Evidence Amendment Bill

on behalf of the Minister of Justice: I move, That the Evidence Amendment Bill be now read a third time. At its core, this bill is going to reduce unnecessary trauma and better protect victims who become involved in the court processes through no fault of their own. Being a victim of sexual violence or a child witness who is called to give evidence can, obviously, be a truly harrowing experience, but often these testimonies are critical for the case. The changes in this bill are a major step in delivering on the Government’s aim to improve the experience of child witnesses and victims of sexual violence in the courtroom. So it is absolutely essential that the rules of evidence are kept clear, up to date, and working as intended to try to address this sort of issue. A well-drafted and up-to-date Evidence Act is vital to a well-functioning and fair justice system.

As required by section 202 of the Evidence Act, the Law Commission undertook a periodic review of the legislation in 2013 and found that it was generally working very well. In my opinion, that is not surprising, given the excellent work done by Parliament way back in 2006 when the original legislation was introduced—and I refer, particularly, to the subcommittee of the Justice and Electoral Committee, which was chaired by Russell Fairbrother, then a Labour MP; and assisted by Richard Worth, Nandor Tanczos, and me. We had the assistance of Robert Fisher, an Auckland Queen’s Counsel who acted as special adviser. I think the legislation was very good when it was passed in 2006, but one of the ideas was to have a periodic review. So this is what the Law Commission did, and it recommended a number of technical changes, and the bill progresses all but one.

The bill includes three core changes: to improve the court process for child witnesses, to enhance the court process for complainants in sexual offence cases, and to introduce important safeguards for video record evidence. So let me look at each of those issues—first, child witnesses. Last year, around 450 child witnesses gave evidence in criminal court cases, with a large proportion being complainants in sex abuse cases. The changes we are making will help those witnesses. Giving evidence is a very tough experience no matter what the circumstances, but for children it is especially traumatic. We know that most children, especially those who are very young, are already giving evidence in alternative ways, so the bill creates a presumption that child witnesses give evidence through the video of their police interview via a closed-circuit television or from behind a screen. Generally, a legislative presumption will ensure the alternatives are used consistently all across our courts for those witnesses under the age of 18 years. Encouraging these alternatives will help to shield child witnesses from the more intimidating aspects of the evidence-gathering process, like facing the defendant in the public gallery.

Another of the bill’s measures to protect child witnesses is the automatic entitlement to have a support person with them when they are giving evidence. Judges will oversee this entitlement, to avoid, obviously, any risk of improper influence being exerted by the nominated support person. So, hopefully, these changes are going to improve the court process for child witnesses and reduce that trauma. We also know that when children are less stressed, their evidence tends to be more accurate, so these changes will have flow-on benefits for the justice system as a whole.

The second topic is the issue of sexual offence cases, and the second part of the bill is about allowing sexual violence complainants to be better prepared for questioning. Concerns have been raised about the fact that in criminal trials for sexual offences, the victim is, effectively, put on trial when evidence is called about their sexual history. It is insulting and it is offensive to suggest that any assault was less of an offence because of the number of partners, for example, a woman had or anything else in her sexual history. So we are introducing a requirement that the defence gives notice before a trial begins if they intend to introduce evidence along those lines with a person other than the defendant. Currently, permission to introduce this evidence can be sought at any time during a trial. Admissibility of the evidence would be determined before the trial, which not only allows the trial to proceed uninterrupted but also gives the victim time to come to terms with what is going to be discussed in court. We need to make what is an inherently stressful process as undemanding as possible for victims, and a part of that is to ensure complainants can be prepared for what is going to happen during the trial.

The third issue involves the introduction of safeguards. The bill places restrictions and safeguards on defence counsel access to these video records in sexual and violent cases, and in all cases involving the child witness. It is never going to be easy for a victim of a sexual crime to come forward and make a complaint and then relive their painful experiences in a courtroom facing the judge, the jury, legal counsel, often the media, and the person who is alleged to have offended against them. In cases like these, police interviews with vulnerable witnesses are often recorded and used at the trial as the witness’s evidence in chief. The bill places some additional restrictions on how these videos can be dealt with to ensure they do not end up in the wrong hands or the wrong place. These amendments mean that the defence will no longer have an automatic right to a copy of the video. However, fair trial rights are preserved by the bill. The defence will still have the ability to view the video evidence and to apply to the court for a copy. In the digital age, it is critical that we ensure these legal protections are preserved.

The bill also introduces offences and penalties for improper dealing with video record evidence. Under these changes it will be an offence to possess, copy, or supply video records outside what is prescribed in the Act or in regulations. The maximum penalties for improper use will range from a significant fine to 6 months’ imprisonment. So, hopefully, these changes will support witnesses in sexual violence cases and all child complainants.

Finally, I want to say something about other work that is under way, because this bill will complement the other initiatives already under way to provide better support to victims of crime. These include allowing victims of family violence to give evidence via a video record made by the police on their iPhone at the scene, as often happens now; the strengthening safety service, which has helped 2,600 victims of family violence and their families since it was introduced in October 2014; and the Integrated Safety Response pilot in Christchurch, which brings together a range of agencies and aims to ensure that families experiencing family violence are safe and receive the services they need to prevent further harm. The Minister is also considering the Law Commission’s recommendations to improve the court experience of victims of sexual violence. So there is a lot of work in this area.

In closing, I want to thank the Law Commission, the Justice and Electoral Committee, and those who made submissions on this very important topic. I commend the bill to the House.

