Evidence Amendment Bill

Hon MARK BURTON (Minister of Justice) Link to this

I move, That the Evidence Amendment Bill be now read a second time. This bill was introduced on 18 June 2007 and referred to the Justice and Electoral Committee for consideration. That committee reported the bill back to the House on Friday, 22 June 2007. I start by thanking the committee for its work in consideration of the bill within what was an agreed tight time frame.

This bill deals with an amendment to the Evidence Act 2006, which was passed last year but is not yet in force. The Evidence Act retains the common law rule—

CHRISTOPHER FINLAYSON (National) Link to this

I thank the Minister of Justice for those generous and kind comments.

The National Party will support the second reading of this bill, because it is necessary to make it clear, beyond any doubt whatsoever, that the common law exceptions that he referred to are retained in the law, following the enactment of the Evidence Act last year. In dealing with this second reading speech I want to go through the legislative history, because there is at least a question that perhaps the legislation is not necessary, and I want to deal with that matter.

The Evidence Bill was introduced, I think, in 2005, and referred to the Justice and Electoral Committee. A specialist subcommittee of the select committee was formed, chaired by Mr Fairbrother, a Labour list MP, and on that specialist subcommittee were Dr Richard Worth and myself from the National Party, and Nandor Tanczos from the Green Party. We were ably assisted by the officials from the Minister’s department and also by Robert Fisher QC, a former judge of the High Court of New Zealand. I also think it is fair to say that a great deal of work was done on the bill, as can be seen from the report of the Justice and Electoral Committee when the bill was referred back to the House. I think it is fair to say that the second reading and Committee stage were dealt with very quickly indeed.

When the bill was introduced, and when it went to the select committee, the relevant clause, which is now the subject of consideration in this amendment bill, was clause 23. As originally introduced, this clause provided that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible, unless the statement is excluded under certain clauses, which are not relevant for the purposes of consideration this afternoon.

During the course of the select committee deliberations, concerns were raised about the form of that particular clause as drafted, and that message was picked up in the report back to the House. The committee recommended “that clause 23 be amended so that a defendant’s statement would be inadmissible against a co-defendant in joint criminal trials. A statement made by a defendant would be admissible only against that defendant.” But it is very important that I quote the following sentence: “This would maintain the current law relating to statements by co-defendants.” There is at least a very good argument that that would have picked up the common law. So the clause was amended to reflect that intent, but there was certainly no intention on the part of the subcommittee to alter the existing law and those common law exceptions.

Indeed, there is an argument based on sections 10 and 12 of the Evidence Act that if this matter had ever gone to litigation, then the courts would have said that the common law exceptions were still relevant, even if the words were not explicitly referred to in the section. I say that, because section 10, which is a very important section, deals with the interpretation of the Evidence Act, and it provides, among other things, that the Act “may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—(i) its provisions; and (ii) the promotion of its purpose and its principles; and (iii) the application of the rule in section 12.” Section 12 deals with evidential matters not provided for, and, again, provides that the common law can be brought in “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 taken,”. In those circumstances regard can be had to the common law.

So based on the statement in the report back to this House on the Evidence Bill, and based also on sections 10 and 12 of the Evidence Act, there is a very respectable argument that this legislation that we are dealing with today is not, in fact, necessary. The point is, however, that after the enactment of the Evidence Act 2006 concerns were raised that the common law exceptions had not been captured in the codification. The Minister very fairly outlined the concerns that a large number of hugely expensive, complicated, time-consuming trials could be aborted because someone might run the argument that the common law exceptions had not been captured, and so the law had fundamentally changed. Hence the need for this amendment legislation, and the select committee has dealt with it as quickly as possible in order that it be clear beyond any doubt whatsoever that the common law has been preserved.

Now, then, let us look at the Evidence Amendment Bill as introduced and how it has emerged from the select committee. The Minister quite rightly says some changes have been made by the select committee. It is important, first, to refer to clause 5, which inserts section 12A. As originally introduced, that section baldly stated: “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.”

Clause 6 deals with an amendment to section 27. It originally provided that section 27 was to be amended by adding “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”. Not only has the select committee amended the new section 12A so that we bring into the body of that section the rules of common law relating to admissibility of statements of co-conspirators or persons involved in joint criminal enterprises, but also we have picked up those concluding words that clause 6 was to add to section 27(1), and made them paragraph (b) of new section 12A. That, of course, refers to “the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.”

Then, through clause 6, we have amended section 27 by adding subsection (4), which states: “To avoid doubt, this section is subject to section 12A.” Some members may think it is rather odd when dealing with an amendment to section 27 of the Act, which is in Subpart (3)—in Part 2— which deals with defendants’ statements, to have a new section 12A, which will be in Part 1, dealing with general provisions. But what we wanted to do was make it upfront in the general principles section that the common law exceptions have not gone west, as it were, by a side wind, but they are still very much part of the law.

