Chapter 1
Initial review under section 202: background, purpose
and guiding principles

Matters not considered in this report

1.35In the course of this review, we received various submissions asking us to consider matters we considered were outside of its scope. Although not canvassed in this report, these matters could merit further consideration in an appropriate context.

Employment Court and arbitration proceedings

1.36We received submissions suggesting that the Act should be extended to apply to the Employment Court and arbitration proceedings, and the privilege provisions extended to all tribunals. The evidence that may be considered by tribunals and arbitrators is a matter that goes to the heart of how specialist courts and tribunals should operate, and the fundamental nature of arbitration itself (founded in the contractual agreement between parties). Consideration of whether the Act should be extended to tribunals and arbitration should take place in a setting that considers whether this is appropriate in light of the nature of the specialist courts, tribunals and arbitration, rather than as an ad hoc consideration as part of this review.21

Expert evidence

1.37We were asked to consider whether the process for giving expert evidence should be changed. Issues with the current way expert evidence is adduced in court was raised in a recent newspaper article.22  Among other matters, the article raises questions about the impartiality of experts, the so-called “CSI effect” and the effectiveness of presenting expert evidence in an adversarial manner. These are interesting questions. Ultimately, however, they involve substantive policy issues of whether there should be a new approach to presenting expert evidence in court, rather than an assessment of whether the current expert opinion provisions are working as intended.

Right to silence

1.38An editorial in the New Zealand Law Journal noted that two prominent cases have brought the issue of the “right to silence” into the spotlight.23  The editorial went on to say, “[t]his would be a matter that it would be proper for the Law Commission to consider as part of its review of the Evidence Act 2006.”24

1.39The right to silence is often characterised as an overarching right that applies across a number of contexts. There are a number of provisions that relate to the “right to silence” under the Act, including s 32 (which provides that the fact-finder cannot be invited to infer guilt from a defendant’s silence before trial); s 33 (which provides that only the defendant, defendant’s counsel and the judge may comment on the fact that the defendant did not give evidence at trial); and s 60 (which relates to the privilege against self-incrimination).

1.40We understand the proposals noted in the New Zealand Law Journal editorial to relate to judicial or counsel comment on the fact that a defendant has chosen not to give evidence in court, or their failure to answer police questions when being investigated. These are fundamental policy matters that we consider are outside the scope of this technical review.

Issues relating to vulnerable witnesses

1.41 We have considered the recommendations made by Elisabeth McDonald and Yvette Tinsley in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand that relate to a range of evidence issues.25  Most of these appear in this report in the discussion of the relevant provisions of the Act to which they relate. Of the remainder, there are some that on the face of it appear to have merit, but which are not strictly about the operation of the current Act as they do not involve amending the Act. Others require a number of substantive policy issues to be resolved and may have significant cost and resource implications. Many also require detailed consultation to occur with the judiciary, the profession, relevant government departments and other interest groups. We do not consider that these issues can be resolved in a narrow focused technical review such as that envisaged by s 202 and should be considered and advanced separately if appropriate. A brief description of these issues follows.

Recording of evidence for use at re-trial

1.42McDonald and Tinsley recommended that where pre-trial or trial recording of the complainant’s evidence is undertaken, the prosecution should be able to apply for the recording (appropriately edited if necessary) to be used at any re-trial. In deciding whether to allow the use of the recorded evidence, the judge should take account of the needs of the new trial and ensure that the defendant will not be unfairly disadvantaged. Where evidence recorded pre-trial or at trial is used in a re-trial, there should be provision, where necessary, for any supplementary evidence to be given in an alternative way.26

Defence counsel access to evidential video interviews

1.43There was a recommendation that s 106(4)(a) of the Evidence Act be amended so that defence counsel would not automatically be entitled to a copy of the evidential interview, but could apply to the judge for a copy. Where a copy of the evidential interview is not applied for, or if the judge declines to order that a copy is provided, regulations should govern requirements for reasonable viewing time on police premises (or premises agreed by the parties) in addition to the provision of a transcript of the interview. Where the judge orders that a copy of the interview should be provided to the defence, regulations should govern the protocol around possession and viewing of that copy.27

1.44Further information is needed about whether there are actual practical difficulties arising from the operation of the current provision.