I thank the Attorney-General for his comments. I agree with him that the state of the Evidence Act in New Zealand is very good, in large part because of the expertise that was brought to bear by the ministry. There were very good advisers then at the Ministry of Justice. It would have been Warren Young back then, would it not, Mr Attorney, who would have been—

💬 Hon Christopher Finlayson: Yes, Warren Young.

—in the Ministry of Justice, and this is probably also through his efforts at the Law Commission at one stage. And an expert committee with the experience and expertise of Russell Fairbrother and Chris Finlayson as well as Robert Fisher meant that there was a high-quality piece of legislation passed in this House in 2006 in the form of the Evidence Act. It is a very, very long Act, the Evidence Act, and very complex. And the fact that here we go, 7 years later, putting it through a review, and that we have got this few amendments, actually shows, I think, what a good job Parliament did in 2006 when it passed the Evidence Act.

I will traverse the main points of the bill, but before doing so I note that the Minister ended by talking about some of the other issues or initiatives that are being pursued by the Government, including iPhone evidence taken by constables at the scene of a domestic violence incident, thus enabling the evidence of the complainant to be taken once and to be taken quickly while their memory is still fresh. They do not have to arrange child care for their children while they go down to the police station to make a statement, and I think it is truly in the interests of justice that we facilitate that sort of gathering of evidence and the use of that evidence at trial should charges be laid.

I do have a personal concern that we need to be very careful about one of the proposals that is currently about, which is to say that in some of these sexual crimes we ought not to have a trial by jury. I am yet to be convinced that that is right. Trial by jury has been an essential component of the criminal justice system for many centuries, and I am not convinced we should drop it. You have got to think about what would happen 20 or 30 years hence if you had a deterioration in your democracy and perhaps a poor Government.

I am not suggesting that any of the parties here currently would necessarily act like this, but you have to guard against the potential for having a poor Government in the future that brings inappropriate prosecutions. Such a Government might bring an inappropriate prosecution because, for example, there might have been a breakdown in the independence of the role of the police, and you could have politically motivated prosecutions, as you see in some other jurisdictions overseas. One of the fundamental protections you have against that in society is trial by jury. At that time you really can, in my opinion, rely upon juries to do the just thing. So I, for one, would be very reluctant to give up the right for a defendant or an accused to elect trial by jury in serious cases.

In respect of the main aspects of this legislation, I agree that the three main improvements in the bill are improved rules around child witnesses. Already, as the Attorney-General, Chris Finlayson, has said, most child witnesses give evidence either at a distance or behind a screen. It is, as he has said, a tough thing to do, particularly when the person against whom evidence is being given is often a family member. So it is very, very hard for the child concerned, and we need to protect those children from that experience being any more difficult than it has to be.

Obviously, there are certain circumstances when the accused, through their lawyer, still has to be able to ask questions of the child witness, and not all of the rigours of trial can be avoided. But it can be made less tough through some of the protections such as the change that is made in this bill, which, rather than it being a matter of discretion on the day, creates a presumption that the child witness can give evidence by one of those other methods that are slightly less stressful. That presumption can be overturned in some situations by a court, but that is for the court to determine. The presumption is now made by this law.

In respect of victims in sexual crimes being tested as to their prior sexual history, I agree that it is appropriate that it be done pre-trial, that advanced notice be given so that people can get used to the idea, and also so that a question can be asked by the trial judge: “Is this really necessary?”, and sometimes it will not be necessary. Through this process I think it will probably occur slightly less often. Sometimes it will be necessary and is relevant, and not determinative, but these processes will do that in a better way too.

In respect of video evidence, what the Attorney-General was hinting at was that there are some horrible people in society who will actually use the videos of evidence against the person who has given the evidence. So they will put them on the web, or they will share them amongst other people, or they will just use them as an angle to further abuse the person who is giving evidence. We should not condone that, and given that there are some people with that propensity, and given that there are copying techniques that did not use to exist, we have got to keep the law up to date and we have got to make sure that that does not happen. So I think it is absolutely appropriate that we introduce through this legislation controls on the access to video evidence of witnesses in sexual crimes, for example.

I mention one other thing that is fixed up by this bill. The rule against hearsay has an exception in respect of business records. Normally, the evidence that is tendered at a trial has to be evidence of someone who is in the position to give the best first-hand evidence of what is being deposed to in that evidence. There is an exception in respect of business records, because you can normally rely upon, prima facie, the evidence of a bank statement being accurate as to what it presents. So if there is a deposit made on 1 July for $10,000 and it shows D Parker as the source of it on the coding on the bank statement, you can generally rely on the bank getting that right and there is no need to call evidence to prove that there was, in fact, a deposit by D Parker on that date for $10,000. The business record can be accepted on its face. It can obviously be cross-examined if there is a doubt as to whether there is some fraudulence around that transaction or the like, but, generally, prima facie, that can be accepted on its face as an exception to the rule against hearsay.

That exception to the rule against hearsay is found in the Evidence Act, but it was drafted in a way that was so broad as to encompass a witness statement given to a police officer as falling within the definition of a business record—that is, the record that the police kept of the interview of the witness—and it was not intended that that be the case. In that case you would actually, fairly, want to have the witness who gave the statement to the police turn up to give evidence themselves and tell the court, the jury, or the judge what their evidence is, rather than just tendering a statement from the police of their record of the interview—because the viva voce evidence of the witness is better evidence than the statement by the police officer, which might be edited or it might not be a perfect recollection, or there could have been some misinterpretation of what was said, and it is better to get the evidence of the person themselves.

So this Evidence Amendment Bill makes it clear that the business record exception to the rule against hearsay does not 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 the alleged offending. So that is tidied up by this provision.

