Hon MARK BURTON (Minister of Justice) Link to this
I move, That the Evidence Amendment Bill be now read a first time. As per the letter of 14 June 2007 to leaders of all parties from the Leader of the House, the Hon Dr Michael Cullen, I intend to move that the bill be considered by the Justice and Electoral Committee, and that the committee report finally to the House on or before 22 June 2007.
Briefly, this bill deals with an amendment to the Evidence Act 2006, which was passed last year but is not yet in force. An unintentional error was made by the select committee, with unintended consequences, in relation to the co-conspirators rule. In broad terms, the bill ensures that a common law rule, commonly known as the co-conspirators rule, is included in the new Evidence Act. This matter requires legislative amendment prior to the Act coming into force. I want to take this opportunity to thank members and parties generally for their indication of cooperation and facilitating the rapid progress of the bill.
This is an important amendment as it has serious implications for criminal trials involving multiple accused, and evidence obtained by interception of communications. These cases generally involve major drug-dealing, organised criminal enterprises, or serious violent offending. These types of multi-defendant trials are costly, lengthy, follow from resource-intensive investigations, and often have a high profile. It is therefore important that the common law is maintained.
The co-conspirators rule has particular impact in respect of section 27 of the Act, which deals with defendants’ statements offered by the prosecution. This section incorporates the common law into statute, by providing that a defendant’s statement is admissible against him or her, but is not admissible against a co-defendant in the proceeding. There are three common law exceptions to this rule that are not included in the Act. The first two are collectively known as the co-conspirators rule. These rules provide, in the case of conspiracy, that the statements or acts of one conspirator that are said or done in furtherance of a common design are admissible in evidence against another conspirator. The second exception provides that although a conspiracy is not charged, if there are two or more persons engaged in a joint criminal enterprise, the statements or acts of one that were said or done in furtherance of a common design are admissible in evidence against the others involved in the joint criminal exercise.
As stated above, the application of the co-conspirators rule at common law is broader than just co-defendants. It also applies if the co-conspirators or persons involved in joint criminal enterprises are not co-defendants—for example, if one or more members of the conspiracy had pleaded guilty or there are separate trials where there will not be a co-defendant but the prosecution may still want to offer the evidence of what that person actually said. The common law allows such evidence to be admissible.
So the bill captures this by inserting new section 12A, in clause 5, into the Act. That new section states: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” An amendment only to section 27 might mean that the rule was inadvertently narrow, and would cover only cases where the co-conspirators or persons involved in joint criminal enterprises are also co-defendants. The amendment to create new section 12A means that all aspects of the common law are in fact captured.
There is a third common law exception to the rule that a defendant’s statement is admissible against him or her but is not admissible against a co-defendant in the proceeding. This is where the co-accused by his or her words or conduct accepts the truth of the statement made by the defendant. The bill incorporates this common law exception into the Act by way of an amendment to section 27.
The original Evidence Bill was based on the Law Commission’s draft evidence code and changed the common law to provide that if a defendant’s statement offered by the prosecution was admissible, it was admissible against the defendant and any co-defendant. Amendments were made to the Evidence Bill by the select committee to retain the current law. The committee’s report to Parliament reflects that intention and states: “We recommend that section 27 be amended so that a defendant’s statement would be inadmissible against a co-defendant in a joint criminal trial. A statement made by a defendant would be admissible only against the defendant. This would maintain the current law relating to statements by co-defendants. In our view the admission of such a statement against a co-defendant would unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and the complexity of many joint trials.”
Although the select committee intended to maintain the current law, it did not include the common law exceptions to the general rule. Accordingly, consistent with the committee’s intent, this bill amends the Act to include the common law exceptions in the Act. I commend the bill to the House.
SIMON POWER (National—Rangitikei) Link to this
The National Party will be supporting the progress of the Evidence Amendment Bill in all its swiftness. I thank the Minister of Justice, and the Attorney-General and Leader of the House, for bringing to the attention of the National Party a defect, I guess is the best word, in the original bill, which has to be remedied. It would be inconceivable for multiple-defendant methamphetamine trials and the like to proceed without this type of evidence being admissible because Parliament did not get the Evidence Act right.
It would also be inconceivable for any political party, I say to Mr Fairbrother, to play politics with such an important issue.
We had some discussion with the Government around the process for implementing the bill, and I think we found a reasonable compromise to see this bill go to a select committee immediately and return, as I understand it, to the House on Friday, with a view to getting through the second reading, the Committee stage, and the third reading prior to the Evidence Act coming into force on 1 August. That will be an important milestone for that committee to meet.
