that I am satisfied that for current purposes the existing ability of a judge to order that questions be ruled out of order because they are unfair or improper gives the judiciary a very wide range of redress in the case of intimidating questions. Again, certainly the whole conduct of our courtrooms, the conduct of defence counsel, the conduct of some of the prosecuting counsel—more usually, defence counsel—and the questioning of witnesses is part of this wider piece of work that we want to be considering.

Can I just make the point too, referring to the earlier SOP, that although this bill sets up a clear presumption in favour of the use of alternative ways of giving evidence, there is still an absolute ability for the judge in any case to make that determination. So it should not be mistaken that sexual violence victims do not have the ability to give evidence through alternative means; they absolutely do. What we have done in this bill is create a rebuttable presumption that that should always be the case for child witnesses, and I would expect that judges do use that with considerable care, when it is appropriate, for sexual violence victims now.

But if I can simply reiterate my support of Ms Logie and the Committee to continue to work on how the whole system of prosecuting sexual and family violence is better dealt with—I will absolutely do that. However, I am not convinced that these SOPs, pulled out as individual little aspects of that piece of work, are best progressed in this form. I note that the select committee considered them and rejected them, and I share their view, but the work is important, which will continue through another channel.

I would like to—

The CHAIRPERSON (Hon Chester Borrows): I am sorry to interrupt the honourable member—[Interruption] Sorry, I have a wicked sense of humour. The time has come for the Chair to leave the Chamber. The Committee will resume at 7.30 p.m.

Sitting suspended from 6 p.m. to 7.30 p.m.

Tēnā koe e Te Whare. Tēnā koutou te whānau o Te Whare. Kia ora mai tātou, tēnā tātou katoa. Members, when the House suspended, the member Stuart Nash was robbed of his opportunity to speak by the arrival of the time to leave the Chamber for the dinner break, and I ask him to get to his feet and give us 5 minutes of his best.

💬 STUART NASH: First of all, let me just go over what I was talking about when I was interrupted. Good evening, Mr Chair. That is it. No, look I should not make light of this, because this is actually a very serious bill. I would like to talk about clause 16. This is the application to offer evidence or ask questions about the sexual experience of a complainant in sexual cases. This is a very serious matter.

The CHAIRPERSON (Hon Chester Borrows): Order! I just ask the member to resume his seat momentarily. Sorry, my oversight—I call Stuart Nash.

💬 STUART NASH: As I was saying.

💬 Hon Member: You’ll have to start again.

💬 STUART NASH: OK. Look, let me start again. Good evening, Mr Chair. This is a very serious bill and I do want to talk about a serious clause. This is clause 16, inserting new section 44A. This is the application to offer evidence or ask questions about the sexual experience of a complainant in sexual cases. First of all, let me outline what clause 16 is about, but then let me outline the couple of concerns I do have about the practical application of this.

First of all, I think this clause is very good. What this says in 44A(1) is: “An application under section 44(1) must comply with subsections (2) to (5) (as relevant) unless—(b) every other party has waived those requirements;”—we are talking about asking questions about sexual experience—“or (c) the Judge dispenses with those requirements.” Let me come back to why, or how, a judge can dispense with those requirements. But let me first of all say why I agree with this. So what 44A(2), (3), and (4), basically, say is that if a party wants to offer evidence about the sexual experience of a complainant, if a party wants to ask any questions about the sexual experience of a complainant, or if any document is intended to be produced as evidence of the sexual experience of a complainant, then notice is required under subsection 2 and must be accompanied. So this is, in essence, asking the complainant’s permission to dig a whole lot deeper into their sexual history.

What it says here is that this application must be complied with unless the judge dispenses with those requirements that I have just outlined. Now, what it does in subsection 6 is it outlines the areas in which the judge can dispense with those requirements. The first one, 44A(6)(a), is “having regard to the nature of the evidence or question proposed to be offered or asked, no party is substantially prejudiced by the failure to comply with a requirement;”. I sort of get that. I understand that. That makes sense. In 44A(6)(b), it says: “compliance was not reasonably practicable in the circumstances;”—and, again, I understand that, and I can see how you could mount an argument in that case. But it is 44A(6)(c), in clause 16, that really causes me concerns—this is on page 8—and this is a reason why the judge can dispense with any of the requirements, i.e. to seek permission to ask about a person’s sexual history, and that is if “it is in the interests of justice to do so.” Now, that is a very, very wide condition that it provides to judges.