Communication assistance

1.45Section 80 provides for communication assistance for defendants in criminal proceedings and for witnesses in civil or criminal proceedings, subject to the judge’s discretion (per s 81). “Communication assistance” is defined in s 4.

1.46McDonald and Tinsley have recommended that the s 4 definition of “communication assistance” should be amended to specifically include assistance with understanding questions for witnesses who do not have a communication disability, but who may struggle to comprehend questions (for example, because of age).28  In an Issues Paper, the Law Commission has previously made similar suggestions to allow for assistance in the process of answering questions for a wider group than just witnesses with a “communication disability”. The Law Commission commented:29

This would allow for an incremental and careful approach to the introduction of intermediaries, who could assist with the phrasing of questions in an appropriate way. Their primary initial role would be to assist with communication and questioning issues rather than actually question witnesses.

1.47It should also be noted that in 2011 Cabinet agreed to changes to introduce intermediaries to improve the questioning of child complainants,30  although this set of decisions is currently on hold.

1.48This proposal involves expanding of the scope of s 80 and the associated definitions, rather than concern as to whether the current provisions are working as intended. Although the Law Commission remains of the view that amending s 80 of the Act could be a useful avenue to allow for the use of intermediaries, consideration of the merits of doing so would involve a number of substantive policy issues.

Fast-tracking of sexual offending cases

1.49McDonald and Tinsley have recommended that sexual violence cases be fast-tracked where possible.31  We consider that while fast-tracking of certain cases may be desirable, it is not in itself an Evidence Act issue; rather it is a practical, procedural issue that is best addressed through non-legislative means.

Expert evidence or statements on sexual offending myths and misconceptions

1.50McDonald and Tinsley have recommended that in sexual offending cases, the parties should be encouraged to agree upon expert evidence or a written statement to educate the jury regarding common myths and misconceptions. Where prepared, such statements could be admitted by consent as a joint statement under s 9 of the Evidence Act.

1.51We note that this is not an issue requiring legislative change, since what is proposed is already possible within the existing provisions of the Act. In any event, we do not believe that it is appropriate to use legislation to encourage parties to agree on a particular course of action, and it is not clear that legislative amendment would achieve this aim.

Public interest immunity

1.52New Zealand has two statutory provisions that directly relate to this area of law: s 70 of the Evidence Act 2006, which provides a judge with a discretion to direct that communications or information relating to “matters of State” not be disclosed in a proceeding; and s 27 of the Crown Proceedings Act 1950, which provides that the Crown is not required to discover a document if the Prime Minister certifies that disclosure would be likely to prejudice certain matters such as national security, or the Attorney-General certifies it would be likely to prejudice the prevention, investigation or detection of offences.

1.53The Crown Law Office has asked us to consider the relationship between these two provisions as well as whether there should be a regime that governs the use of classified information in civil proceedings. The Law Commission is currently undertaking a review of the Crown Proceedings Act, with a view to modernising and simplifying it. Our view is that consideration of public interest immunity fits better under the Law Commission’s review of the Crown Proceedings Act. Accordingly, the relationship between s 70 of the Evidence Act and s 27 of the Crown Proceedings Act will be considered in that review, along with the other matters raised by the Crown Law Office that fall within the review’s scope.

21For our preliminary view on evidence in tribunals, see Law Commission Tribunal Reform (NZLC SP20, 2008).
22Nikki McDonald “How effective are expert witnesses?” The Dominion Post (online ed, Wellington, 18 December 2012).
23Bernard Robertson “The right to silence” [2012] NZLJ 221.
24At 221.
25Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011).
26At 308.
27At 307.
28At 313.
29Law Commission Alternative Pre-Trial and Trial Processes: Possible Reforms (NZLC IP30, 2012) at 39.
30Cabinet Domestic Policy Committee “Child Witnesses in the Criminal Courts: Proposed Reforms” (29 June 2011) DOM Min (11) 10/1 at [10]–[11].
31McDonald and Tinsley, above n 25, at 305.