I have no doubt that those members involved in the subcommittee of the Justice and Electoral Committee had no intention of excluding this particular co-conspirator evidence clause from the original bill. But, as has been explained to me by the Minister’s officials and by those from the office of the Leader of the House, essentially what occurred was that the Law Commission made some recommendations and when the subcommittee did not agree to those recommendations, the whole baby was thrown out with the bathwater, for want of a better phrase. And, in fact, what we saw was the rules of common law relating to the statements of co-conspirators or the like, removed from the statute book. That is unsatisfactory. The National Party certainly does not want to be associated with any error of law in relation to those involved in particularly tricky trials, particularly multiple-defendant trials around serious drug matters. We do not want to be associated with any law that enabled those matters not to be fully investigated.
Section 12A, inserted by clause 5, is a very short one. It simply states: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” There is a further clause, clause 6, which relates to defendants’ statements offered by the prosecution. I have had quick look at section 27 of the Evidence Act, and clause 6 of this amendment bill purports to add a phrase to section 27(1), which makes the section make more sense in terms of co-defendants’ words or conduct at the point that evidence is offered by the prosecution.
I also want to say that this is in no way a reflection on those hard-working members of the subcommittee of that particular select committee, who were dealing with an exceptionally complicated piece of work. In fact, we are lucky in this House to have four or five former lawyers of some expertise in this area. I include those members cross party who were able to wade their way through an exceptionally complicated piece of work. Heaven help the New Zealand Parliament had we not had those four or five people. Some of the rest of us might have been in the position where we had to decipher what was going on with this particular legislation. I am almost convinced that had that been the case, this particular amendment bill would be a lot thicker than the one we see before the House now.
I know that my colleague Chris Finlayson, who was on that subcommittee, will be speaking to this bill shortly, but I want to reassure the Government and the House that National will do whatever it takes to expedite this process, short of agreeing to an urgency motion, to make sure that this legislation is in place and is working in the way I am sure the subcommittee intended when the Evidence Bill passed through that committee.
RUSSELL FAIRBROTHER (Labour) Link to this
I rise to speak in support of the Evidence Amendment Bill and to pick up on some of the points made by my learned friend Simon Power, who has just taken his seat. I accept that the error we are amending was a mistake by the Justice and Electoral Committee. It is one that I do not think any of us takes any pride in, but we do find some excuse in the difficulties inherent in codifying what is a notoriously complex area of law.
The subcommittee had before it the full bench of the Supreme Court. We had the Legislation Advisory Committee. We had an expert former High Court judge and a well-regarded academic who advised us continually. We had advice from some very good officials, who worked diligently, and we had submissions from both the Law Society and the Criminal Bar Association of New Zealand among many other helpful and constructive submissions.
The point we are now rectifying was entirely overlooked. It was probably overlooked because the committee considered very seriously the amendment proposed by the Law Commission and was easily persuaded in the end—as nearly all the submitters and the officials advising us appeared to be—that the Law Commission recommendation went one step too far in allowing statements made by an accused in a trial to be used against a joint accused when the maker of that statement did not give evidence. The reason we decided that was that the inherent requirement of fairness requires an accused person to have the ability to challenge a statement that makes him or her look complicit in an offence, on the basis of fairness and other overbearing procedures.
Of course, if an accused is not present, then he or she lacks the ability to challenge such a statement, and two consequences could occur. One, an innocent person could be wrongly convicted on a wilfully misleading statement by a co-accused or, two, trials could become unnecessarily complex as accused troubled by a co-accused’s statement sought to challenge it by all sorts of means that really amount to a fishing expedition. It was on this point that the committee was unanimous in deciding to rein in the Law Commission’s recommendation, but it certainly did not intend to abridge the common law as it related to conspirators and joint criminal enterprises.
The concern that I have is twofold, and I hope the select committee will have time to look at it—I am sure it will, because this is a small bill. One, clause 6 amends section 27(1) and, on the face of it—and I have seen this part of the bill only this afternoon—seems to go exactly to the problem the subcommittee was concerned to avoid, as were our advisers, and as were most of the submissions received by the committee, particularly from lawyers and legal academics. The problem is the old rule that a statement by a co-accused is not evidence in court against any other accused unless that co-accused gives evidence from the dock and can be cross-examined by those accused. If clause 6 of this bill has the effect of undermining that, then I hope the select committee will address that issue. From my discussions with the Minister the impression I have is that it is not the intention of the Government to, by a side wind, widen section 27 as it appears to me to be on first reading. Therefore I expect the subcommittee to take a sensible approach to this and to achieve the Government’s aims, which are really to bring the law as it relates to conspirators and to joint enterprises into the Evidence Act by way of this amendment.