Let me outline the concerns I have there. First of all, what is the definition of the “interests of justice”? I know of a number of cases—and this is the reason why this bill is here—where a woman’s sexual history has been brought into play as use of evidence against her. There is a case of a very good friend of mine—she is a high-profile person in Napier. For obvious reasons, I am not going to mention her name, but she is quite open about this. She accused someone of rape. What happened is the defendant’s attorney painted this woman as a man-hating woman who was determined to bring this guy down. She is about 56 years old. Her whole sexual history was brought into play. She was painted as just a not very pleasant woman who had a loose morality. Now that is absolutely not the case—but this judge tore her to pieces.

This woman was an advocate for women victims of sexual violence, and she said to me “You know, if a young woman came to me now, after what I have been through, I would find it incredibly hard to recommend that she go to the police and make a complaint.”—and this is a woman who has advocated on behalf of women victims of sexual violence, and that is an absolute travesty. So I know what this part of the bill is trying to do, and I applaud it in terms of seeking permission to dig really deep into a woman’s past. But when there is a clause here that says the judge may dispense with these requirements because “it is in the interests of justice to do so.”, I can imagine that this could turn into a very complex legal argument. I can imagine a smart lawyer successfully challenging the definition of the “interests of justice” on behalf of his client—the interest of justice argument—and especially when we consider that the reason this is here, the reason this is before the Committee, is because this is a common tactic used by defendants to discredit women. I have real concerns about how this will be used, from a practical perspective.

I get what the bill is trying to do, and I think it is admirable that we must seek permission from the woman before being allowed to go there. Obviously, there is another way that we can dispense with these requirements, and that is if every party has waived those requirements. That is, if the defendant and the prosecution have said: “OK, no problem. Let us dig as deep as we can.” But from what we know about sexual abuse and the amount reported—let alone the number of cases that are successfully tried—it is very, very minuscule.

That is why I have real concerns about this, because, as mentioned, this puts a whole lot of power in the hands of a judge. Of course it is the judge’s courtroom, so he or she has the discretion to make decisions, but the decision around what is in the best interests of justice, I would argue, is a really subjective call, and I would like to see that used absolutely sparingly when a judge does decide that it is in the interests of justice. Because if it is not used sparingly, if it is given a loose definition that can be successfully argued by every two-bit lawyer who comes in front of a judge, then we know that the application to offer evidence or ask questions about the sexual experience of a complainant in sexual cases will actually mean nothing. It will not have the desired effect, which I believe this legislation tries to give effect to, and that is to remove the fear among women who have been victims of sexual abuse, so that they are coming forward without fear or prejudice that their reputations are going to be dragged through the mud.

I know the Minister in the chair is not responsible for this bill, therefore—with all due respect to the Minister, I am not being disrespectful—I doubt it is worth asking her a question about how she sees this is going to be applied. But the Minister has had responsibility for pretty serious portfolios around this. I would be interested in whether she has any ideas around this—or whether she, like me, would like to see a very narrow definition of how the judiciary do apply this. I would like to put on the record that I do have concerns that this could be open to—and I will not say abuse, that is the wrong term; this could open a Pandora’s box, so to speak. Thank you very much.

In reply to the member Stuart Nash: I am not the expert on this bill—it is not my bill—however, I have been given information and I would like to pass that on to the Committee in response. So the “interests of justice” test is a standard legal test that judges are used to applying. It encompasses a range of factors and will be fact-specific and determined on a case-by-case basis. The provision in question—new section 44A(6)(c), inserted by clause 16—is only about the procedural requirements of filing an application; it will not have a bearing on the test for admissibility of the evidence. The bill does not alter that test; it just requires the application to be made before the trial.

At this stage of the debate, I would like to speak to all three of the Supplementary Order Papers (SOPs) that are on the table, and specifically to speak to Minister Amy Adams’ SOP 188 first, and to reference the Minister’s comments in reference to my SOPs earlier in the evening. The Green Party will be voting against the Minister’s SOP because it seeks to extend the periodic review of the operation of the Evidence Act 2006.