Can I thank the select committee for their work, and thank the submitters to the select committee, including the Law Society, who do a lot of really good work in this area in the public interest as volunteers, giving of their own time to make sure that the law we have is better than it would otherwise be. The Labour Party will be supporting this bill at its third reading, as we have in earlier stages of the bill. Thank you.

I want to thank the previous speaker David Parker for his good summary of the provisions of this Evidence Amendment Bill. As we work our way through the third reading—which means that we are getting ever closer to the enactment of this important piece of legislation—I just want to preface a few comments about the contents of this bill with a number of other initiatives that this Government has undertaken to put the victim at the heart of the justice system and, in particular, the provisions in this bill pertaining to protecting children as they give witness in court trials.

We have already done a number of measures to support the fight against family violence. There was the introduction of police safety orders to help manage family violence situations. We have up to 1,000 victims of family violence who are now kept safe in their own homes, and that is by way of the new National Home Safety Service. With some very simple interventions like alarm systems, locks on windows and doors, and other measures, this has allowed victims—who for some considerable time have felt fearful and afraid—to now feel safe in their homes for the very first time. There is a ministerial group with Ministers from across 16 portfolios that is focusing on family and sexual violence, which will oversee a whole-of-Government strategy for addressing family and sexual violence, and, of course, recently announced last week is a complete overhaul of family violence laws. I do expect and hope that the select committee in charge, if it is the Justice and Electoral Committee, will consider that bill with a lot of serious attention.

For the third reading of this Evidence Amendment Bill, I will not go into too much detail about the main provisions. In the third reading, with agreement across the House, I think the provisions have been well rehearsed over the course of the passage of this bill. I do just want to touch on the provisions around the changes in court processes for those vulnerable witnesses, and, in particular, children. It is about the presumption that child witnesses give evidence in alternative ways and have a right to a support person. Currently, under the Evidence Act, the prosecutor has to apply to the court for the use of alternative ways of giving evidence, and the judge must then give her or his permission for a child witness to have a support person. One of the very strong recommendations of the Law Commission, and one of the very strong submissions made to the Justice and Electoral Committee when we were considering this bill, was that, fundamentally, this was a provision that needed to be brought up to date to recognise the rights and needs of vulnerable children when they are required to give evidence in court. Along with the presumption that all child witnesses will use alternative ways of giving evidence, it also gives children the right to have a support person. For those two provisions alone, it is a very good reason for us to enact this bill not with undue haste, but I think with all speed.

It is a bill that enjoys wide support through this House—and so it should do—because this bill better protects vulnerable witnesses, while also ensuring that evidence is heard and handled appropriately and securely. Look, we never can legislate our way out of the pain and suffering felt by victims, but what this Parliament is doing, rightly, is ensuring that vulnerable victims and witnesses are better supported through their participation in the justice process.

Again, I again want to acknowledge the hard work of the Justice and Electoral Committee, and with those comments, I commend this bill to the House.

I want to acknowledge the comments that have been made from colleagues on both sides of the House. I think the Hon David Parker made a very astute observation when he noted the fact that the Evidence Act 2006 was really the first version of a consolidated Act to dictate and govern the use of evidence in court. The fact that this is our first attempt to review the Evidence Act, following on from the Law Commission’s work in 2013, I think, demonstrates that the original drafting was actually very, very good. So I want to begin by acknowledging that.

Other speakers have briefly touched on the substantive amendments that this bill makes. They include enabling more previous consistent statements to be admissible in evidence. We had quite a bit of discussion around the way the law dictates the use of admissible and consistent/inconsistent statements to be used in the court, and extending the privilege that currently applies to settlement negotiations and mediation in civil proceedings to include plea discussions in criminal proceedings. I think it is useful here to clarify that the Evidence Act is really just stipulating what is already practice, and that is privilege covering plea discussions in criminal proceedings.

But when I read this it did trigger something that I want to use this opportunity to put on record: plea discussions in criminal proceedings. Plea discussions—or what has been termed by others as plea bargaining—in the New Zealand justice system is not new. We do not adopt plea bargaining when it comes to sentencing, but when it comes to discussions in criminal proceedings around charge, it does happen. It has happened for some time. It is not new.

It has, however, been somewhat controversial in recent times and, I would argue, for good reason, because some fundamentals of our justice system have changed, and that includes, I would say, the way that legal representation is incentivised to operate. In 2009 the legal aid system moved to what the Government probably would have deemed to be a more cost-effective way of working. It has moved to a fixed fee for legal aid lawyers, which has resulted in an absolute decline in the availability and accessibility of legal aid lawyers on the one hand, but on the other hand questions have been raised around the quality of the legal aid assistance and advice that people are now receiving as a consequence.

As the Criminal Bar Association vice president said, I think it was last year: “You’re incentivised to do a shoddy job, to enter a guilty plea at the fastest moment, to cut corners and cut everything to the bone because there’s no way you can do the work in those time frames. But because the system hasn’t entirely imploded, the ministry assumes ‘all is well’.” The Evidence Amendment Bill allows plea discussions and criminal proceedings to, for all intents and purposes, remain privileged because in practice they currently are. These discussions around entering guilty pleas—we, anecdotally, have fed back to us—are occurring much more frequently because the system has incentivised that to occur. Sometimes that will be appropriate; sometimes that will stand in the way of a person accessing the full ambit of the justice system. It may stop someone even from accessing the ability to go before the court and argue against a charge that they have not committed. This is fundamental to our justice system, and I just want to use this opportunity to raise the fact that it is our view that it is time we absolutely review the impact of the 2009 law reforms.

