The Law Commission has been engaged for close to a quarter of a century with reform of the law of evidence in New Zealand.
In August 1989 it was asked to review the entirety of this body of law in as clear, simple and accessible form as could be advanced in this country. There were a respectable number of doubters as to the prospects of the Commission’s preference for an Evidence Code. Nevertheless the work was advanced and resulted in the enactment of the Evidence Act 2006. That statute contained some progressive advances – such as that relating to propensity evidence – which were considered to be contentious at that time. But as a safeguard, and because no statute of this kind can ever be complete and perfect on enactment, Parliament made provision for the operation of the Act to be reviewed by the Commission at successive five yearly intervals.
In February 2012 the Minister of Justice, the Hon Judith Collins, exercised her powers under s 202 of the Act to trigger the first of these five yearly reviews. The review has been accomplished within 1 year of the Commission being given this reference as required by the Act, and will be tabled in Parliament as a Report of the Commission.
As to the form of this review, the Evidence Act does not contemplate a first principles review. Section 202 provides for an operational review as to whether the Act is working as was contemplated by Parliament. At an early stage the Commission determined that rather than picking through matters which might be thought to need attention, or which have been drawn to our notice, it was best to undertake the task systematically. We have tried to describe how the law has got to its present state so that there is in existence one document setting out clearly the evolution, interpretation, and operational readiness of the law of evidence. In taking that course we hope that the report will thereby not only fulfil its task of reporting to the Minister, but be useful to the profession, the judiciary, and policy-makers for future reference as well.
As to the content of the review, we are gratified that there is widespread acceptance that the original evidence project was a thoroughly important and worthwhile initiative in New Zealand law. It has overwhelmingly met the objectives of its proposers and the needs of users. The Evidence Act is the first port of call in the practice of evidence law in New Zealand.
We have recommended some changes, which are in two categories.
First, rather like the tune up afforded to an automotive engine on a periodic check, there are some things that can be made to improve the performance of the Act. Those are relatively straightforward. We are particularly grateful to submitters for drawing them to our attention.
Second, as to major matters, happily there is only one. After a good deal of consultation and consideration we have recommended that s 35(1) and (2) of the Act (which deals with prior consistent statements) be repealed. The section has proved difficult and contentious in practice, even with the assistance of several appeals to the Supreme Court of New Zealand. We have taken the view that the problems which this section has sought to deal with can be adequately and more simply dealt with by the general admissibility precepts in the Act (ss 7 and 8).
The legal and policy advisors who worked with the President on this reference are Allison Bennett, Tania Chin, Susan Hall, Sophie Klinger and Mark Wright.