This Act is incredibly important for justice for victims of sexual violence and domestic violence. In this country, we have had many, many pieces of work telling us what we need to do to reform our justice system. We know that there is about a 1 percent conviction rate for sexual violence in this country, and about 2 percent for domestic violence. A significant part of the reason that the conviction rate is so low is our justice system and our courts and how they are operating. We have got a body of academic work where there have been interviews with lawyers and judges, and lawyers and judges have said that if a family member of theirs was raped, they would not advise them to go to the police and take a case to court, because they would not want to see their loved one re-traumatised through the court process. We have had many recommendations telling us what we should do to fix the system to stop that reality, to enable victims of sexual violence to achieve justice, and, as a consequence of that, for us all to be safer as a society when people are held properly to account. Yet we have not managed to get those changes through our system.

Initiated in 2009, we had the Law Commission work on alternative trials and pre-trial processes. It was taken off the table by the last parliamentary term’s justice Minister, Judith Collins, and put back on by the current Minister of Justice, Amy Adams, but the problem was that she gave the Law Commission a very short time frame for considering the work, which reduced the scope of what it was able to consider in that review. That review was reported back in December last year, and one of its recommendations was that there needed to be further consideration given to reviewing the substantive rules of evidence—the exact content of this piece of legislation in front of us at the moment—and it suggested that it could take place at the same time as the next review of the Evidence Act 2006, which is now being extended by this SOP put forward by the Government. So we have had case after case going through our courts that have just broken the hearts of women and men around the country who have looked on and said: “That is unfair. That is wrong—that somebody should be subjected to that experience in the process of trying to get justice.”

We have had a massive piece of academic work called From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand by Elisabeth McDonald and Yvette Tinsley from Victoria University, which has told us what we need to be considering. Only some of that work went into the Law Commission’s review; some of it was put aside. Then that work got shrunk down, and then one of their conclusions was “Well, we need to be looking at the Evidence Act.”, and now the time frame for that has been put out again. It is actually completely unacceptable.

We heard from the Minister earlier this evening that the Government cannot support the SOPs that I have put forward because: “Well, the Government’s looking at these issues in a considered way, and they are very complex issues.” This has been going on since before 2009, when the solutions and the issues were put on the table—since 2009. This is 7 years of victims of sexual violence in this country waiting for us to do our job, to give them a system that has a hope of giving them some dignity in the process of trying to achieve justice. It is not acceptable that this House would extend that process any further. We have the chance to actually prioritise this.

I will just calm myself at this moment and try to bring it back to the SOPs that we have put forward, which are tiny—tiny—tinkerings with the system, but they are systems and things that we could do in the form of an amendment to this Act that could make a small change. One of those things, which was recommended by Elisabeth McDonald in her submission, was to be able to allow the alternative ways of giving evidence, which have been created in this legislation for children, and to make that the presumption for victims of sexual violence and domestic violence. In her response to this, the Minister noted that although the Government supports the intent of my SOPs, this was an incredibly complex area, and there are different vulnerabilities for adults and they need different solutions. Well, I would like to point out to the Minister that the latest report from the Law Commission, which came forward in December, said that less traumatic methods of giving evidence at trial should be made available to complainants of sexual violence. That is what my SOP does. I will also note that the Minister also said that providing evidence by closed-circuit television will not solve it all—no it will not.

I really, really wish the Justice and Electoral Committee could have been given a bill that would have enabled it to consider all the issues to make a real difference, but this is one thing that could. The ongoing research noted by Elisabeth McDonald still indicates that there is an inconsistent approach to the issue of support and advice to adult complainants in sexual cases, and a presumption would address this issue: “There is no evidence to suggest this has changed as a matter of practice … nor has there been any responsive amendment to the Victims of Crimes Guidance to Prosecutors … [the] adult complainants who have made allegations of childhood sexual abuse may also be”—and this has been recognised by our courts—“extremely vulnerable and require assistance to give evidence …”. Yet the select committee chose not to recommend those changes to this House. My SOP rectifies that oversight and gives this House the opportunity tonight to ensure that sexual violence victims have that presumption to give evidence in alternative ways. It does not lock them into to it. They can still opt out of it and provide evidence in other ways. This has been recommended by the Law Commission. The need for it is supported by long-standing research, and this House should do that. Victims of sexual violence in this country deserve us to give that to them.