I want to come to two of the more substantive parts of the Evidence Amendment Bill, though, which have been touched on briefly but which I want to expand on just a little bit. They are both changes that we absolutely support. One is the creation of a presumption that all witnesses under the age of 18 shall give evidence by means other than sitting in the courtroom. We absolutely support that. Anyone who has sat through the court process, has been a witness in a case, or has been a jury member will know what an intimidating and difficult environment it is for anyone, let alone a child. A lot of thought went into how to make sure that we put the balance right in that change, and I think that the Ministry of Justice has done a good job, in conjunction with the Law Commission.

The second element is the bill’s move to require defence counsel to give advance notice if they intend to bring evidence about the sexual history of the complainant in sexual offence cases. Look, we know that one in five women in New Zealand will experience a serious sexual assault. Those numbers are staggering, but on the flip side of that we also know that only 10 out of every 100 sexual abuse or violent crimes are being reported to the police, and even fewer than that are coming before our courts. We have to look at the full ambit of the way that those cases are treated, from the moment they are reported to the police, right through to the way they are processed through the courts.

But when it comes to the process through the courts, we know of course that the ability to bring up sexual history in the court process obviously acts as a form of deterrent—there is no doubt. The question then becomes how we can deal with that in a way that allows full access to all the aspects of natural justice before a court, while also balancing the very important needs of the victim. I think that, on balance, we have got it about right. I want to reference that on 26 July 2009 there were media reports of the dire consequences that defendants being able to bring up sexual history in a court can have on a victim, and, indeed, if that victim is deceased, on their family. There is no better example than the Sophie Elliott case, where it was reported that there was visible distress from friends and family in the courtroom. Sophie Elliott’s mum said: “I still feel upset her life was played out there so publicly.”

It was argued by Simon Power at that time that getting rid of the provocation laws would reduce the likelihood of sexual history being raised in a court in the way that it was in the Sophie Elliott case. I actually do not think it would have been the case; even if the defendant in that case was not using the provocation defence, I imagine that would have been used anyway. So we do need a provision like this, and this section as it is currently worded will mean that the interests of justice will require the evidence of sexual history to be excluded unless the case for inclusion can be made—so the balance sits on exclusion, unless the case can be made to the judge that it is reasonable to include that evidence. However, there is a bit of an exclusion, and that is when it covers evidence of a complainant’s sexual history with the defendant. I think we need to keep a close eye on the way that that is utilised.

I want to just refer to one of the Ministry of Justice statements on this part of the exclusion. It said: “The Law Commission did not consider it appropriate to expand section 44 to cover all evidence of a complainant’s sexual history. It reasoned that cases involving a prior sexual relationship between the complainant and defendant overwhelmingly turn on the issue of consent or belief in consent, to which a prior relationship will ‘almost inevitably’ be relevant.” We know that in a number of cases, cases of sexual violence will involve someone whom the victim knows. So the exclusion here around a complainant’s sexual history and relationship as it relates to a defendant is likely to be enacted on a reasonable basis, as in frequently. I think it is incumbent upon us as a Parliament to make sure that we really keep an eye on the way that this provision works and on the cases where it has not applied, to ensure that we have got the balance right in the way that section 44 applies. It is something that we need to keep a keen eye on.

Ultimately, all of this is likely to be re-examined when we have the Government’s formal response before Parliament. We saw a quick response to the Law Commission’s report on alternative trial processes for sexual violence. We probably need to look at all of this again as a whole when some of that substantive report comes out. I think it is very likely, hopefully, that we will be debating the option of both court processes and non-court processes, and giving victims greater choices around how they pursue cases of sexual violence against them.

All in all, I think the process around examining this bill has been excellent. It has been a good example of a select committee working well together, and it was a really helpful report from the Law Commission.

Can I just start by agreeing with Jacinda Ardern—I think that the Justice and Electoral Committee did work through this really constructively. I think it is really important and beholden on Parliament that, actually, when we have these kinds of issues, we really do seek to get the very best outcome that we possibly can. With this piece of legislation in particular, the focus is on making things as good for victims within the criminal justice system as possible. One of the great risks that we have in our judicial system is that victims of crime end up being revictimised by the process. I think it is beholden on us to ensure that the process that we have does everything that it can to limit the chance of that taking place—as other speakers have said, talking about the presumption that a child would be able to give evidence in alternative ways, rather than potentially having to sit in an open court in front of their alleged abuser in those sorts of situations, or perhaps face some sort of cross-examination. I think it is critical that we have a presumption—that it is not something someone has to apply for, but they can knowingly go into the situation knowing that they will be protected.

I think also that there is a lot of stress that can be involved for victims if they have given, for example, video evidence—wondering what is going to happen with that video evidence. At the moment, obviously, defence attorneys and the like have access to that information. For a victim to wonder whether or not their video evidence is potentially going to wind up in the hands, again, of their abuser or of the person who has perpetrated an act against them—it will create worry, and it will create stress. Again, putting parameters around that is very positive.

Finally, I want to touch a little bit on the notion of plea discussions. The speaker before me, Jacinda Arden, referred to needing to ensure that we protect people who may give up their rights to a proper trial through a plea discussion process. I think what we also need to remember is that, actually, this particular part of the legislation also has benefits for victims. I know I was involved in a situation a number of years ago with close family members who had been victims of a crime, and had to work through what a defended trial might mean for them; their having to go through the process of a defended trial with this particular offender. In the end, there was some negotiation that took place, and that person did agree to plead guilty—ultimately, actually, not to a lesser charge but to the greater charge, in this particular situation. But what it did actually show is that our system, if we get it right—and if we get the right parameters around it—can be supportive of victims and can ensure that we get good outcomes for victims. I believe that this legislation goes a long way to ensuring that our system overall will be better for victims, and I commend it to the House.

