Law Commission releases report proposing amendments to Evidence Act

The Law Commission is obliged to undertake a 5-yearly review of the Evidence Act 2006 and report to the Minister of Justice on whether any provisions should be amended or repealed. In the first such review, the Commission has released its recommendations, stating the Act is “generally working well” and that it significantly improves upon the law that preceded it.

Justice Minister Judith Collins has welcomed the report, which proposes four principal areas for overhaul:

  1. A repeal of s 35 regarding the admittance of previous consistent statements, which currently provides that an out-of-court statement made by a witness that is consistent with what that witness says in evidence is only admissible if their veracity or accuracy is challenged. The report recommends instead that such statements be dealt with under the general admissibility rules in the Act, and will be admissible if they are relevant, probative and “do not needlessly prolong proceedings”.
  2. An amendment to the “rape shield” provision, that would see a defendant in a sexual case who wished to offer evidence about the sexual experience of the complainant obliged to file a pre-trial notice for a decision on the admissibility of such evidence. This amendment is designed to lessen the impact of the trial process on complainants, and provide increased efficiency.
  3. Extending the privilege that currently applies to communications made in settlement negotiations and mediations to criminal proceedings, in order to enable free and frank communications in instances of plea negotiations.
  4. Amending the settlement and mediation privilege so that a judge may override the privilege and order disclosure of otherwise protected information if he or she believes it is in the interests of justice to do so.

However, criminal barrister Marie Dyhrberg is concerned that some of the proposed changes appear to be another move in favour of the Crown and against the accused.

Prior consistent statements

In consideration of the s 35 repeal, she says “I believe the fair test for prior consistent statements is they can be admitted if the defence accuses the witness of recent fabrication and a prior consistent statement can rebut that allegation.” Given the problems associated with how to ascertain what is relevant and probative, Ms Dyhrberg suggests that in the event that the statement deals with the allegations at issue then “there is not much resistance to presume relevance and probative value, which in effect puts the onus on the accused to make a case to show the statements are not admissible.” Currently the provision is that prior consistent statements are admissible only so far as it is necessary to meet the challenge to veracity, whereas the proposed repeal would mean all prior consistent statements could be admissible. “If the complainant went out and told 20 people, that evidence would all be relevant and admissible, which is unfair [to the accused].” Ms Dyhrberg says the existing standard is more workable and fair because, if it is applied properly, it limits the number of admissible statements, and their extent.

The “rape shield” 

Similarly, the “rape shield” amendment presumes that the allegations made by a complainant are true and puts the sympathy towards a complainant ahead of the right of the accused to have a fair trial. Ms Dyhrberg is concerned this seems to undermine sections 25 (e) and (f) of the New Zealand Bill of Rights Act (that is, the right to be present at the trial and to present a defence; and the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution). “The amendment would allow for a complainant to be given notice about the defence case prior to trial and to be able to prepare an explanation for that. The jury is therefore denied the opportunity to assess credibility in the course of the trial.” She sees this as “another erosion” of the right to silence in a trial. “Usually such decisions are made, and ought to be made, during the course of a trial when the judge has a feel for the case and sees whether the evidence is relevant and as a matter of fairness is admissible.” She fears the proposed amendment provides another procedural barrier in favour of the Crown, making special rules for criminal trials involving sexual allegations, whereas she says challenges to the Crown case ought to have the same rules for all cases.

Privilege overturned 

The issue of a judge being able to negate privilege after the defence and prosecution has engaged in full and frank discussion could erode something that currently works well, Ms Dyhrberg says. “There does not seem to be any basis for saying at present there is a problem with the negotiation or mediation process that requires such a major change. It is difficult to see how you gain such a tactical advantage that the rules are changed and privilege can later be negated. Discussions at the time are either privileged or they are not.” She queries what examples there are of such misuse of the negotiation process.

“Given the defence cannot use anything from privileged discussions in a case in court, there is no advantage, unfair or otherwise, if resolution is not the result” says Ms Dyhrberg. She is concerned that this amendment merely provides a statutory vehicle to take away the veil of confidentiality, which could be used against an accused. Clients usually agree to their counsel discussing resolution with the prosecution on the basis of confidentiality and that discussions cannot be used against them later. “When properly advised that a judge can consider in evidence previously privileged communications, then clients are highly unlikely to instruct counsel not to enter such negotiations.” Ms Dyhrberg says that counsel who act in the best interests of their clients may also choose not to enter into discussion under such circumstances.

* What do you think of the Law Commission’s proposals? 

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