It is important to keep clear what the law is for conspirators and joint enterprise. First of all, a conspiracy or a joint enterprise must be established before a co-accused statement can be used as part of it. It can only be used as furtherance of that established conspiracy or to define the members of it. It cannot be used, in fact, to define the conspiracy. I interjected during Mr Power’s speech because he seemed to be suggesting that in any joint trial this amendment will allow all statements to be used. Of course that is the Rubicon across which we on the subcommittee did not wish to cross, and I believe the Government is similarly in that position.
The other aspect of concern I have is that we were careful to endeavour to codify the common law in the Evidence Act. Although the Evidence Act refers to the common law from time to time it is done so within the principles section, section 6. One of the important things is to try to make the law of evidence accessible to lay people. Paragraph (f) of the principles section refers to the ease with which the law is available to the readers of the law. Of course, if we are going to make broad reference to the common law we therefore defeat that purpose in section 6(f) of the Evidence Act.
I agree that this bill should quickly go through so that when the Evidence Act comes into operation on 1 August it is complete. I agree that urgency of attention to it by the subcommittee is required. But I hope that members of the subcommittee can also set their minds to codifying the common law principles, which the Minister Mark Burton has outlined in his speech. As put by him they are very clear and very succinct. The difficulty of common law is that it is never quite as clear and succinct as those who make statements on their feet in advocacy of a particular purpose. One of the beauties of the common law is that it is never ending and one can spend one’s whole life in trying to understand it and achieve much satisfaction and joy in the process—and also much social isolation. But it is possible to codify, and we have endeavoured to do that in the subcommittee. I believe that the Justice and Electoral Committee must have the ability and the resources to attempt to codify what is contained in clause 5, which is the new section 12A of the Evidence Act. I commend the subcommittee to that aim.
Using this amendment to invoke the common law really has, by a side wind, the effect of encouraging judges to go where they would naturally want to on many occasions: to the common law rather than to the statute. Underpinning the Evidence Act is the concept of fairness and the availability of almost any evidence on the basis of relevance, and fairness and unfairness—they are the key tests. If we bring in the common law against the new principles in the law, we have the risk of, by a side wind, expanding the Evidence Act into an area we tried to avoid by codifying it as far as we did. I stress again to the House the importance of the Justice and Electoral Committee looking at clause 5—and, of course, clause 6, but clause 5 particularly—to see whether it is not possible to codify that which we failed to do when the subcommittee was looking at the original bill.
I can assure the House that if the minds of the members of the subcommittee had been drawn to this defect—and I accept it is a defect—we would have addressed the issue and we would have come up with an adequate codification to enable trials for conspirators and persons alleged to be involved in joint criminal enterprises to take place using the tools of the common law, and using statements of co-accused made out of court to establish the membership of those conspiracies or joint criminal enterprises or what was done in furtherance of those aims. This is a particular exception to the hearsay rule and the use of statements of co-accused and I hope the subcommittee will have regard to that and keep the debate and the amendment within those very narrow and precise confines.
I commend the Government on picking up this oversight. I noted an article by an academic about 2 months ago that signalled this defect and I think the Government is to be commended for dealing with this with alacrity. I hope the subcommittee can do likewise and can come out with a more perfect product than we produced on first flight.
LINDSAY TISCH (National—Piako) Link to this
I raise a point of order, Madam Speaker. Our list here shows that the fourth speaker is National and the fourth speaker is the next speaker.
The ASSISTANT SPEAKER (Ann Hartley) Link to this
I am sorry, Mr Tisch. You are right but I have called, if the member wants to speak.
Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this
The urgency of this legislation is perhaps underscored by the greater context in which this bill sits. On the one hand the bill is all about sorting out a technicality. We all appreciate that the Evidence Act 2006 is scheduled to come into force on 1 August 2007. Given the short lead-in time until the bill becomes a reality, it is therefore also appreciated that an urgent amendment is required in order to avoid serious implications for trials involving multiple accused charged with serious criminal offending. We recall also that the Māori Party supported the passage of the Evidence Bill in which this rule was meant to be included, so our support today is consistent with that original position.
