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

Previous Law Commission advice on the Evidence Act 2006

1.11The Law Commission has been monitoring the Act since it came into force. During the past five years, we have provided several pieces of advice to the Minister of Justice on the operation of various aspects of the Act.

1.12In 2007, following public disquiet at the non-disclosure to the jury of previous convictions of two former police officers tried and acquitted of sexual offending, the Law Commission was asked to review the existing law relating to the disclosure to criminal courts of evidence of defendants’ previous convictions, similar offending and bad character.11

1.13That reference was given before the Evidence Act came into force and therefore the use of the term “existing law” in the terms of reference was to the pre-Act common law. However, the terms of reference also clearly asked the Law Commission to consider the effect that the Act would have in relation to the matters covered in the reference.

1.14The Law Commission issued a final report in response to this reference in May 2008.12  The Law Commission concluded that, in view of the short period of time that the Evidence Act had been in force during its review, it was not convinced that there was any problem with the way the Act dealt with the issues. However, the Law Commission thought that it was premature to conclude that no change was necessary. It therefore proposed that it would continue to monitor the situation closely and report back to the Government by 28 February 2010.13
1.15 Accordingly, further advice was provided to the Minister of Justice in 2010 on the operation of the propensity and veracity provisions of the Act. The Law Commission’s view at that time was that the Act was generally working well, although there were some instances of pre-Act approaches being adopted. The Law Commission recommended, again, that the matter be kept under review and that any amendments that might be necessary could be included in our first report under s 202.14  This advice and the Law Commission’s 2008 report are discussed in further detail below in the chapters of this report addressing the veracity and propensity provisions of the Act.
1.16 The Law Commission also provided a stand-alone piece of advice to the Minister of Justice on s 35 of the Act and previous consistent statements.15  In R v Barlien, the Court of Appeal had drawn attention to what it regarded as significant deficiencies in the present formulation of s 35 of the Evidence Act 2006, and referred the matter to the Law Commission and the Ministry of Justice for consideration.16  This advice is discussed further below in relation to our consideration of s 35 of the Act.

1.17Copies of the unpublished advice on the veracity and propensity provisions and s 35 are contained in Appendices 2 and 3 to this report.

11The terms of reference for that review were:
“The Commission is to review the existing law relating to the extent to which the court in a criminal trial is made aware of:
(a) The prior convictions of the accused;
(b) Any other allegations of similar offending by the accused;
(c) Any other evidence of the accused’s bad character;
In the course of its review, the Commission is to consider:
(a) The effect of any change to the existing law brought about by the enactment of the Evidence Act 2006;
(b) The law in other comparable jurisdictions including the United Kingdom, Australia and Canada. and make any proposals for changes that are necessary and desirable.”
12Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC R103, 2008).
13At 10.
14Letter from Geoffrey Palmer (President of the Law Commission) to Simon Power (Minister Responsible for the Law Commission) regarding the Evidence Act review and the operation of the veracity and propensity provisions (1 April 2010).
15Letter from Warren Young (Deputy President) and Val Sim (Commissioner) to Simon Power (then Minister of Justice) regarding R v Barlien [2008] NZCA 180, [2009] 1 NZLR 170 and s 35 of the Evidence Act 2006 (8 July 2009).
16R v Barlien [2008] NZCA 180, [2009] 1 NZLR 170 at [64]–[73].