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Evidence Amendment Bill (Consistent) (Sections 5, 7, 14, 23, 25, 27) [2015] NZBORARp 11 (2 April 2015)

Last Updated: 17 January 2019

Evidence Amendment Bill

2 April 2015

Attorney-General

Evidence Amendment Bill

Our Ref: ATT395/222

1. We have reviewed the Evidence Amendment Bill (Bill). We advise it appears to be consistent with the rights and freedoms in the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).

2. The Ministry of Justice considers the Bill is largely in its final form but consultations with other government departments continue. We will advise you of any significant changes that affect this advice.

General comments

3. In February 2012, the Hon Judith Collins exercised her power under s 202 of the Evidence

Act 2006 (Act) to direct the Law Commission to conduct a review of the operation of the

Act. The Law Commission published its findings in March 2013. [1] Its report recommended changes in two categories: general “tune ups” to improve the performance of the Act and one major change: abolition of the previous consistent statement rule in s 35.

4. This Bill is the Government’s response to the Commission’s recommendations. With the exception of the previous consistent statement rule, the Bill implements the recommendations. In relation to the previous consistent statements rule, the Bill implements an alternative proposal put forward by the Commission. [2] The Bill also makes changes to rules governing access to video records of evidence.

5. The rights and freedoms engaged by the Bill are:

5.1 In relation to civil proceedings, the right to observance of the principles of natural justice in s 27(1) of the Bill of Rights Act; and

5.2 In relation to criminal proceedings, the fair trial rights in s 25 of the Bill of Rights Act.

Most changes clearly rights-consistent

6. Most of the changes are minor and clarify or remove ambiguous language with the Act [3]

or move provisions to other parts of the Act where they fit more logically. [4] These changes do not raise any prima facie inconsistency.

7. The more substantive of these changes are:

7.1 Clause 7, which removes Police documents containing statements of eyewitnesses from the definition of “business records”, with the effect that these eyewitness statements are no longer exempt from the hearsay rules;

7.2 Clause 9, which substitutes a new s 22A codifying the common law rules governing the admissibility of co-defendants’ hearsay statements against a defendant;

7.3 Clause 11, which clarifies that, where judges are considering whether to admit a defendant’s statement as reliable under s 28 of the Act, they must put to one side whether they consider the statement to be true but may if appropriate consider the extent to which the statement is supported by extrinsic evidence;

7.4 Clause 12, which clarifies that the “need for an effective and credible system of justice” factor in the s 30(2)(b) balancing test for the admissibility of improperly obtained evidence will not always point toward admissibility;

7.5 Clause 13, which broadens the scope of the previous consistent statements rule in s 35 of the Act by effectively codifying the common law position as outlined by the Supreme Court; [5] and

7.6 Clause 15, which clarifies that the prosecution leading evidence of a defendant’s pre- trial statement in circumstances where the defendant does not give evidence will not “open the door” for the prosecution then to give evidence of the defendant’s veracity under s

38(2) of the Act.

8. A small number of provisions make more significant changes which warrant individual attention. These are considered below.

9. Notice provisions

10. Clauses 6 and 9 of the Bill will repeal s 12A of the Act preserving the common law in relation to the admissibility of statements of co-defendants against defendants, and will substitute s 22A codifying similar admissibility rules for “hearsay statement[s] against defendant[s]”.

11. Currently, parties intending to offer hearsay statements must give notice but statements of co-defendants have been exempt from this requirement due to the wording of s 12A of the Act. Clause 8 of the Bill covers that gap. Clauses 16 and 17 propose a similar notice requirement for parties intending to apply for permission to offer evidence of a complainant’s previous sexual experience under s 44 of the Act.

12. The main rationale for requiring notice is to ensure that admissibility decisions can be made before trial where possible. [6]

13. The Bill of Rights Act does not guarantee the defendant a right to take the prosecution by surprise, but any enactment requiring a defendant to disclose information about his or her defence before trial potentially engages the right not to make a statement guaranteed to defendants by s 23 (4) of the Bill of Rights Act. The Act will confer a broad discretion on

the Judge to dispense with the notice requirements. To the extent the requirement to give notice might prejudice a defendant on the facts of a particular case, the Judge would be required to exercise his or her statutory discretion consistently with the defendant’s fundamental rights, including any rights engaged under the Bill of Rights Act and therefore no inconsistency arises. [7]

Privilege for settlement negotiations

14. Clause 23 amends s 57 of the Act governing privilege for settlement negotiations or mediation. It expands the privilege that previously related only to civil proceedings to include plea discussions in criminal proceedings. It also introduces a power to order disclosure of any document or communication privileged under the section to allow for a prosecution for perjury, to clarify the terms of the agreement if they are later disputed and if “after due consideration of the importance of the privilege and of the rights of the accused in a criminal proceeding, it would be contrary to justice not to disclose the communication or part of it”.

15. As plea discussions are now formally recognised in the Criminal Procedure Act 2011 and the Prosecution Guidelines, the Law Commission considered that s 57 ought to apply expressly to plea discussions.

16. A power for a Judge to disallow the privilege in s 57 already existed in s 67 where the communication was made for a dishonest purpose or to commit an offence or when the information is necessary to enable a defendant to present an effective defence.

17. Given that a defendant can be subject to incentives or sanctions that encourage participation in plea discussions, the exceptions to the privilege may constrain the defendant’s right to refrain from self-incrimination Nonetheless, we consider that the amendment as drafted is consistent with the Bill of Rights Act. The first two exceptions are incidental to a system of effective plea discussions. The third exception is broader but the Judge will be required to consider the rights of the accused and the importance of the privilege in admitting any otherwise privileged material.