However it is the particular case of the multiple defendant methamphetamine trials that has certainly grabbed my attention to this matter before the House. As we understand it, the problem relates to section 27(1) of the Act from which the co-conspirators rule has been unintentionally deleted. So why is that so important? The Minister has clarified the context in that under that rule statements by one defendant are, in defined circumstances, admissible as evidence against another defendant. The most usual circumstance of this is in drug trials where the intercepted statements of one may be used against others who are also involved in criminal enterprise or even gang offending.
The House will know that these issues are very dear to my heart. My involvement with campaigns targeting drug offending was given particular focus through the Patua te Ngangara or Beat the Demon drug education programme that we initiated from Hoani Waititi Marae in 2003. It was a joint initiative where we invited the participation of the police. We produced an education programme to take around the districts, and we trained the police officers—one from each district—in talking to this display. We gave them a script and sent them back to their districts, then we went around the districts to help them set up the programmes.
We used graphic images, including photos of brains with holes in them caused by the street drug known as P, which burns out nerve receptors in the brain, and the personal testimonies of people affected by drugs. We took the programme out to marae, to the Royal New Zealand Police College, we came here to Parliament to appear before the Māori Affairs Committee, we went to Waiwhetu Marae in Lower Hutt, and all over the motu. But we did not present just to marae; we went to schools, to hospitals, to community centres, and to town halls. We presented to the Mongrel Mob, Hell’s Angels, and Black Power. We talked to them all about the consequences of being involved in the conspiracy world that is associated with methamphetamine, from Kaitāia in the north to Invercargill in the south.
So I come to this take—the technicality around the co-conspirators rule—with their voices in my head. I remember whānau grieving about how P, methamphetamine, broke up the family. They were stories no one wants to hear—about young girls prostituting themselves to feed their parents’ habits. The substance intrudes upon the normal patterns of everyday life. I think of the tears shed by grandparents talking about their children being unable to focus on the tasks of parenting—feeding, changing, and washing their babies while under the influence of P, methamphetamine. When I think of children I know too of children as young as 9 being sold P in fruit-flavoured tablets. As MP for Tamaki Makaurau, and as an active participant in the Hoani Waititi Marae Patua te Ngangara programme, it is particularly those children who drive me forward in our campaign to stamp out methamphetamine.
Almost half of Manukau City’s population—42 percent—is under the age of 25. A survey carried out by the Manukau City Council a few years back found that 39 percent of the youth respondents said that dealing with drugs and alcohol was a major issue for them. Along with alcohol, violence, and dishonesty, drugs topped the list of crime issues that they were most concerned about. So when we came to this Evidence Amendment Bill and contemplated the implications for major drug-dealing, organised criminal enterprises, or serious violent offending, we believed this amendment to be crucial and critical.
I really commend the local councils that are working with iwi, with police, and with Government agencies to remove the pushers, the crooks, the suppliers of this drug. I think that today’s action in remedying the omission of the co-conspirators rule, in including the common law exceptions to the general rule, is another vital step in making change. As I understand it, the Justice and Electoral Committee always intended to maintain the rule but section 27(1) of the Act clearly abolishes it—a rule that has always been part of the common law and that was intended to be retained in the Act.
So it would seem that the most logical remedy for this situation is to amend the Act under urgency before it comes into force on 1 August 2007, and we are happy to do that. We support any moves that will help our nation to rid itself of the damage caused by people manufacturing, distributing, and selling methamphetamine. Indeed, we welcome today’s urgent action as a response to a call that I made in this House on 23 February 2006, that Parliament could lead a campaign to stamp out P. We know that some incredible efforts are occurring at a community level. In Murupara the townsfolk have vowed to clear the streets; to declare P-free zones. The iwi of Tauranga ran a high-profile campaign, including advertising on local radio and television, resulting in P-related crime in the region dropping by 20 percent. Communities came together and marched to Parliament last February in the fight against P; there have been marches in towns all over our country. Other tribes have put up a rāhui—a ban—in effect prohibiting the manufacture, supply, and use of methamphetamine in that area. A rāhui is generally reserved for the protection of ocean and land, generated as a method to conserve future generations of resource.
It seems entirely appropriate also to protect our future generations against P. Therefore, the introduction and first reading of the Evidence Amendment Bill today builds on the community efforts and consolidates the application of common law, of ensuring criminal trials will not be obstructed in following the course of justice. Urgent enactment of the Evidence Amendment Bill will ensure that the common law exceptions relating to the admissibility of evidence will have major implications for criminal trials involving multiple accused, such as is commonly found in drug trials or trials involving gang-related criminal activity.
