Hon MARK BURTON (Minister of Justice) Link to this
I move, That the Evidence Amendment Bill be now read a third time. This bill deals with an amendment to the Evidence Act 2006, which, as we have heard rather repeatedly this afternoon as the House has facilitated the progress of this Evidence Amendment Bill, was passed last year but is not yet in force.
The Evidence Act retains the common law rule that a defendant’s statement is admissible against him or her, but it is not admissible against a co-defendant in that proceeding. However, the Act does not include the exceptions to the rule. This bill, therefore, captures those exceptions so that they are included in the Act. These exceptions, as we have discussed, are included in the new section 12A, which is inserted by clause 5 of the bill. This section provides that nothing in this Act affects certain common law rules.
The first of these is known as the co-conspirators rule. Section 12A preserves the rules of the common law relating to the admissibility of statements made by co-conspirators or by persons involved in joint criminal enterprises. At common law, if certain prerequisites are met, then the acts or words of a defendant are admissible against co-conspirators or others involved in a joint criminal enterprise, where the acts or words are done in furtherance of a common design. The prerequisites are that there is independent evidence of the existence of a conspiracy or a joint criminal enterprise, and that the defendant’s participation in the conspiracy or joint criminal enterprise is established. The other common law rule section 12A preserves is that relating to the admissibility of a defendant’s statement made against a co-defendant in circumstances where the defendant’s statement is accepted by that co-defendant.
These amendments are required in order to retain the current law once the Evidence Act comes into force; they do not change the current law. Not retaining the current law would have serious implications, as I indicated during the second reading. It would have serious implications for criminal trials that involved multiple accused and evidence obtained particularly by the interception of communications. As I have indicated, and as I think members fully appreciate, these cases generally involve the likes of major drug dealing, organised criminal enterprise, and/or serious violent offending.
Clearly, these types of trials with multiple defendants are costly, they are lengthy, they follow resource-intensive investigations, and they often have a high community profile. They are not the sorts of cases that any member would want to see put at risk. Therefore, members have generally cooperated to ensure the rapid progress of the legislation through this House.
I am sorry; members have cooperated completely. The member is absolutely correct. If these amendments are not made, then those people accused of serious crimes could indeed, in a worst-case scenario, be discharged or the charges would have to be dropped. That is not a situation that members would want to see happen.
I close by acknowledging again the cooperation we have had from members of the House and the diligent work of members of the Justice and Electoral Committee. I thank them for it. It is refreshing and, I have to say, enjoyable to have participated in a cooperative and collaborative process in order to see the House achieve a small but important piece of work that we all agree is necessary.
CHRISTOPHER FINLAYSON (National) Link to this
It is a somewhat surreal experience to go through a second reading stage, Committee stage, and third reading stage as quickly as we have done this afternoon. There seems to be little point in going back and making reference to my second reading speech when it was given only about an hour ago. So I will not do that, and I will not upset the chief whip by going through yet another turgid analysis of the newsection 12A, to be inserted in the Evidence Act 2006 by clause 5 of the Evidence Amendment Bill, or addressing why we come to have the amendment to section 27 in clause 6 of the bill and the consequential amendments in Part 2.
The situation could be summarised in this way. After the new Act came into force there was some doubt about whether, in relation to the circumstances outlined in section 27, the common law had been preserved. As both Mr Tanczos and I explained in our second reading speeches, there is an argument that it has been; however, to put the matter beyond doubt, legislation was considered to be the desirable option. That is why we moved very quickly to have the Evidence Amendment Bill introduced and referred to the Justice and Electoral Committee, and then, this afternoon, we have dealt with its remaining stages.
One point I want to close on, though, is the conclusion to the report of the Justice and Electoral Committee. The committee emphasised that the Evidence Act should be regarded as a codification of the law of evidence in New Zealand, that the amendment should not be seen as resiling from the purpose of the Act and, moreover, that section 202 of the Act sets out a very clear mechanism for mandatory review. Mr Mark raised a number of very good questions. If I can summarise the honourable member, he said that we have a section that deals with periodic review, and that there are some arguments as to why the legislation should have been introduced in the first place, so he asked whether we would have other amendments. I think that fairly summarises the points he made.
In dealing with the second of those points first—why we have legislation dealing with the law of evidence—I say we had a major exercise throughout 2005 and 2006 because evidence law, as it was, was unsatisfactory. It was contained in legislation like the Evidence Act 1908 and the Evidence Amendment Act (No 2) 1980, which had introduced some major changes, some of which never actually came into force because the Governor-General in Council did not sign the necessary documents. We also had an array of common law, judge-made law, on evidence.