The other recommendation that I make in the SOP is, again, incredibly minor. It is to ensure, or to provide—excuse me just while I find my piece of paper—that we “add the word ‘intimidating’ to the list of unacceptable questions that a Judge may disallow or direct that a witness is not obliged to answer.” The point of this is that although judges do currently have discretion—and that has been the argument against putting this in—the advice and the suggestion from Elisabeth McDonald for including it in the list is more about the signal that it will send to victims. Victims will know that intimidating evidence is not considered to be appropriate in our courts. That may actually help build that confidence in our court systems to help victims of sexual violence to come forward and use the system in the hope of getting justice. We know we cannot assure them of that at the moment. We know that, actually, when we have seen a very recent case where, I would say, some evidence that was allowed in lines of questioning was completely unacceptable, I think there needs to be clearer direction for the court and also a clearer message of what victims can expect. On that note, I will be interested in hearing responses.

I want to go over one of the main provisions in this bill and return to new section 44A, inserted by clause 16, to address some of the comments that a member across the Chamber made. I do disagree with the member. I acknowledge his heartfelt intervention in this debate on behalf of his friend, who clearly went through an incredibly distressing time that continued through the court process. I do want to acknowledge that, but I do wish to take a different view of the impact of new section 44A.

The member ascertained that the effect of new section 44A in the bill was an opportunity to delve deeper into a complainant’s previous sexual history, and I will take a different view to that. Also, I will take a different view to the evidence that the member gave when he referred to new section 44A, subsection 6(c), around the interests of natural justice. It is not a judge’s role to attack, I think the word was, a witness or a person in the stand. It is not the judge’s role to do that. The member did say that, so I just wanted to mention that.

Returning to the notice requirements for evidence of previous sexual history, what the bill does do is it adds a requirement that the defence give notice before the start of the trial if they intend to use evidence about a victim’s sexual history with someone other than the defendant. Now that is different. This was, in fact, a change that was recommended by the Law Commission and has been picked up in this bill. The notice requirement will allow the admissibility of the evidence to be determined pre-trial, so it is not in any case an opportunity to delve deeper, but it is an opportunity for the admissibility of the evidence to be determined before the trial starts. At the moment, permission to introduce this evidence can actually be sought from the judge at any time during the trial. So it is my view, and it is the view of the Justice and Electoral Committee, which voted in favour of the part of the bill in this clause, that new section 44A around notice of application to offer evidence or ask questions about sexual experience is an improvement on current practice.

💬 Stuart Nash: That was my argument.

The member is saying across the Chamber “That isn’t my argument.”, but it was certainly the argument that I heard, and it was at variance with the intent of the bill.

I first of all want to make some comments about the Supplementary Order Papers (SOPs) and then finish with some comments about clause 33A. First, I turn to SOP 188, in the name of the Hon Amy Adams. New Zealand First will support this SOP. It does a couple of very simple things: firstly, to replace the word “notice” with “application” in clause 16, and then another simple thing, to extend from 1 to 2 years the period for periodic review of the Act. We have no problem with any of that. The second of the three amendments that it makes, which is that a previous consistent statement of a witness will be admissible in evidence rather than the witness being able to refer to it only to refresh his or her memory, I think is perfectly fine by us, and we are happy to support that SOP.

The more substantial one I wanted to make comments on was SOP 195, in the name of Jan Logie, and I thought she mounted a very logical and compelling argument in favour of the thrust of that SOP, which would extend the use of the alternative ways to give evidence beyond the current limitation age of 18 years so that all complainants of family and sexual violence could make use of that. We think that is actually a very good thing to do, and the main reason is that people who give evidence in those sorts of cases have often had traumatic experiences, and it is good for them, for those reasons, to be able to give evidence in those alternative ways, like video, for example. In other words, it is the same rationale for young people who find giving evidence very difficult. For these people in those circumstances, it is just as difficult for them, so why not extend that to people in those situations? For that reason, New Zealand First will support that SOP.