The admissibility of evidence of co-conspirators and persons involved in joint criminal enterprise was based on a code drafted by the Law Commission. Of course, one would expect the same standards of rigour and integrity to apply in the examination of evidence as we would expect of any evidence admissible in a court of law. All things considered, we are happy to support the urgent legislation amending the Evidence Act 2006.
Finally, I am reminded of one of the slogans associated with the campaign of speaking out against methamphetamine, P—namely, “There is no P in community”. I am pleased that this bill today moves another step forward towards ensuring that any criminal-related activity associated with multi-defendant trials is able to be heard in the context of sound legal rules for the pursuit of justice for all. Kia ora.
CHRISTOPHER FINLAYSON (National) Link to this
As Mr Power indicated, National will support this legislation and will certainly cooperate in having the matter dealt with expeditiously at the Justice and Electoral Committee on Thursday. Perhaps it sounds like a conspiracy on the part of the subcommittee that dealt with this matter—that subcommittee being under the chairmanship of Mr Fairbrother and comprising Mr Tanczos, Dr Worth, and myself—but it was certainly not the intention of the subcommittee to alter the law and abolish the three common law exceptions by some kind of side wind.
Perhaps it is interesting to go into the legislative history of the matter, just for the sake of completeness. Clause 26 of the Law Commission’s draft code could probably well have been a better formulation than the clause adopted by the select committee. That clause provided that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible unless three exceptions are made out. When the bill was being dealt with in the select committee, the relevant clause was clause 23. I think that is where the drafting went wrong, and it made its way into the legislation as section 27.
As Mr Fairbrother correctly observed, a number of senior and august people made submissions on this legislation—from Supreme Court judges to members of the Rules Committee to other members of the Law Society to others, including legal academics—and this point was not picked up on the way through. Indeed, when I went through my papers I found that on 5 September the Law Society made a submission that the common law rules surrounding the admissibility of defendants’ statements in trials involving one or more defendants would be changed if the then clause 23 was amended. The society proposed a possible amendment to the clause, but it did not actually address the issue now raised by this amendment. Indeed, the papers of the officials referred to clause 23. There was some debate on unrelated matters, and they too recommended no amendments to the clause.
So it does seem that the point in issue went through a number of filters, yet was not picked up by members of the subcommittee, the select committee, the officials, or the submitters. All that one can say to the House in those circumstances, on behalf of the subcommittee, is mea culpa. I guess that is what happens when there is a once-in-100-years comprehensive review of legislation and a subsequent codification.
As the Minister and Mr Fairbrother have outlined, the amendment deals with a very important issue. The amendment has already been explained by the Minister. The rules of the common law relating to the admissibility of statements of co-conspirators, or people involved in joint criminal enterprises, must of course be preserved.
I must say, however, that I agree with Mr Fairbrother when he expresses a concern about the terminology of the proposed section 12A, inserted by clause 5. That section, I remind members, states: “Nothing in this Act affects the rules of the common law relating to admissibility of statements of co-conspirators…”. Mr Fairbrother quite correctly referred to section 6 of the Act, which sets out the purpose of the legislation. One of those purposes, in paragraph (f), talks about the desirability of enhancing access to the law of evidence. There were a number of occasions during the course of the select committee stage when the select committee attempted to define just what exactly the rules of common law are. I believe this is an occasion where it should not be beyond the wit of the select committee, within a short space of time, to define just what exactly the rules of the common law are, which would enhance access to the legislation. I do not know the Minister’s view on that, but we should be able to improve that clause in the select committee on Thursday, and perhaps the Law Society and the officials may wish to get together and see what can be done about that. We will certainly cooperate in that.
The other measure that perhaps needs a little thought, as Mr Fairbrother pointed out, is clause 6, and it could well be that Mr Tanczos will say something about that. I will leave it to him.
As Dr Sharples said, there are many situations where there are multi-defendant trials—for example, for the supply of class A drugs. Often, as the explanatory note of the bill says, statements are intercepted by the police. They are used against others who are involved in the conspiracy or who are partners in the enterprise, and it is extremely important that those statements are admissible.
So there we have it. It is best for these matters to be remedied now, rather than to imperil a number of forthcoming criminal trials. Everyone knows that the job of the High Court in these trials is difficult enough as it is. Creating further difficulties for the criminal justice system by not dealing with this legislation in an expeditious manner is the last thing that any member in this House wants to see happen, and for those reasons we will support the legislation.