Even if some of us think there was no doubt as to whether the common law was still retained, I agree with the Minister that because this is such an important issue, because of the cost and the complexity of these multi-defendant trials in the circumstances he has described, it is better, beyond doubt, to dot the i’s and cross the t’s and make it quite clear that the common law exceptions are retained.

Reference to the common law is not the best way of legislating, particularly when there has been such a fundamental root and branch reform of the law, but in the circumstances and in the time available, what we have done by way of amendment to the new section 12A was considered to be the best way of dealing with this. In my third reading speech I will perhaps point out some routes for the future, particularly when it comes to the first 5-yearly review of the Act.

CHARLES CHAUVEL (Labour) Link to this

I rise to take a brief call in the second reading debate of the Evidence Amendment Bill. I do not intend to speak for a long period of time. Much of what ought to be said relating to this technical tidying-up amendment has been said by the two previous speakers.

As has been noted, the bill will correct an accidental, arguable omission from the Evidence Bill passed in November last year. Clearly there would potentially have been serious implications for a number of criminal trials involving multiple defendants if tidying-up legislation were not passed by Parliament in a timely fashion.

As has been noted, under the common law and under section 27 of the Evidence Act 2006 a defendant’s statement is admissible against the defendant but not admissible against a co-defendant in the same proceeding. There are three exceptions under the common law to the rule. These clearly ought to have been inserted into the Evidence Bill during the select committee process, but that omission was not picked up. I must say that this is a rare omission on the part of a committee that otherwise works hard and thoroughly and normally addresses matters wholly and thoroughly. Those common law exceptions are where the co-defendant accepts the truth of the statement; things said and done in furtherance of a common design in a case where conspiracy is alleged; and things said and done in furtherance of a common design where the accused are alleged to have engaged in a joint criminal enterprise. The bill, as has been noted, will put these three exceptions into the Evidence Act 2006, putting it beyond doubt that it will reflect the common law. Obviously, there will also need to be an amendment to section 5 of the Evidence Act, to replace the word “Act” with “section”, to reflect the fact that there is a split commencement date in the principal Act.

I conclude by recording my appreciation for the multipartisan way in which this legislative tidying-up measure was able to be progressed and expedited, and I commend the Evidence Amendment Bill to the House.

NANDOR TANCZOS (Green) Link to this

The Evidence Amendment Bill has the support of the Green Party, notwithstanding the rather unusual procedure of the bill’s passage, in terms of both the speed with which it was introduced to the House and then dealt with by the Justice and Electoral Committee—it was unfortunately hasty—and the procedure today where we will be dealing with all of its remaining stages at this sitting. I have to say that the Green Party is normally very reluctant to support procedures of this kind, because it is very easy for the House to make inadvertent mistakes through the hasty making of legislation. There are important constitutional reasons why we have normal procedures—in particular, to ensure there is adequate opportunity for members of the public, for professionals involved, for other people involved, and for experts to come and make comment on the legislation we are seeking to enact. It is unfortunate that that has not been the situation here.

Nevertheless, we have accepted the Government’s argument that there is urgency around this matter—that the amendments made by the select committee to what is now the Evidence Act left some confusion around a matter and left some concerns—and that it needs to be rectified promptly in order that cases currently before the courts are not adversely affected. So the Greens are supporting this unusual procedure and we are supporting the bill.

The first question we had to determine in coming to our position was the question of whether the bill was necessary at all, and I make reference to the comments of Mr Chris Finlayson around this matter. It was something the select committee discussed, and it is an important point because the question was whether the amendments made by the select committee actually did away with the common law or preserved it. That is the concern, and the reason why it is important to pass the legislation is to make absolutely clear that the common law is retained.

There is a reasonable argument to be made that the common law provisions should still remain. As I say, Mr Finlayson has canvassed those arguments, but I think it is worth referring to some of those specifics. Let us take a look at the Evidence Act—and excuse me while I just find my way through this—

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Assistant Speaker. Ka nui te mihi ki a tātou katoa mō tēnei wā. No area is probably under more negative public scrutiny at the current time than the criminal justice system. This in itself is probably a good thing. Too often the system comprising our courts, our jails, and our judiciary is shrouded in mystery. Incarceration and sentencing decisions are vigorously debated around kitchen tables, but they are not, it would seem, open to nationwide discussion.

So it was a matter of some interest when Norm Withers of Christchurch instigated a petition in 1997 after an unwarranted, brutal attack on his 72-year-old mother. This petition eventually led to the 1999 law and order referendum, so it was obvious that there was intense public interest in the laws of criminal justice. This interest in the law is not just about the outcomes of the law in operation; it extends also to the system’s inner workings—the ambiguities, the complexities, and the rules around evidence.

