Evidence Bill

CHRISTOPHER FINLAYSON (National) Link to this

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

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

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

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

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

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

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

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

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

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

Hon MARK BURTON (Minister of Justice) Link to this

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

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

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

KATE WILKINSON (National) Link to this

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

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

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

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

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

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

CHRISTOPHER FINLAYSON (National) Link to this

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KATE WILKINSON (National) Link to this

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

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

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

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

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

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

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

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

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

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

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

NANDOR TANCZOS (Green) Link to this

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hon MARK BURTON (Minister of Justice) Link to this

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

CHRISTOPHER FINLAYSON (National) Link to this

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

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

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

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

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

CHRISTOPHER FINLAYSON (National) Link to this

Having bored the Committee silly on Part 3, I will be very brief on Part 5. There is only one clause I want to address: clause 194A. An important issue arose in the select committee. The issue was how, once the legislation has been passed, we will ensure that it is kept up to date. That is an important factor, bearing in mind the legislative history of the Evidence Act, which was first enacted in 1908 then amended three or four times. The last real substantial amendment to the Evidence Act 1908 was the Evidence Amendment Act (No 2) of 1980. So periodic review of this kind of legislation raises important questions. Given the huge amount of work that has been done by the Law Commission over the years and, more recently, the excellent work by the ministry, it is important to ensure that the new legislation is kept up to date. On the other hand, we do not want to see regular amendments as soon as there has been a case on a particular aspect. In other words, the legislation will need to have time to settle down.

That is why we discussed how we would best go with periodic review and who should do it. I will briefly address that second question first: should it be the Law Commission, which was responsible for preparation of the report; should it be the select committee; or should it be the ministry? We took advice from the Law Commission and from the ministry. As a consequence of that, we decided that the appropriate body for this legislation would be the Law Commission. The next issue is how frequently it should be reviewed. Clause 194A(1) answers that question: “as soon as practicable after 1 December 2011 or any later date set by the Minister by notice in the Gazette,” and thereafter on at least one occasion during each 5-year period following that date the Law Commission will consider this legislation.

I commend this bill to the Committee as a good model for post-legislative review. I am not saying that it should be all legislation, but, certainly, with this kind of legislation we do not want those finicky amendments that sometimes bedevil legislation. It will be good for the body that authored the reports that gave rise to the legislation to look at this legislation after it has been in operation for 5 years, and in a principled way go through the various provisions to see whether the sorts of innovations we have been talking about this afternoon actually work and, if they do not, what changes need to be made. So I simply say that it is a good and workable clause, and it will enable this very important area of the law to be kept up to date, not in a piecemeal or an episodic fashion but in a principled way.

CHRISTOPHER FINLAYSON (National) Link to this

I think I have really said my bit and will therefore be very brief. I do acknowledge the huge help of the ministry officials. I think Chelly Walton and Boris van Beusekom have done a superb job working with the Justice and Electoral Committee, as has Robert Fisher QC. I think the legislation that is about to emerge from the Committee is a good piece of work, and that work was done in a bipartisan way by various representatives of parties in this Chamber. So I am delighted that the bill has come through in this shape.

I have no doubt at all that in due course amendments will be needed, but I sincerely hope for the Minister’s and the ministry’s sakes we have not made any howlers in the body of the legislation such as will necessitate an urgent amendment bill before the end of the year. If that is the case, I certainly do not intend to be around. I simply emphasise that this is new legislation—

Hon MARK BURTON (Minister of Justice) Link to this

I echo the sentiments of the member who has just resumed his seat. Indeed, we should again put on record the outstanding work undertaken by the officials. But that work did add to the decade-long, as one member referred to earlier, work of the Law Commission.

It is interesting, as Chris Finlayson just noted, that Sir Geoffrey Palmer not only featured in the House’s earlier efforts in this area but, as President of the Law Commission, continues to feature as we progress this legislation. I believe, as I said earlier, that by drawing together common law and statutory provisions into one comprehensive scheme, and dealing with many of those ambiguities and inconsistencies that have accumulated over many years, the law book is being well served, notwithstanding the member’s warning to us all that as a new day begins, with it comes new opportunities to add confusion!

But I think this measure is a good example of the benefit of this institution and the others I have referred to working at their best. The Justice and Electoral Committee and its subcommittee considered what was already, I think, a substantial and good piece of work. In my view, the further amendments they made to it improved it. I think that we have before us the best efforts of many good minds and intentions, and that we are the better for it. I look forward to taking a call in the third reading of the bill in the not too distant future and seeing it enacted.