But I do say that—and perhaps Mr Fairbrother was a bit too defensive—codification brings with it the inevitable hiccups. I can recall that in 1985-86 the code of civil procedure was repealed, and the new High Court Rules were introduced. They created fundamental changes to the way that the civil justice system was run in the country. For example, it was decided by the Rules Committee of the High Court that there would be one mode of commencing proceedings in the High Court—namely, by notice of proceeding and statement of claim. So the originating application, the originating petition, and the originating summons procedure were all abolished, as indeed was the way of commencing proceedings by means of writ of summons and statement of claim. But before the High Court Rules were introduced, it was recognised that urgent amendments would be required to reintroduce the originating application for a miscellany of proceedings—for example, for applications under the then Law Practitioners Act for people to be admitted as barristers and solicitors of the High Court.
So when one is dealing with a major exercise in the codification of the law—and, as I said, the last time the law was thoroughly reviewed was as far back as 1908—it is not surprising that there is the occasional hiccup. For that reason I, while wanting to deal with this matter urgently and comprehensively, must say I cannot get too hung up about it. As the late Alan Martin would have said, it really is the putting right that counts. I am sure the select committee will be desirous of putting it right at the earliest possible opportunity, which is why National supports this legislation.
Dr RICHARD WORTH (National) Link to this
There has already been a clear indication given by National as to where it stands in respect of this amending legislation. I would make these observations.
The Evidence Act sets out to codify the law of evidence. Prior to that, we had a mix of statute law and of common law rules. These common law rules are developed by the judges; they are part of the judge-made law. It was a major undertaking to codify the law of evidence that was intended. I think that is to be well seen in the fact that the Law Commission report that had recommended such codification was in a complex report of two volumes, published in August 1999, nearly 8 years ago. So it was that the relevant committee of Parliament set about the task of looking at the work that parliamentary counsel had done to effect that intended codification. Because it was complex, it was decided to establish a subcommittee—and we have heard of the composition of that subcommittee—and to engage expert assistance, and that happened.
The starting point for looking at these issues that arise is in the principal Act in section 27. It is in Subpart 3, under the heading “Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings”. The short point is based on section 27(1), which has the heading “Defendants’ statements offered by prosecution”, and reads: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.”
Members have heard that there was a divergence of view between the Law Commission and the way it wanted the law to be drafted, and the subcommittee. There are different perspectives and there are different philosophies; those differences are well known. I would simply comment that some of the arguments that arise, in looking at what might be the preferred position, are that it obviously offends common sense to exclude from a jury’s consideration the evidence of accomplices—who are often the only witnesses to the crimes—and that there is no compelling reason not to rely on evidence that the prosecution has obtained fairly in establishing the case against all of the defendants.
Mr Finlayson has seen this as a mea culpa situation. That, it certainly is. But it might also be characterised as something akin to an Homeric nod. That phrase was coined by the Roman poet Horace in his Ars Poetica, where he said: “et idem, indignor quandoque bonus dormitat Homerus”, which translates to: “and yet I also become annoyed whenever the great Homer nods off.” Just as we found an error in this legislation, there are numerous continuity errors in Homer that resemble nods. I take just one example from the , where Menelaus kills a minor character Pylaimenes in combat, but in a later section of the he is still alive to witness the death of his son.
So it is that we see, in this legislation, in two parts, a series of small amendments. They are small amendments in terms of the length of the material, but they are significant, for reasons that others have identified in the context of change to the law. In particular, in these major drug trials, there is the need for clear rules to be put in place touching the co-conspirators rule.
I would just say this. It is intended that the Evidence Act be a code, and there are a number of indications of that intention in the statute. Two indications, for example, are in sections 10 and 12. This amendment, desirable though it is as to its intent, opens up a residual common law possibility, which I think is undesirable. It would be far better, when the Justice and Electoral Committee comes to consider this legislation, if the committee could actually put into statutory form what the exceptions are to be. We know what they are. The exceptions are to be: first, where the co-defendant accepts the truth of the statement; second, things said and done in furtherance of a common design in a case where conspiracy is alleged; and, third, things said and done in furtherance of a common design where the accused are alleged to have engaged in joint criminal enterprises.
This legislation is clearly required. National supports its passage in a speedy way, but I just invite the committee to think about the issue that I have raised, and the desirability of maintaining in a stand-alone form, without the need to resort to extrinsic aids, a code of evidence.