So today we come to the Evidence Amendment Bill, which is another example where the law itself is proven to be faulty. In essence, it is about an error made at the select committee that meant the co-conspirators rule was unintentionally deleted. We hear that the three common law exceptions to the rules about ensuring that a defendant’s statement can be heard against a defendant but not a co-defendant in the same proceedings have been missed out of the Evidence Act 2006. The passage of law that this House went through last year in supporting the Evidence Act 2006 was such that we were all, really, partners in crime to the central problem that today’s bill addresses. It is this sort of blind faith that Parliament entered into that I believe is useful to examine a little bit further.

The legal system should not be beyond the scrutiny of the law. The fact that the Justice and Electoral Committee intended to maintain the co-conspirators rule but did not do so should be subjected to scrutiny, as well as be addressed as we are doing today. In the interests of a healthy democracy, we must ensure that open access to criticism is a part of the normal way of running business.

In the case of this urgent amendment to the Evidence Act 2006, the consequences would have been particularly important in cases where evidence is obtained whereby one defendant makes a statement that under the current law is able to be used against another defendant. My co-leader Dr Sharples talked extensively the other day about the implications of such a ruling in the case of serious drug-dealing trials, which often involve organised criminal groups. He talked about his own experience with the Patua te Ngāngara, or Beat the Demon, drug education programme, and how the mistake in law, unintentional or not, would have counted heavily in multi-defendant trials such as class A drug trials. So it makes us think that if one error can happen, such as the one we are dealing with today, then what about the other miscarriages of justice that may not as yet have been identified?

It reminds me of the old saying that justice delayed is justice denied. What about those people who may have spent years fighting for damages, and who are struggling with dwindling finances, with the toll of the case weighing heavily on their relationships or on their general state of health? It will be well known in this House that even lawyers have expressed a lack of faith or confidence that justice will be done through the legal system. For a particularly comprehensive understanding of this issue I refer the House to a 1999 publication by the Law Commission entitled Te Tikanga o te Ture: Te Mātauranga o ngā Wāhine Māori e pa ana ki tēnei. This report on Māori women’s access to justice—he putanga mō ngā wāhine ki te tika—sums up the issue of how well our justice system functions: “Maori women identified the dominance of colonial values and lack of Maori personnel in the legal system as the major barriers to justice. Looked at from another angle, the lack of knowledge of Maori values and culture and the lack of Maori personnel heightened their perception of injustice”. So, of course, the notion that there is injustice in the system of justice is not new, but it is always useful to consider when another opportunity presents itself, as it does in this case around abolishing the common law rule relating to co-conspirators.

How does the law work in practice? How well does the adversarial system serve the cause of justice? How can we ensure that the systems of decency, integrity, honesty, and accountability apply as much to lawyers and judges as they do to expert witnesses or clients? We have been interested, in the context of such questions, to learn about the establishment of a legal issues centre at the University of Otago, which has been set up to provide such a bird’s-eye view. The dean of the University of Otago’s faculty of law, Professor Mark Henaghan, described it as follows: “Everything about the system hinders accessibility. Even the cost of lodging an application stops many people from pursuing a claim, even where the evidence is overwhelmingly in their favour”. So the professor has raised concerns about the monitoring and enforcement of codes of ethics such as those stipulated by the Law Society. He has also raised the concept of alternative models of resolving disputes—an area that the Māori Party is keenly interested in.

The pursuit of justice, te whāinga i te tika, has always been important in the Māori world view. In Māori terms, justice recognises that kaupapa and tikanga are the first law of this land. The Māori Party acknowledges that justice is best achieved not by merely changing the content of existing laws but also by reconsidering—in good faith—the processes through which laws are made and the principles that underpin them. So we believe that if manaakitanga is to be effectively acknowledged, the mana of all peoples might be properly and respectfully acknowledged.

It is essential that the ideal of a fair and just community be established, both in the structural functioning of society and in the operations of the justice system. The Māori Party is pleased to support the Evidence Amendment Bill, not only in terms of rectifying the initial error but also to remind the House of the importance of ensuring that there are appropriate and responsive social conditions and legal processes to properly acknowledge the fundamental importance of a functioning democracy. Kia ora tātou.

SIMON POWER (National—Rangitikei) Link to this

I just take this opportunity briefly—and I emphasise the word “briefly”—to thank Chris Finlayson for putting in the time and effort on behalf of National during the select committee process for the Evidence Amendment Bill. He was very helpful to us when the Minister of Justice first wrote to National, as a party, on 14 June seeking its cooperation in expediting this legislation through the House, and National members are grateful for the expertise he brings to issues like this.