I am pleased to take a short call on this third reading of the Evidence Amendment Bill. It is a special pleasure because it is not often that we can actually wholeheartedly support a Government justice bill. All too often its amendments or its new bills are locked in an unfortunate, and very dated, punitive 18th or 19th century model. Gladly, this bill is not one of those, and we have been pleased to support it throughout its journey through this House.

The bill does some useful and positive things. I guess our only objection, or our only criticism of this bill, particularly on its way through the Committee stage, was that it could have actually done more. There were a few provisions we would have liked to see included in it, and we had Supplementary Order Papers to that effect, but so be it. The bill as it is does some useful, positive things, and we are happy to support it.

Not to restate what has already been said—but, of course, the bill does, among other things, protect video records when any sort of digital recording is made of witnesses or of evidence, or whatever it might be. There are some fairly rigorous boundaries—some safeguards—put around the integrity of that information, and that is critically important, of course, in this digital age, when information, if in the wrong hands, can be literally worldwide in a moment. I think it is critically important for the integrity of the system that when people are giving recorded video evidence they are reassured that it will be used for only the very specific purpose for which it is made and it is not at any point vulnerable to being misused or abused in any instance.

Jacinda Ardern also touched on the quite significant provision in the bill that, effectively, protects complainants—most often, women complainants—from having their sexual history paraded in front a courtroom, in front of the public domain simply because some particular aggressive defence counsel might see a little bit of way in there to discredit a complainant, to make it appear as though that woman, typically, actually has some weak moral code or some bad practice or some bad history in sexual matters. No doubt there is the odd rock star or two, or the odd exhibitionist, who is quite happy to have the intimate details of their sex life paraded to the world, but for the average person, particularly a complainant in a legal case, that would be most unpleasant and extremely damaging and traumatising for an individual. It does not entirely stop such information or such evidence being given, but a judge, in this instance, would need to be very well convinced in advance that there was legitimate reason for that person’s sexual history to be given as part of the evidence or part of the court case. So that is a very positive and useful provision in the bill.

As we have heard, the bill also introduces a presumption that all witnesses under the age of 18 will use some so-called alternative method of giving their evidence, and that is a very good thing—alternative methods meaning, obviously, that their identity can be protected or that they are taken out of that quite daunting and even intimidating sort of courtroom environment. They can pre-record their evidence or they can sit behind screens—whatever the most appropriate mechanism might be to ensure the privacy and well-being of that person under the age of 18.

On that point, I would hope that the Government, and particularly Ministers and the Cabinet, would give some thought to the provision we have now embedded in this Evidence Amendment Bill when they are making decisions about whether or not all children up to the age of 18 should be included in the youth justice system. At the moment we have this unfortunate system where, in most situations, 17-year-olds are treated as adults. There is no defensible reason why we should maintain that unfortunate situation. It is at odds with our international commitments to the UN convention. Members will be aware that recently 33 organisations wrote an open letter to the Prime Minister and to the Cabinet, encouraging them to include 17-year-olds—anybody under the age of 18—to be dealt with in the youth justice system, as this bill encourages us to do. The 33 organisations that signed that open letter included Unicef, YouthLaw, Barnados, PILLARS, the YMCA, and Prison Fellowship. These are not radical, mad-eyed organisations; these are very conservative organisations with a long history and a lot of credibility that genuinely believe that we should not treat 17-year-olds as adults for the purposes of the justice system. We absolutely endorse that.

Having managed to smuggle that point into my speech, I will quit while I am ahead and simply reflect on the Justice and Electoral Committee. I sat on the committee for most of this bill. It was a good process. It was very positive. Points were debated, discussed, and, on occasion, argued. We got good outcomes, and I think we can stand proudly by what I think is a very good piece of legislation. Thank you.

I rise on behalf of New Zealand First, firstly, to signal that New Zealand First, as advised by our spokesperson on justice Denis O’Rourke, will continue to support this legislation through the House. Not being the justice spokesperson and not having sat on the Justice and Electoral Committee, I am at a tad of a disadvantage in speaking to this bill, but I shall do my best, guided by Mr O’Rourke’s notes.

We note that in the first reading on 2 July 2015, New Zealand First acknowledged that the bill was designed to give further strength to the Evidence Act 2006 through the review conducted by the Law Commission in 2013, which the Attorney-General spoke of. It was a review that Mr O’Rourke supported on behalf of New Zealand First. We acknowledge that the bill contains some amendments that were considered technical in nature but still important and that there were changes requested. Looking at what Mr O’Rourke and New Zealand First said at the first reading—we spoke then about the changes to laws on hearsay evidence and pointed out that, generally, hearsay evidence is not admissible. The principal Act made hearsay evidence admissible in some cases, but it preserved the common laws rules relating to statements of conspirators and persons involved in joint criminal enterprises.

We went on to speak about the bill altering the law regarding improperly obtained evidence in criminal proceedings and the longstanding principle that such evidence would be inadmissible, but sections 30(1) and 30(2) of the principal Act provide that if evidence may have been improperly obtained, the judge must consider it on the balance of probabilities and decide “whether or not the exclusion of the evidence is proportionate to the impropriety…”.