NANDOR TANCZOS (Green) Link to this
Let me first say that I agree with the comments made by previous members who spoke on the Evidence Amendment Bill. I accept that this was an oversight by the Justice and Electoral Committee, and it is something that needs to be rectified fairly swiftly, which is why the Green Party, like other parties, has not denied leave and will support this bill going to the select committee. The Government has indicated some quite specific concerns that need to be addressed, and we are aware that some urgency is required around the passage of this bill, so that is why we are supporting a speedy process. Mr Power said the bill was a short one. I agree, and perhaps, in a way, that is part of my concern. The concerns I will speak about echo the comments of previous members, and I think the issues have been quite well covered.
When we looked at what is now the Evidence Act 2006 in the Justice and Electoral Committee, we were concerned about the original proposal of the Law Commission that if a defendant’s statement offered by the prosecution was admissible, that evidence should be admissible against co-defendants. We thought that the Law Commission went a little bit further than we were comfortable with, and certainly further than most of the submitters to the select committee and the advisers were comfortable with. Previous members have talked about the range of advice that we got on this matter. So we amended the bill, and what we ended up with was section 27, which states, in subsection (1): “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant but not against a co-defendant in the proceeding.” That, I guess, is where the difficulty has arisen, because in some kinds of cases we would want that evidence to be admissible, and that is what the common law has previously recognised.
If we look at the amendment bill, we see that it is quite short and has some fairly simple things in it, but I would just like to touch on them, because I think there are some significant concerns. I think those concerns can be addressed by the select committee, but it is important to highlight them and make sure that the select committee addresses the issues, particularly because we have a foreshortened select committee period for dealing with the bill. The first concern is in relation to new section 12A, to be inserted after section 12. The section is headed: “Rules of common law relating to statements of co-conspirators or persons involved in joint criminal enterprises preserved” and continues: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.”
I just highlight that in contradiction to section 6 and section 12 of the Evidence Act 2006. This, again, is something that has been addressed by other members. The last provision in section 6, “Purpose”, is: “enhancing access to the law of evidence.”, and we paid a great deal of attention to this in the select committee in order to make sure that the rules of evidence were laid out as clearly and straightforwardly as possible in this Act. It would seem to me that new section 12A runs right through that purpose, because it establishes a whole new area of unclearness, and I think that is unfortunate in the context of what the legislation was actually trying to achieve. Section 12 of the Act states that if there is no provision in this Act or any other enactment, or if an issue is not dealt with adequately: “(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be made, must be made having regard to the common law.” So it is saying that where there is uncertainty or unclearness, the common law should be applied in so far as it is consistent with the purposes and objectives of the Act.
I guess the thing that concerns me about new section 12A is that it states that nothing in the Act affects the rules of the common law relating to those matters. Rather than saying that the common law should be used where it is consistent with the new Act, this provision says that in this case, the common law overrides the Act. That seems to me to be inconsistent with the formulation and the intention of what has previously been here. So I think that is something that the select committee should pay some attention to.
As I say, it does leave a large area of uncertainty. I am not as learned as the other members of the subcommittee who dealt with the Act, and that is one of the reasons why I do not take as much responsibility for the mistake as them. Although those members may be clear about what the common law says in this instance, I am not, and if we are simply referring to the three exceptions that were previously stated, then we should state that clearly. The thing that worries me is that if we are going to put in this fairly blanket statement about the common law and give it an overriding power, it is important that we clearly state what those common law rules are. Members have said that the select committee should be able to do that, and I see no reason why not, but there is a foreshortened time period, so I think it is something we should make sure we devote attention to and make sure that we clarify.
The other significant new clause in the Evidence Amendment Bill is clause 6, which amends section 27(1) by adding the words: “unless by the co-defendant’s words or conduct, the co-defendant has taken to have accepted the truth of the statement made by the defendant”. This is the clause I referred to earlier. So section 27 (1) would state: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding”—and now the following phrase is to be added—“unless by the co-defendant’s words or conduct the co-defendant is taken to have accepted the truth of the statement made by the defendant.”
At first glance, that does not look too problematic, but then it led me to start to think what we mean by their words or conduct being “taken to have accepted the truth of the statement …”. That started to raise some concerns—or at least some cautions—in my mind, because it is such an ambiguous statement. An example was put to me where an accused gives a statement that contains some details, and the counsel for the co-accused—where the co-accused is not giving evidence—asserts some of those same details in the course of cross-examination. Does the assertion of those details imply acceptance of the truth of that statement? Does it imply acceptance of the truth of part of it? I think it is unclear. Perhaps that is simply because I am not as learned as some of my colleagues, but I think there is an ambiguity about what we mean by “taking someone to have accepted the truth of a statement”. That is something I would like to see clarified, in terms of both its intent and the actual wording of that clause.