However, we are not going to support Jan Logie’s SOP 194—well, one out of two is not too bad, Jan. Anyway, the reason for that is that we do not think that inserting the term “intimidating” after “misleading” in section 85(1) of the principal Act is a good idea. The reason, simply, is that I do not think the word “intimidating” is well enough understood or is certain enough to be used in that context. So we would prefer that the word not be there, and we will therefore not support that SOP.

The only other thing I need to talk about is something that I think deserves a comment, and that relates to new clause 33A, which inserts new sections 119A and 119B into the principal Act. The reason I mention that is that the Justice and Electoral Committee heard a submission on access to video evidence, which I thought was quite compelling, that demonstrated what can happen to a person if we do not get the law right in these sorts of respects. I refer in particular to access to video records of evidence outside criminal or Family Court cases, because some tribunals and similar statutory bodies have powers quite outside this legislation to call for and consider video evidence, but they are not subject to the regime that is actually prescribed in regulations under the principal Act. Injustices can flow from that, and there was an injustice to the person who made this particular submission.

Under new clause 33A, the requirement that the police would be prohibited from releasing a video record of evidence to parties to proceedings outside criminal or family courts unless the relevant body orders it is, we think, most appropriate. It would deal with the situation raised by the submitter and would operate to avoid the sorts of injustices that we heard had occurred to that particular person. It is a very serious issue, because that person had suffered serious damage to his reputation and his ability to gain employment, so it is not as though it is a minor matter. It is a very serious matter, and I want to commend the select committee for listening to him, understanding, and doing something about that issue. We very much support it.

I listened to the Green member Jan Logie speak a few minutes ago about her real concerns about part of the Minister’s Supplementary Order Paper (SOP) 188 around changing the review period from 1 year to 2 years, which, on the face of it, does not sound an awful lot longer. Before that I listened to the Minister’s comments before the break with regard to Jan Logie’s SOPs 194 and 195 and why, although she was sympathetic to those SOPs, she could not support them. She used phrases such as “we need to pass this legislation the sooner the better”, and that there is a “bigger” discussion happening around the issues that Jan Logie’s SOPs, particularly her substantive SOP—195, I think it is—address. She said that she had thought through carefully whether or not to support it.

All of those things are reasonable to say, but I want to ask the Minister some questions. I accept that the Minister in the chair right now, the Hon Paula Bennett, is probably not going to be able to answer them. If possible—

💬 Hon Member: Have faith in the Minister.

Or she may. If the Minister Amy Adams, who has carriage of this bill, is able to answer the questions before this debate is up, that would be useful, I think, for the Committee—if not, then perhaps in the third reading—to address the issues. They are around the piece of work that she referred to that is being undertaken to address the issues partly, and no doubt more, raised by Jan Logie in her SOP 195 with regard to the giving of evidence by complainants in criminal proceedings for people who are over 18, and alternative ways of giving evidence by complainants in criminal proceedings.

I know Jan Logie referred to them as minor amendments, but they do seem quite significant to me. I did not sit on the Justice and Electoral Committee, but I did speak in the second reading of this bill and I have considered the issues that lie behind it quite carefully. It does seem to me that in the select committee process there clearly was quite a discussion about the recommendations put before the select committee around dealing with evidence given by women who were over 18, and I wonder why that could not have been dealt with at the time, because it does seem that those issues were pretty important.

I am going to just refer to the advice that was reported from the select committee by the Associate Professor of Law from Victoria University Elisabeth McDonald, who, along with Yvette Tinsley, being New Zealand experts, advised on making those changes that Jan Logie refers to, which would benefit the victims of sexual violence. This was around alternative means of giving evidence—not having to give evidence face to face, and that this should be extended to just beyond the age limitation of 18 to all victims of family and sexual violence. I would like to know what the rationale is for holding back on this, what the piece of work is that is being addressed by the Minister, what the time line is for that piece of work, and whether that is going to appear as another amendment to the Evidence Act 2006, and when that might occur. We know that the statistics are frightening—

I just want to start by thanking Minister Bennett for the clarification on a question that Stuart Nash posed before. Notwithstanding the comments made by Jan Logie about the extent of this bill, I do agree with my colleague Clare Curran in terms of some of the issues that this bill raises and improves.

