Evidence Amendment Bill

Hon MARK BURTON (Minister of Justice) Link to this

Consistent with what I understand was the general discussion at the Business Committee, to facilitate the progress of this bill I seek leave for the Committee stage be taken as a single, wide-ranging debate and for there be one question at its conclusion.

CHRISTOPHER FINLAYSON (National) Link to this

I am happy to speak to Parts 1 and 2, although it is fair to say that in the second reading I probably have tortured the House sufficiently on how we actually got to where we are in the bill as reported back. But let me make a couple of comments, because to the observer it might seem strange that section 27 of the Evidence Act is amended by inserting new section 12A in quite a different part of the Act. Why we are putting it in the general, or preliminary, provisions is to make it quite clear upfront that in this category of case, nothing will affect the rules of the common law relating to either the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises, or, in that second category, the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.

I have already explained in the select committee how section 12A, as introduced in clause 5, will differ from the new section 12A as it will be enacted. It was simply that rather than tack a subordinate clause on to the end of the existing section 27(1), which is in the legislation, we have brought it together in one section so that the law is as clear as it can be.

Mr Tanczos made the extremely good point in the second reading that the law, even as enacted in this form, is not clear beyond all reasonable doubt, or beyond any doubt whatsoever—one can apply one’s own test—because there is a reference to the common law, and the common law by its very nature is always changing and evolving. It could well be that this area of the common law will change again in the near future because, as he said, a couple of cases before the superior courts of this land at the present time touch on these issues.

I will address the points made by Mr Mark in his second reading speech when I deal with those issues in the third reading. It would be good if by the time of any review, the Law Commission and Parliament try to codify what exactly are the principles of the common law that we are dealing with here. As Mr Chauvel said, there are three exceptions at the moment, but it would be good to bring them into the Act because section 6, which is a very important section of the Act, talks about one of the purposes of the legislation being: “(f) enhancing access to the law of evidence.”

As a result of the changes we have made to clause 5 and to the new section 12A, there have to be a couple of minor amendments to clause 6. Rather than have the clause that I have referred to tacked on to the end of section 27, we have put it in the new section 12A, and then linked section 27 to the new section 12A by adding a new subsection (4) to section 27 that makes it clear and avoids doubt that this section, dealing with defendants’ statements offered by the prosecution, is subject to section 12A.

Part 2 deals with consequential amendments. As can be seen from section 27, certain evidence is not admissible if it is excluded under the provisions of sections 28, 29, or 30. As a result of the changes we have made, it follows logically that sections 28, 29, and 30 need minor amendments by inserting, after the words “the defendant”, the phrase “or, if applicable, a co-defendant”. So those consequential amendments are necessary to give some structure to sections 28, 29, and 30 in the light of the amendments made to section 27 and to the new section 12A.

I hope that clarifies the position. The National chief whip is indicating to me that I have been as clear as mud, but there we are. It is a technical matter, but at the end of the day it is an important matter for the reasons the Minister has outlined. That is why having the Committee stage follow on immediately from the second reading is so necessary.

NANDOR TANCZOS (Green) Link to this

I thank Mr Finlayson for that contribution. I think it was helpful for members of the public to hear some of the reasoning that went on behind some of the amendments made by the Justice and Electoral Committee. I would like to expand a little around the new section 12A, in clause 5, because I think people may find it useful.

As has been stated, in the original amendment bill as introduced, clause 6 read that section 27(1)—about rules against the inclusion of the evidence of co-defendants against a defendant—was amended so that that evidence was inadmissible “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”. In my first reading speech I referred to concerns around that. The issue was illustrated by a hypothetical example that Mr Fairbrother raised in the select committee. In fact, he was the author of the example I mentioned in the first reading, which was a situation where there are two co-defendants, neither of whom is giving evidence. A statement made by defendant A asserts a number of things. That evidence is not admissible against defendant B, and defendant B is not taking the stand. In the course of cross-examining another witness, defendant B’s lawyer makes reference to some of the assertions made by defendant A. For example, defendant A has said: “We were in a blue car.”, so defendant B’s lawyer asks: “Is it true that there was a blue car?”, and asserts some of the secondary facts contained in that evidence.

The question that Mr Fairbrother had was whether the use of those assertions would imply an acceptance by defendant B of the truth of the statement made by defendant A. I think it was a fair question, because part of the concern was that by clause 6 being framed in the way it was, it was actually unclear what was meant by “is taken to have accepted the truth of the statement”. Clarifying that was important, as was nevertheless retaining the common law around it. As was stated, there already were quite clear common law rules about where this evidence would be admissible.

That is why the select committee came to this formulation. Mr Fairbrother was instrumental in our achieving it. The advisers and the Parliamentary Counsel Office were also crucial in getting the right phrasing. Now, instead of that rule being in a separate clause, it is included in the new section 12A. Rather than that rule being stated in that way, new section 12A, “Rules of common law relating to statements of co-conspirators, persons involved in joint criminal enterprises, and certain co-defendants preserved”, now states: “Nothing in this Act affects the rules of the common law relating to—(a) the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises;”—which is the issue I addressed in my second reading speech, but also—“or (b) the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.” The crucial thing is that the common law position that already exists is retained, rather than a new formulation being created that creates uncertainty.

So I think that was a helpful thing. It shows that even though we had only 1 day of consideration of this bill—it was a very speedy process—that 1 day was important and significant in our addressing this problem and tidying it up to a degree where that certainty has now been preserved.