I also refer to the comment that Mr Fairbrother made earlier around the question of whether we would be inadvertently opening the door to the admissibility of hearsay evidence beyond the narrow confines that the select committee quite carefully arrived at. I think that there is clearly an issue here that needs to be addressed. It needs to be done with some haste, and we accept that, and we accept a process for doing so. Nevertheless, in my view there are some problems with the bill as currently drafted, and I think it is important that the select committee puts its mind to clarifying that, so that in terms of a bill intended to codify the laws of evidence, that is what we actually end up with.
RON MARK (NZ First) Link to this
I will not hold the House’s time too long. In fact, I will take advice from Nandor that it is time for this bill to proceed—
The ASSISTANT SPEAKEROh, we are mates. I refer to Nandor Tanczos, the honourable member—have you not met him? He is a great guy. He is quite correct that it is time for this bill to proceed, given the gravity of the situation now presented to the House through the omission, or the error, that was made in the Justice and Electoral Committee. Sometimes these things happen, and I guess it is appropriate that those who are best positioned to understand the problems presented through the submission and to analyse the proposed amendment, which is designed to correct the situation we now have with the Evidence Act 2006, be given the task and the opportunity to get on with that business as quickly as possible.
Let me just say that New Zealand First views with deep concern any flaws in our law that would make it difficult—indeed, in this case, impossible—for the police to bring prosecutions against people who make up organised criminal gangs, who deal in and peddle methamphetamine and spread misery. It is worthy of noting right now because once again we have in the papers a family member of a very high-profile New Zealander reportedly dealing with the issues related to the use of P. It is not the first time that a high-profile New Zealander has been brought to the attention of the country and the courts for using this drug. We in New Zealand First can only ask what more signs this country needs as to the seriousness of the issues of drugs, organised crime, and the preying upon our communities, our loved ones, and vulnerable people by people such as this. How more serious can it possibly be?
It is timely that we go back and correct the errors or omissions that have been made in the select committee and tighten our laws and remedy this problem. Might we suggest very humbly to the House, from New Zealand First’s perspective, that there is more we should be doing. This is not just a passing moment in our history; this is something that has been eating away at the social fabric of our nation for decades. The problem now is that we are dealing with an insidious drug that destroys the mind and from that destroys the lives of countless New Zealanders, not just the individuals who partake in and use and abuse this drug, but the victims who they create along the way, as they do whatever they have to do to earn the money to feed the pushers who are supplying them with methamphetamine.
We in this country—and, sadly, we in this House—probably will not understand the price being paid in our communities until one of us sitting here in this Chamber has to deal with it in our own family in such close proximity as Paul Holmes and his family are now. Television front-men come and go. We hear their stories, and our heart goes out to those people. We also ponder and wonder as to what it is in the minds of people that leads them into using this drug in the first instance. Maybe it is just a lack of education, a lack of understanding, a missing something in their lives. Maybe they are looking for a cheap thrill, a cheap trick. Maybe it is the fashionable thing to do. Maybe it is what everybody else is doing. One thing we know for sure in New Zealand First is that the people who manufacture, distribute, sell, and market these products know exactly what they are doing. They do it for one reason and one reason alone, and that is profit, so that their lifestyles may be improved at the expense of others.
We have an omission, an error, a gap in our law that was not brought about deliberately; it is one of those things that can happen in a select committee, and clearly the House has identified the need to move expeditiously on this. Might I suggest that while we are doing that, and when we come back to debate this in the second reading and through the Committee stage, we really seriously consider what it is that we will do as a nation of people, as a collection of parties that are formed along particular philosophical beliefs and against specific policies, and as individual members of Parliament to drive these people who manufacture and distribute such an insidious drug out of this country, out of our communities, and out of our lives.
We in New Zealand First are dead serious about this and we are committed to this. That is why members will see even tighter legislation come to the floor of this House from New Zealand First. It will be legislation to outlaw and ban the existence of gangs, and I look forward to tabling that document.
Hon MARK BURTON (Minister of Justice) Link to this
Evidence Amendment BillI move, That the Evidence Amendment Bill be considered by the Justice and Electoral Committee, referred to Justice and Electoral Committee