I also echo the comments made by the Green member Nandor Tanczos. Historically, National has not been comfortable with legislation moving this speedily through the House. In fact, arrangements as initially suggested were further discussed, to result in the passage of the legislation that we are seeing today. Proper scrutiny of legislation is important to members on this side of the House. Although we can debate at length whether the Evidence Bill, as it first emerged from the select committee, needs the work done that the amendment bill proposes, in terms of whether the common law would cover off the exceptions and the like in respect to admissibility of co-defendants’ evidence, the point has been made by both Charles Chauvel and Chris Finlayson—and Nandor Tanczos, to be fair—that, at the very least, Parliament has an obligation to clarify the law beyond doubt. I do not believe that the issue of whether an initial error was made is of significance at this point, other than to say that we now know that the legislation will contain a degree of certainty that we hope will not see this particular legislation returned to the House for some time.

It is the intention of the House to move to the Committee stage shortly and then to the third reading of this bill—all this afternoon. I just remind members that moving legislation through that process in the way that we are doing this afternoon is not at all—except in very exceptional circumstances—a satisfactory way to see legislation moved through Parliament. Certainly, those who have responsibility for areas like justice or those who have shadow Attorney-General roles or the like will agree—as, I am sure, the Minister of Justice himself would—that such processes are not ideal.

I believe that in order for this legislation to be as good a law as it possibly can be and to avoid court proceedings discussing whether the common law covers off some of the issues raised by this amendment bill, getting the certainty around this legislation before its implementation is a helpful thing to do. National members will be constructive during the remaining stages of this bill’s passage through both the Committee of the whole House and its third reading. On this occasion I think I can say that the House has decided to put aside traditional matters of partisanship on issues in the justice—including criminal justice—area and will try to see this legislation move as speedily as possible.

RON MARK (NZ First) Link to this

I too shall take a very brief call, on behalf of New Zealand First, to indicate that we will support this amendment to the Evidence Act. I make a couple of notes. Firstly, New Zealand First does not have a member on the Justice and Electoral Committee, which considered this bill. We therefore will be holding to the opinions of the members of the committee, and to the research and work done by them. We thank those people for their reports. We get a little bit concerned when legislation is pushed through swiftly—there is an old saying, “Less haste, less waste”—and we have a habit of finding ourselves back in this House redressing legislation where errors have occurred because bills have been moved through hastily. But the select committee members seem happy that they have done the necessary work.

I do note that the conclusion of the commentary states: “Despite making these recommendations … This amendment should not be seen as resiling from the purpose of the Act. Section 202 of the Act sets out a very clear mechanism for mandatory review of this codification. The first review is to commence on 1 December 2011 …”. That is a little confusing, because it then states: “or at a later date set by the Minister of Justice.” I guess we would like a bit of clarification. Will it be on 1 December 2011 or not? Again, even in passing the bill through this stage, there appears to be a little bit of uncertainty as to whether it will completely do the job, whether it will need to be reviewed again, and whether that review will be done in 2011, as stipulated, or some time thereafter. It does seem to inject a higher degree of uncertainty, again, into what was essentially legislation that many questioned the need for in the first place.

That does leave New Zealand First with the very curious question: “What’s it all about, Alfie?”. I guess we will simply trust in the select committee. Our overriding concern is that for people involved in criminal activities—particularly organised crime and high-level crime—the law as it currently stands would not make it possible for co-defendants or co-conspirators to be prosecuted successfully. That, in this day and age, where methamphetamine is reportedly becoming an $800 million industry to the gangs and organised crime, is of grave concern to us.

It is interesting to hear some of the concerns about the justice system as a whole in the light of press statements and press releases today by various MPs about organised crime. I again put it on the record that New Zealand First has no truck with organised crime. Legislation that can be put through this House that makes it easier to prosecute, and gives the police the tools they need to put out of business gangs who meddle and peddle in mind-altering drugs that are fed to the children in our communities, will always have New Zealand First’s support. In fact, we look forward to the day when this House supports our anti-gang legislation.

We do not buy into some of the rhetoric we have been reading today. To those who would advocate that “Hug a Gang Day” is here, we would simply say: “Been there, done that, and it didn’t work.” Robbie Muldoon tried it, and a range of other people have tried it. We have talked until we are blue in the face, and the only thing we see is that gangs are bigger and stronger than they have ever been, and that they are attracting young people into their midst in numbers that are of grave concern.

This legislation, hopefully, will put a stopgap in the small hole that makes it difficult for the police to prosecute people and successfully gain convictions against conspirators and co-conspirators. That has to be a good thing. We will support the bill through the second reading and through the Committee stage. But we will be listening, I have to say to gentlemen like Chris Finlayson, for further views and analysis, to see whether it indeed is the case that a subsequent review of this second amendment proves that there needs to be a third amendment to a piece of legislation that was widely considered as being not necessary in the first place. We will see.