It may not go as far as we would like it to go, and it may have been delayed. I want to just start with a couple of introductory comments about that delay. This piece of legislation has been in the mill, really, since about 2006, when the Law Commission put out its first report. It really has sat in abeyance on the Order Paper for pretty much 5 years while it has been churning through. So it has been a very long time.

I will put that into further context with just a brief comment. We have the sixth-worst sexual violence record in the OECD. It is nothing to be proud of. We have an incredibly high domestic violence record. The fact that it has taken the bill this long to get through is actually pretty significant. This bill will not fix that record, but when you look at the fact that out of about 100 sexual violence cases, 10 of those get to court, and one leads to a conviction, you can see, as in the example that Stuart Nash was pointing out just a minute ago, that the fact that those odds are so long certainly does put people off going forward and reporting those cases, because of the stress and the duress they are going to be facing when they end up in court.

But having said that, I just want to point out three or four of the issues that I think I am particularly pleased to see in this piece of legislation. The first is in terms of children and the fact that for a child witness the onus has shifted to the point that child witnesses will give evidence in alternative ways. Alternative ways means closed-circuit television (CCTV) through video, but not through direct personal presence inside a court. This is significant in the sense that it will mean that the presumption is that no child will appear in court, which, obviously, is going to be intimidating and traumatic for many of the child witnesses—so the fact is that that has now become an assumption that that would be the case. Now, it is up to the judge—the judge can ask whether the child would want to come into the court, but it means that cross-examination does not occur in an intimidating and potentially traumatic environment. That, I think, is good.

Secondly, the bill also provides that a child witness is entitled to have a support person when giving evidence, and may even have more than one support person if that indeed is necessary as well. The provisions for support persons also can apply whether a complainant, or the witnesses covered by those subsections, gives evidence in an alternative way or an ordinary way. The support person will be there with the child whether the child is giving evidence through a CCTV and video or whether the child is actually physically present inside the courtroom. Again, it is a small step but a significant step forward in terms of being able to satisfy some of the issues that perhaps prevent people, particularly children, from being able to give accurate evidence in a court of law.

There have been some other issues brought forward, particularly about the video recording of evidence. There is a series of three offences under new section 95(1), inserted by clause 27. If the video evidence that is being used is used inappropriately or shown publicly or whatever, there is a new series of offences that will come into play there.

The last thing I just want to mention is section 95, which is being amended. Section 95 of the principal Act is being replaced with: “A defendant in a sexual case, or a defendant in or a party to criminal or civil proceedings concerning domestic violence or harassment, is not entitled to personally cross-examine—”. This is a significant issue because we have had past cases where the defendant has been able to stand up and cross-examine and intimidate and, in effect, traumatise, particularly a woman who is the complainant in the case, and put that person through an enormous and extraordinary ordeal in the court. The fact that that cannot happen now is, I think, significant progress, along with a number of the issues that, obviously, the Labour Party will be supporting.

I come back to the point that I started from. This has taken a long time to come through. It is a very significant piece of legislation in terms of enabling people to feel much more confident about taking their cases to court. It gives a much greater chance of a conviction occurring as a result of that. It may also provide or prompt some degree—the fact is that it might deter the people who commit these crimes from carrying out those crimes, because they know that they have a greater chance of being convicted in court. It may actually have a dampening effect on the committing of those crimes, because they are highly prevalent in New Zealand—much to our shame. With those comments, I will resume my seat.

I move, That the question be now put.

I am going to dedicate my whole contribution to the Supplementary Order Paper of my colleague Jan Logie—it is the one that wants to insert “intimidating” after “misleading”. The reason I want to do so is that I have just been reading from McDonald and Tinsley and why they say it is so important.

Just for the Committee’s information, section 85 in the principal Act is about unacceptable questions that are put to witnesses—to victims, a lot of the time. Some of the criteria from the section, which we use to determine whether those questions are acceptable or not, are that you cannot ask questions that are misleading—that is, giving the wrong idea or impression; you cannot ask questions that are improper and that are not in accordance with acceptable standards; you cannot ask questions that are unfair—so, they are not based on or behaving according to the principles of equality and justice; and you cannot ask questions that are needlessly repetitive or expressed in language that is too complicated for the witness to understand.