The Law Commission wanted to bring it all together, and that is what has been done through the Evidence Act 2006. That is why Mr Tanczos and I, for example, expressed concerns about references in legislation to the common law bringing back, as I said in the Committee stage, somewhat uncertain references to the law, because the common law is never static but is always developing. But as far as possible, and consistent with the purpose of the legislation, every endeavour was made to bring all relevant rules relating to the law of evidence into one statute. A primary purpose of that was, as set out in section 6(f) of the Act, to enhance access to the law of evidence. The law of evidence is one of those things that affects anyone who is caught up in the civil or criminal justice system. Sometimes people represent themselves—they may not have access to lawyers—so it is to the advantage of everyone that the law of evidence is clear and accessible. I hope that answers the first question.
The next question relates to periodic review. Section 202, which was inserted by the committee, is a very important section. It is considered, given the importance of thend there will be a period, while the Evidence Act is in its infancy, when there will be a lot of cases on it—that after a certain period there needs to be systematic review of the Act. This is a mechanism that has been inserted to provide for mandatory post-legislative review of the Act. At a particular time, hopefully no later than 1 December 2011, the Minister of Justice will ask the Law Commission to take a fresh look at the Act as it has developed since it came into force, taking into account all relevant cases, and then to decide what changes, if any, need to be made.
It is the sincere hope of the select committee and of this Parliament that that mechanism will work so that there can be a principled and systematic review of the law of evidence. I certainly hope that is the case. I know that when the Law Commission was looking at the law of evidence, I was one of those who suggested that rather than our running back to Parliament every time an amendment needed to be made, perhaps the law of evidence could be enacted as a code, and a specialist committee could make changes to it. But, because of the nature of the law of evidence, which deals with major, substantive matters that can affect the liberty of the individual, it was considered that it was a subject that was properly the preserve of Parliament and not of a specialist committee, and that is why it was not enacted as a code.
The final point I would make is that I predict this amendment is probably not a one-off experience. Given the huge nature of the exercise of reforming the law of evidence comprehensively for the first time in a century, and given the changes that have been made, it could well be, while the legislation is in its infancy, that some other questions will arise. We may have to deal with other questions, because when we try to reduce everything into a code and express ourselves clearly in Englishsh, covering as many situations as we can, there may well be other circumstances that require clarification. I am afraid that is the name of the game. When I was speaking in the first reading, I said that after the High Court Rules were introduced in 1985, the Rules Committee needed immediately to have a number of meetings to make some urgent changes to them, because certain things had not been looked at. I am afraid that will possibly happen here, simply because of the nature of the exercise that we have undertaken.
We cannot cover every single contingency, but I think it is fair to say, in answer to Mr Mark’s questions, that we have certainly tried to do so. I hope I do not sound defeatist, but it could well be that there will be a need to legislate in other areas. Given the mechanism for review that we have in section 202 of the Act, where a review is not to take place until 5 years hence, there may be a need for this Parliament to look at other matters. But having said that, I certainly hope that is not the case. We have done our best in the time available to cover the contingencies that the Minister has outlined, so as to prevent either satellite litigation on whether the common law exceptions have been maintained or our running the risk that a court finds they have not been maintained, thereby then imperilling a large number of highly complex and very costly cases. At least this legislation makes it clear, beyond a shadow of a doubt, that the common law exceptions in this particular area have been maintained.
For that reason, National supports the third reading of the legislation. As I say, I hope we are not going to deal with other amendment bills in this area of the law. But who knows? We may do so.
NANDOR TANCZOS (Green) Link to this
Allow me to begin with an apology. I doubt that I will be able to give a full 10-minute speech in the third reading debate without repeating myself on issues that have already been canvassed in previous stages of this debate. I know that members would not like to hear repetition, so I will try to confine my remarks to fresh issues.
I think it is important that we take this debate seriously and do make as constructive a contribution as possible, because it is an important issue. The rules of evidence are enormously significant for the maintenance of justice, of good rules of law, of fair courts and fair process, of the safety of the community, and of the right to a fair trial. These are important issues, particularly because of the nature of this debate and the very constrained nature of the process—the hasty procedure. Although I accept the need for that, we have to accept that this is an unfortunately speedy process. So in that regard I think it is incumbent on members to make as constructive and full a contribution as we are able, and I will do my best to fulfil the expectations of the House—and of you, Mr Assistant Speaker.
Ha, ha!
Let me begin with a comment on a broader principle. As someone who is very interested in the deficiencies of an adversarial court system, and in exploring alternative processes for dealing with legal issues, and particularly in exploring further ideas around the applicability of the inquisitorial system to our own—and acknowledging that elements of the inquisitorial system already apply in some legal processes in this country—I am nevertheless someone who has a high regard for the elegance, if you like, of the common law system. It is unique, I think, to the adversarial system—this idea that there is this judge-made law, with flexibility, that evolves over time.
We have developed, throughout the common law system, a rich intellectual tradition around questions of law, and I think that is a good thing. Also within New Zealand there is the question of how much uniquely New Zealand common law we have developed. I know that that is a matter that has exercised better minds than my own, and some very interesting contributions to that discussion have been published in recent times. I think it is important that we have a system that allows judges to consider not just statute law but broader principles of law, constitutional considerations, and the development of judicial thinking.