Obtaining copies of video records of evidence before trial

18. Clause 31(3) of the Bill amends s 106 of the Act to introduce new subsections which limit

lawyers’ rights to obtain copies of video records of evidence of child witnesses in any case, or adult witnesses in sexual or violent cases. Parties wishing to obtain copies of video records of evidence of child witnesses or adult witnesses in sexual or violent cases would need to apply to a Judge for permission under proposed ss (4B). The Judge would take into account the factors listed in ss (4C). This contrasts with the current position under s 106, where parties are entitled to copies of video records of evidence “unless the Judge directs otherwise”. [8] In certain circumstances, a lawyer representing the Crown need not make an application.

19. The criteria in proposed ss (4C) are not exhaustive. The “interests of justice” test in ss

(4C)(a) is broad. A Judge would be required to exercise this discretion so as to avoid

unjustifiable inconsistency with any rights in the Bill of Rights Act. The removal of a prima facie entitlement to obtain copies of video records of evidence of child witnesses or adult witnesses in sexual or violent cases is also mitigated by the fact that defendants remain entitled to view these video records under s 106(3) of the Act, and are entitled to a typed copy of the transcript “as soon as practicable” after he or she pleads not guilty under reg 28 of the Evidence Regulations 2007. There is no inconsistency with s 25 of the Bill of Rights Act

Other provisions with general discretionary safeguard

20. Several other amendments contain clauses which have the potential to be exercised to the detriment of a defendant, but which are supplemented by provisions conferring a discretion on the Judge to dispense with the rule if the interests of justice (or a similar test) require. We consider the amendments in clauses 21, [9] 28 [10] and 33 [11] fall into this category. For the reasons stated in paragraph 12 above, we consider these clauses to be rights-consistent.

New offences and new power to create offences by Order in Council

21. Clause 34 of the Bill amends s 119 of the Act to insert several new offences proscribing the possession, copying, supplying or showing of the video record of the evidence of vulnerable witnesses or sensitive evidence other than in a manner permitted by the Act. Unauthorised possession is punishable by fines of up to $2,000 (for an individual) or $10,000 (for a body corporate). Unauthorised copying, supplying or showing a video record is punishable by up to six months imprisonment (for an individual) or $10,000 (for a body corporate).

22. Clause 36 of the Bill amends s 201 of the Act to permit the Governor-General to make regulations by Order in Council prescribing offences for non-compliance with regulations relating to the use of video records of evidence and any transcripts of such evidence. Currently, regulations relating to the use of video records and transcripts are contained in the Evidence Regulations 2007. The maximum penalties for offences created by Order in Council under cl 36/s 201 are fines of up to $2,000 (for an individual) or $10,000 (for a body corporate).

23. The new offences in cl 34 raise issues of prima facie inconsistency with s 14 of the Bill of Rights Act affirming freedom of expression. However, the limit on s 14 serves a sufficiently important purpose to justify curtailment of the right [12] as it ensures that video records of evidence (which may contain sensitive, private information) are not used more widely than in the proceeding. The legislative response is also within a range of reasonable alternatives: there is little if any social utility in allowing videos to be dealt with other than for the purposes of the trial. The penalties are modest. Any limitation is demonstrably justified under s 5 of the Bill of Rights Act.

24. We do not consider the new power to create offences by Order in Council for non- compliance with regulations relating to the use of video records and transcripts, of itself, to be rights inconsistent. While it is rare for Parliament to delegate the power to create

offences, it is not unprecedented. [13] The proposed power is generally worded, and therefore would be interpreted by the courts so as only empowering the creation of offences which are consistent with the Bill of Rights Act. [14]

25. This advice has been peer reviewed by Austin Powell, Senior Crown Counsel.

Kim Laurenson

Crown Counsel

Disclaimer

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the New Zealand Evidence Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect

of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.

Footnotes

[1] Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013). [2] As discussed at pp. 88-90 of the Review.

[3] For example, cl 14 (removing the words “dishonesty” and “whether generally or in the proceeding” in s 37 governing veracity evidence) and cl 18 (substituting “suspect” for “person to be identified” and “after the offence occurred” for “after the offence was reported” in s 45 governing identification evidence).

[4] For example, cl 27 (shifting the substance of s 35(3) governing the use of documents to refresh a witness’ memory, to s 90) and cl 35 (shifting the substance of s 46A governing judicial warnings where a defendant disputes identification evidence, to s 126).

[5] Rongonui v R [2010] NZSC 92, Hart v R [2010] NZSC 91.

[6] Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at [16] per Elias CJ. [7] Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [6] [8] Evidence Act 2006, s 106(3).

[9] To the definition of “overseas practitioner” in s 52, relevant to the principle of legal professional privilege in s 54, substituting a judicial discretion to determine whether a person from a country other than Australia or New Zealand is entitled to undertake work normally undertaken by a lawyer or patent attorney under the laws of another country.

[10] To s 95 governing cross-examination by parties in person, clarifying that the section applies in both civil and criminal proceedings.

[11] To s 107 governing directions for the way in which child witnesses give evidence, substituting a new entitlement for “child witnesses” (newly defined in s 4) to give evidence by one or more alternative ways, but providing for either party to apply to have the child witness give evidence in the usual way, which the judge must consider where the “interests of justice” lie, as well as the grounds for a witness giving evidence in an alternative way in s

103(3) of the Act.

[12] R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [69] per Blanchard J, at [125] per Tipping J

and at [203] per McGrath J.

[13] See, for example, the Submarine Cables and Pipelines Protection Act 1996, s 36(f) [14] See Cropp v Judicial Committee, above n 8.