So when I look at what “intimidating” means—definitions are really important—it means to frighten or overawe, especially in order to make someone do what one wants. It also means to frighten, to terrify, and to scare. I could not imagine us wanting to frighten, to terrify, or to scare any witness who was providing evidence in a court, so I just do not understand what the issue is.

What McDonald and Tinsley said was that if we add “intimidating”—and “overbearing” was the other word that they used, actually—it was noted that it “calls for greater judicial management of inappropriate cross-examination, and considered such a change may assist such judicial control.” It also noted that section 85 is about giving the judge “a wide discretion to control the nature of the questions and the manner in which they are put.” I think that some may see it as a little amendment, but I actually think it is quite a big amendment, because it speaks to the integrity of putting victims at the centre of pieces of legislation.

I stand to support this Supplementary Order Paper 194, as does the Labour Party, and I want to commend Jan Logie for her passion and for bringing to the Committee Supplementary Order Papers that are going to enhance this particular piece of legislation. I think that she speaks for members of communities that she is actively involved with. She does a lot of work—as others of us do, but Jan particularly—with Women’s Refuge, with women’s organisations, with Victim Support, with organisations that entrust her to come into this House and to speak for them.

I would implore this Committee and the Minister and other members of Parliament to add “intimidating” to section 85, which ensures that witnesses who are being cross-examined are not frightened, are not overawed, and are not terrified by the experience. We have talked a lot about the minute number of women who stand up and have the strength to go through the judicial process. Not enough women stand up and make complaints, so we want to empower those women who do with a process that is not going to frighten, terrify, or scare them.

I think that this is one of the Supplementary Order Papers that, as I said before, strikes at the heart of what this bill is trying to achieve. Again, I hope that there will be some common sense tonight and that we as a Parliament will at least pass this Supplementary Order Paper. Kia ora.

I move, That the question be now put.

I would like to speak again and give some additional information about the Minister of Justice’s Supplementary Order Paper (SOP) 188, and thank my Labour colleague Louisa Wall for her contribution and, I think, for creating that picture around why my SOP to add “intimidating” to the list of inadmissible questioning is so important. This is because it is about how we can create and change the culture in our courts in a way that holds the belief that we can achieve justice without traumatising people.

I think that intimidating questioning is clearly aimed at traumatising witnesses, and I do not believe that that is necessary to achieving justice. I absolutely do not believe it, and I do not believe that most New Zealanders think that witnesses should be intimidated in the docks or that our courts should be a place where that happens full stop, let alone people who have experienced violence against them in such a deeply personal way—and the impact that that has on people—then having to stand up in front of a room of people and expose themselves and then be intimidated through that process. That is not about justice, and I do hope that members in this Committee will vote tonight for a compassionate justice system that believes and stands up for the rights of defendants and the dignity of victims.

I would just like to speak a little bit more again to the problem I have with the Minister’s SOP, which delays the review of this Act and puts that further out, just by bringing to this Committee’s attention some of the issues that would be considered in that review. There are issues around whether the court should record evidence at trials of complainants in cases where it is not already pre-recorded. This is particularly important, again, for victims of sexual violence, when we have very long delays in people being able to get their cases to court. This process can go on for a very long time, and, if there has not been a pre-recording or if there is a mistrial or people have to come back, to be able to keep holding that experience, to be able to keep it alive, and to be able to recall it accurately under questioning sometimes months, if not years, down the track, is traumatic. So the review of this Act would help this Parliament consider that amendment properly.

The review would also be looking at whether the basis of admissibility of relevant evidence should be expanded to include the impact on the complainant of having to answer questions—considering the impact of the questions on the complainant, especially during cross-examination—and taking into account the distress likely to be experienced as a consequence of the questioning. We know, again, that this is very significantly linked to the issue of intimidation, but it goes much wider than that, around considering how we create court processes that give the defendant the right to a proper trial and proper consideration of evidence but do not cause distress to a complainant. That is not a simple thing to work out. A huge amount of work has been done on it, and, clearly, we have not got there with this piece of legislation in being able to come up with solutions, but the Minister’s SOP will extend the process of being able to come up with a solution to that even further. It is pretty much at the heart of the problems with our court system at the moment.

Also, looking at other issues that came up for the Law Commission to consider were—

I move, That the question be now put.