There were other matters that were discussed in the first reading relating to the admissibility of previous statements and documents used to refresh memory, mainly contained in section 35(1) of the principal Act, which says that previous statements of witnesses are not admissible unless absolutely necessary to respond to the challenge to the witness’s veracity or accuracy and the statement provides the court with information that the witness is unable to recall.

There was mention about the issues around clauses 13 and 14 of the bill and section 37 of the principal Act, which provide that parties may not offer evidence about a person’s veracity unless the evidence is substantially helpful. Then there were issues around section 44(1)—and further there on section 57 and clause 22, inserting new subsection 2(A).

In the second reading I notice New Zealand First did talk about the improvements around hearsay evidence, and the second improvement, in clause 30, which amended section 106, and the need to prevent the misuse of video records. It is something that has been spoken about at length here in this debate this afternoon in the third reading. It pointed out that the Justice and Electoral Committee had made some important improvements to clarify the Act in this respect. There were two improvements. The first one amended section 106 to clearly specify the duties and restrictions relating to those video records that parties and lawyers have access to. We went on to talk about, in relation to that matter, that the committee recommended that it was important that regulations should be made, and that there should be provision to make those regulations, to cover the various ways in which all of that would operate.

The third improvement New Zealand First spoke about and that we focused on was the difficult area of children giving evidence. It was pointed out this actually means people under the age of 18, something that the previous speaker, David Clendon, has just referred to again. It was pointed out by New Zealand First that at the age of 18 these people are not necessarily infantile. Some of them may be able to give evidence in the ordinary way and others not. But the Act improved the situation in that respect.

We noted that there were changes to access to video records of evidence outside the criminal and Family Court cases, which we agreed with. Recommendations were made and adopted by the Justice and Electoral Committee to ensure a clear and broadly uniform regulatory approach to prevent the misuse of those records by making amendments to new clause 33A to insert new sections 119A and 119B into the principal Act.

Generally speaking, getting to the Committee of the whole House, one of the things that I will point out is that we, New Zealand First, did support Jan Logie’s Supplementary Order Paper (SOP) 195, because we thought that it added strength to the bill. Like the Green Party has just expressed, we are a little bit disappointed that that SOP was rejected by the Government. New Zealand First signalled it would support this legislation at the first reading, and worked constructively, along with the other members of the committee, to make constructive changes to that legislation, which the Government accepted. At this point in the third reading, we will signal that we intend to support the bill.

It is good to take a call on the third reading of this important piece of legislation. This was one of the first bills that I, as a new member of Parliament, got to see—not in a ministerial sense—go through all of its stages. It was introduced to the House early in 2015, had its first reading in July 2015, then it went off to the Justice and Electoral Committee, which I am very privileged to be a member of, along with some of my good colleagues on this side of the House, including some people who have spoken earlier in the debate—Jacqui Dean and Jono Naylor, who is the deputy chair.

It is a really important piece of legislation, the Evidence Act. When Parliament codified the common law around evidence into the Evidence Act 2006, it was quite a significant step forward for the law, and actually quite a significant step forward for the rule of law. I remember being at law school in 2006 and studying the codification of the various rules around evidence—

💬 David Shearer: Oh, you’re older than that.

No. It was a big moment and a big couple of months. It is a very important piece of legislation. It is really technical. It is one of those complex and technical pieces of legislation, and it is really important that you get it right.

In that context it is appropriate that the Law Commission has done the heavy lifting on this piece of legislation. The far-sighted parliamentarians in 2006 who passed the Evidence Act back then built a review clause into that piece of legislation. The law mandated that the Law Commission would do a review of the Evidence Act in 2011 to see how it was working, to see whether what the drafters said would happen actually turned out to be true in practice. Of course, the Law Commission kicked that off in 2011, it was reported in 2013, it suggested a series of amendments for the Government—all but one, I think, the Government agreed with—and we have this piece of legislation before us that we are going to pass, I think unanimously, through the House. That is very pleasing to see.

I do want to endorse the comments of David Clendon on the bill. He said that the select committee worked in a very collegial fashion, and that is definitely true. On matters like this you do need a degree of cross-party consensus. We received a number of very technical but, in some ways, quite hard-hitting submissions on a number of elements of the bill. We made some amendments that got passed through the House at the second reading and then at the Committee of the whole House stage.

I also want to commend the work of Denis O’Rourke, the New Zealand First member on the committee, because Mr O’Rourke played a very constructive role on the committee. It was interesting to hear Mr Mark just read out some of the comments that Mr O’Rourke had made. Mr O’Rourke, with his legal background, was very useful on the committee, and, indeed, actually, he plays a very constructive role on the Justice and Electoral Committee.

In my short contribution, I just want to mention to the House that I think we are making a very positive change with regard to the changes around the notice requirements for evidence of previous sexual history. In my first and second reading contributions to this bill’s debate in the House I traversed the changing law in New Zealand to do with sexual reputation and to do with previous sexual history. This current bill takes those changes a further step by adding 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.

That is a change recommended by the Law Commission. What it will do is allow the admissibility of the evidence to be determined pre-trial, which will ensure that the complainant knows what to expect when it comes to court. At the moment, of course, the law allows that permission to introduce that evidence can be sought from the judge at any moment during the trial. I think it is best that we have these things determined pre-trial.

That is the situation in the state of Victoria in Australia, and it was recommended by the eminent experts in this area, actually, Professor Tinsley and Associate Professor McDonald from Victoria University of Wellington, who, incidentally, taught me. They are the experts in this area. They recommended a bunch of other things that the House has not done. Maybe that will be for another day. I think we have still got some way to go in terms of this element in this area of law.