I know that this Parliament has debated the question of the relationship between judges and Parliament at times, and different members have different views. I know that Dr Cullen has made particularly strong statements around the sovereignty of Parliament. He has stated his position quite clearly—a position shared by some members of this House and not by others. I have to say that I am someone who tends to see myself on the other side of that debate. The question has been raised, of course, about what the mandate is for judges to make judge-made law. Judges do not have the democratic mandate that members of Parliament enjoy. Nevertheless, I think that judges enjoy a different kind of mandate, which is to do with the rule of law. It is to do with the protection of rights and with broader historical constitutional issues, which can quite easily be neglected in the debates of this Parliament, given that we represent moments of history, moments of the collective political consciousness of our nation at a particular time. So I do not think that that takes away from the important considerations that a broader historical view might give.
I remember well the debates between the Attorney-General and the Chief Justice. Nevertheless, of course, the problem with the common law is that it is relatively inaccessible, particularly to ordinary people. In fact, the very beauty of its fluidity and ability to evolve is one of the things that makes it so difficult for people to penetrate it and to understand its full scope. Although in the select committee and in this House we like to indulge ourselves and loyally debate some of these things, in my case I am able to do that only because of the support of advisers, researchers, and the like.
Unlike other members of this House who are accomplished lawyers in their own right and are well-known and highly regarded in the legal world, many of us here rely entirely on the enormously hard work of various support people in order to do our jobs. Of course, those resources are not available to most people. That is why it is important that we have in the Evidence Act the purpose of trying to make the law as accessible as possible so that ordinary people can understand the laws of evidence, understand that the laws comply with logical rules, and understand how those rules work. Then they can start to understand better how judicial decisions are made, because one of the problems we have in this country is that some people have a low regard for our judiciary. I do not think that that is deserved, by and large, but one of the difficulties is that people do not always understand the lines of reasoning that bring judges to make the decisions they make. So if we can make explicit the laws of evidence, and bring them into one place and make them clear, that is a very useful and important thing to do.
The reason those issues are important in terms of this debate we are undergoing right now is that this bill appears to run contrary to that purpose, and this is an issue that has been brought up previously. But I think it is important to stress that it is not the intention of Parliament to create further confusion, or anything like that, but, rather, to show that we are rectifying an important area of confusion in the law. If we have to do that in the context of the time by referring to the common law, then we have to do that, but we do want to see that it is tidied up at a later stage.
Mr Finlayson is absolutely right when he says that this is unlikely to be the only time when we have to do this kind of thing. We did undergo a massive exercise with the enactment of the Evidence Act. It is a huge Act, complex and technical, so it is inevitable that in the course of time we will potentially see some oversights, or places where there is a lack of clarity about the intentions of Parliament. Again, as has been said, case law will be developing around the rules as they are set out in that Act. So in that regard it is important that we have a review process incorporated into the Act. As has been said, the first review is to commence on 1 December 2011, or at a later date set by the Minister of Justice.
I think it would be unfortunate if that review was unnecessarily delayed. The Green Party certainly would encourage that review to be timely, because, I think, by 2011 it is very likely that we will have seen a number of the issues that will come from this. They will have come to our attention by that time, and we will need to go through that review process to look at where the case law has got to and to see what amendments or rectifications might need to be made at that time. So of course it is true that this will not be the only time we do this. We need to ensure that we do have this process to follow up and to tidy up the loose strands. That is the important element of that. Nevertheless, I think it is great to see the consensus and cooperation across the House on this important piece of legislation. I commend the Ministers and advisers for their good work, and I commend members for their very constructive contributions to this hasty debate.
SIMON POWER (National—Rangitikei) Link to this
First of all I say that as Chris Finlayson indicated, National supports this bill through its third reading. I also have to say that the Green Party having indicated to the House it would not take its full 10 minutes in the third reading debate, that was an impressive effort by Nandor Tanczos to get as close to the 10-minute mark as possible.
I reiterate two important points that have been made during the course of the debate. The first is that National definitely sees this amendment bill as a clarification and as adding some certainty to the way in which this particular rule could be interpreted, whether it be enshrined in statute or with the continuation of a common law position. The important point that has been made is that even if the common law retained the defence, Parliament has an obligation to produce certainty in law, and we certainly would not want to have a situation where this was tested at length in the courts. I thank members who have done the work on this amendment bill, particularly as it was during such a rushed period in the select committee.
Secondly, I want to emphasise that National was happy to play a constructive role in seeing this legislation move through all stages of the House. It is not something that we would ordinarily agree to, particularly because of the nature of the scrutiny that our democracy allows those parties not on the Treasury benches to pore over legislation that is put before the House. I think on the whole that robust process works pretty well.
I know that the Attorney-General is anxious for me to conclude my remarks, so I will just say that although the way this bill is passing is extraordinary, with the introduction of the Evidence Act at the start of August it is essential. National supports the third reading of this bill.