This is a significant step I believe, in terms of its contribution, as I mentioned earlier, to the rule of law, but in particular when it comes to the previous sexual history of complainants. I think this will go some way towards improving what is a pretty brutal experience for many complainants in these types of cases. So with those brief remarks, I commend this bill to the House.

The next call is a split call. Dr Kennedy Graham—5 minutes.

I may not actually take up the full 5 minutes, because, just to confirm, the Green Party will be supporting the Evidence Amendment Bill, as my colleague David Clendon has said already.

The bill makes a number of amendments to the Evidence Act 2006, the 2013 review having established that the Act is basically sound but that there were areas that could be improved upon. These three areas that now figure in the Evidence Amendment Bill certainly do do that, in the sense of offering protection to witnesses coming before the court, especially young children, many of whom have trauma from sexual abuse. I think it was the Attorney-General who said there were 450 cases a year involving sexual abuse that have child witnesses, so the ability for them to avail themselves of screens and other audiovisual devices for the future is well taken.

There are also advanced protections for other individuals who have engaged in similar trauma, and providing them with the advanced knowledge of the circumscription within which they are required to recount their own sexual experiences is critical to strengthening the bill, as well. Finally, there are the safeguards that will be put into place on the access to video records. These are all meritorious and we will be supporting the bill as a result.

I will just make one final comment before I conclude, and that is—not for the first time, no doubt, in this House—although an amendment bill goes some substantive way to improving the legislation on the books, the opportunity is passed up to take it further, in our respectful view, and get it to a stage where it is satisfactory. For that reason we did put forward two Supplementary Order Papers (SOPs) in the Committee stage. There was SOP 194, which would have provided greater control and restriction on intimidating questions. It would have sent a direction to judges that Parliament does not consider intimidation appropriate in our courts, and it would have let complainants know that intimidation would not be accepted, or could at least be challenged. That was voted down by a significant majority.

The other SOP that we advanced, SOP 195, would have given victims of sexual and domestic violence the same presumptive right as child witnesses to alternative methods of giving evidence. That, as my colleague Ron Mark just said, did attract New Zealand First’s support, for which we are grateful, and it was a close vote. It did not go through, by five votes—what an opportunity gone missing; so near and so far.

So we will be voting for the bill. We do commend the Government for introducing it. We are disappointed that it does not go quite as far as we think it should. No doubt there will be the opportunity to come back to this House to rectify those shortcomings when the time comes.

Tēnā koe, Mr Assistant Speaker. Thank you for this opportunity. I rise for the Labour Party in support of the Evidence Amendment Bill. I do want to extend on some of the comments already made across the House, firstly to congratulate the Justice and Electoral Committee, because, just like Mr Bishop, it was one of the first proposed bills before the select committee that I was able to get my teeth stuck into. I certainly learnt a heck of a lot from members across the House. Robust debate was had right through the select committee and, of course, in this House, and we have come now to what is a good bill, a bill that will pass through this House.

But I take the point by Mr Kennedy Graham and, of course, others in the House who have said: “It is a step in the right direction; sadly, we feel it could have done a little bit more.” I am reminded of the words of Sir James Hēnare, who said: “[We] have come too far not to go further.” This is one of those opportunities where, perhaps, we could have done just that little bit more to ensure that the trust, the faith, and the integrity of the system are sound and strong. We know that in recent weeks it has come under question and it has come under fire.

We know that it is important in society that when those who are processed through the justice system, or for those who have had to appear in front of the court to give evidence and for other matters, we want to make sure that they enter into a system that is fair—a system that carries strong integrity in the eyes of the New Zealand public. I think that this particular bill goes a long way to doing that. It keeps in step with some of the technological changes that, too often, this House is too slow to realise, and I think that is a good thing.

I also want to comment on the ability for children to give evidence in a way that will protect them, in a way that will ensure that revictimisation does not occur, and that tamariki who have important things to say in matters in front of the court are actually heard and are looked after. I also note that, in the bill, the judge also allows for support people to be there for those tamariki, whether one or several. That discretion is left up to the judge, but I think that is an important step. To leave a child in the care of officials or lawyers on such a heavy issue, on an issue that will no doubt have severe consequences, not just for the child but for the entire case—I think it is an important step forward to make sure that those tamariki, those children, receive the kind of support that they deserve when they enter into the justice system. It is good lawmaking. It makes sure that the evidence that is provided is robust.

The members across the House have already spoken about many parts of the bill, but I just want to finish my contribution, given it is a short one, about that opportunity to do just that little bit more. It has been mentioned about the age, it has been mentioned about the Supplementary Order Papers from the Green Party and across the House, and this is one of those opportunities where—and I take the words of Mr Bishop, who said: “Look, perhaps we’ll end up finding ourselves back here to do just a little bit more.” That is a bit of a shame, given that the opportunity presented itself in this term of Government. We hope, then, that in the future we will come back here and we will be able to make this more robust to make sure that the integrity and the way in which the New Zealand public views the justice system are in good stead and are in good vein. Kia ora.

This is the first opportunity that I have had to participate in the debate on this bill. I did not sit on the Justice and Electoral Committee, but as a former member of the committee—indeed, a former chair of the committee—I am delighted to see that the committee has done really good work on an important piece of legislation.

The chair, Jacqui Dean, I think has clearly led a collaborative, worthwhile process that members have been able to participate in, in a cross-partisan way, to achieve a very good result for the Parliament. So in this third reading of what is largely a technical bill with many technical aspects, there are just a couple of points that I do want to highlight and make mention of in the time that is available to me.

This is a bill that will undoubtedly help ensure that vulnerable victims, when they are giving evidence, are better supported through our justice system. For many people there can probably be few more daunting prospects than having to participate in the judicial system as a witness, and sometimes as a witness under hostile questioning from an aggressive legal counsel. It can be very daunting and very intimidating indeed, and none more so than for young people, particularly children, who, from time to time—in fact, too often—are involved in having to give evidence in matters relating to our justice system, particularly our criminal justice system. The use of better, modern technology to help ensure that young children are better supported when they are giving evidence is, I think, a welcome move. It is something that the House clearly wants to adopt, and I think it will be well received, not only by the members of the judiciary but also by those legal officers who participate in it. So the presumption in this bill will be that child witnesses give evidence in alternative ways, rather than having to stand in a dock unsupported. This ability to give evidence in alternative ways, with, when necessary and when required, the support of another person, I think is a very important and progressive step forward in terms of what we are seeking to do.

This is a good bill, I support it, and I am very pleased to see that the committee and members across the House have done a good job on it.

I am going to just take a very short call on this bill, which has, as we have heard, support from right across the House. It is something that I think perhaps the public, when they are watching Parliament, forget: about three-quarters of the bills that come through this House are actually supported by everybody—or a great majority of the people in this House—who are working to help and push and move things through to make New Zealand a better place. Obviously, it is the issues that we disagree on that, of course, attract the attention, and, unfortunately, it distorts the view in which, perhaps, many of us see the House.

I am very aware that the main event has arrived in Parliament here, in the form of Kevin Hague, and I just want to say before I start and just go through a couple of issues on this bill that we will miss Kevin. He has been a terrific colleague to have in the House, in Parliament, and in politics. I wish you all the very best for the future, Kevin, but I think Parliament will be less of a place without your wisdom and the thoughtful way that you have interjected and worked on issues—so all the very best.

As I said, the Act that this bill, the Evidence Amendment Bill, amends was enacted in 2006. It would have made lives a lot better for many people who were facing the gruelling experience of standing in front of a court and having to relate intimate details of their sexual history, etc. in front of court rooms, often in front of the person who was alleged to have carried out those crimes, if the provisions in this bill had been passed then. That was 2006; it is now 2016. It has taken 10 years for this bill to come into the Parliament. It will be passed today; it will be passed, as I said before, with the full support of this House, but I just cannot help but think, if it had been passed earlier, how many people would not have had to go through that experience, as a result of this bill taking so long.

Although I commend the Justice and Electoral Committee and the work that it has done on this bill, I think the Government really needs to front up and realise that, actually, it could have done a lot better on this. New Zealand has a pretty terrible record when it comes to domestic violence and sexual violence. We are fifth from the bottom of 31 OECD countries. We kill one child every 5 weeks and, of those children who die, about 90 percent of them die by the hands of people whom they know. It is not a great record. When it comes to rape and sexual violence, it is estimated that of 100 sexual violations, about 10 percent will be reported and only 1 percent will result in a conviction. That is pretty terrible as well.

This bill will not fix the conditions and the reasons why those offences are committed, but it will make the experience of people who are giving evidence in front of a court that much easier. People have gone through the reasons for this earlier, but first of all, for example, it will mean that children, by right, will not appear in court but will give evidence through an alternative way. That is good news.

I think it was Mark Lyon who molested several children. The father of one of those girls who was molested by him said that if we had had this legislation in place it would have made her life far less traumatic and far easier to give evidence in a private room, rather than knowing that Mark Lyon was at the end of a video camera and able to see everything that she was doing and saying. So that is one good thing. It places restrictions on video evidence that is collected. That evidence cannot just be shared around. It has to be viewed inside a police station.

There are a number of—I just want to mention two, because I know time is ticking on. Those are two very important changes that the Evidence Amendment Bill makes, to make the prosecution of sexual and domestic violence and general violence that much easier on victims. It is, as people have said, something that has the full support of the House. It is something that has been worked on. We have heard a lot of very good submissions from some of the top lawyers in the country, most of whom have made suggestions, but in general have agreed upon the legislation. There is a feeling that it does not go far enough. There is probably a sense that we will be back here, amending it one more time. But nevertheless it is a positive step forward. Labour is very pleased to support this legislation in the House today.

It is a pleasure to take this, the final call on the Evidence Amendment Bill. I would like to echo the words of colleagues from across the House who are supporting this bill. I would also like to acknowledge the Minister of Justice and the Justice and Electoral Committee for getting the bill through to its third reading.

There are a number of actions and benefits with this bill, and I will briefly highlight some of them. Some of them have already been explained this afternoon. First of all, this bill creates the presumption that child witnesses will give evidence in alternative ways. The clear benefit there is that this improves the environment for children to provide evidence by default, not by request. I think that this, importantly, also standardises the child evidence process.

I think that another clear benefit is that sensitive evidence will be available only on a need-to-have, need-to-know basis, with improved security particularly for video recordings. The benefit here is the surety to those giving evidence of appropriate distribution and monitoring of that evidence. The third feature I want to highlight is the pre-hearing notice of admission of the victim’s sexual history. The benefit here will be allowing pre-trial admissibility and preparation.

The second to last feature I want to highlight is plea discussions. They will now be covered by privilege. The benefit here is that this encourages frank discourse and early disposal of cases. The final feature I want to highlight is that previous consistent statements will now be admissible. The benefits here are that the jury can hear a logical and coherent narrative. This is an excellent bill. I commend this bill to the House, with thanks.

Bill read a third time.