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Te Ururoa Flavell Speech: 'Evidence Bill'

'Evidence Bill' (Second Reading)

Wednesday 15 November 2006; 8.20pm

Te Ururoa Flavell, Maori Party

One of our favourite sayings that most in this House would know is

Nau te rourou, naku te rourou, ka ora ai te iwi
Through united effort our people will prosper

In many ways the Evidence Bill, does exactly that. It brings together decades and volumes of judicial decisions and reforms, all relating to the concept of Evidence, and draws them into one comprehensive scheme.

I see that the Bill also follows the recommendations of the Law Commission, a body which has earned considerable credibility for its ability to provide independent and systematic review, reform and development of New Zealand law.

In 1989, the Law Commission was asked to examine the statutory and common law governing evidence to proceedings before courts and tribunals, and to make recommendations for reform.

And in that regard I want to mihi and to commend our current Law Commission - Rt Hon Sir Geoffrey Palmer; Dr Warren Young; Helen Aikman QC and Hon Justice Edward Taihakurei Durie of Ngati Kauwhata and Rangitane.

The Law Commission is honour bound in making its recommendations to, and I quote:

“take into account Te Ao Maori (the Maori dimension) and must also give consideration to the multicultural character of New Zealand society:”.

Mr Speaker, I give this context to explain that it is because of this transparent and explicit commitment to consider Te Ao Maori, that the ten years of research and consultation undertaken by the Law Commission on the Evidence Bill, therefore gives its recommendations all the more weight.

We also acknowledge the role of the Maori Advisory Committee which assists in facilitating consultation with Maori, in identifying projects to advance Te Ao Maori, and to encourage the reflection of Te Ao Maori in the work of the Commission.

So with such a strong basis for examining the relevant statute and case law about Evidence, let me now turn to some of the detail of the Bill.

Mr Speaker, I am not a lawyer, but there are some key concepts that the Evidence Bill is promoting which the Maori Party totally endorses.

Concepts such as:

- promoting fairness to parties and witnesses;

- protecting rights of confidentiality;

- avoiding unjustifiable expense and delay.

And we are rather intrigued, by the proposal for facts to be established by the application of logical rules. Well what sort of evidence could any Court hear, if it wasn’t logical?

This is where the revelation from the Law Commission is so startling.

The Law Commission Report states that the reform proposed by the Code will not achieve its purpose unless accompanied by a change in approach by practitioners and the judiciary.

In other words, the radical reform must be that practitioners are now to apply ‘common sense’ on what is relevant and what should be included. What sort of sense did they apply before is the question?

In line with this new common-sense approach, it was very heartening to see the amendments proposed by the select committee which are exactly that.

- The Hearsay rule is amended to provide that a party intending to offer hearsay evidence must give written notice to the other party– setting out why they’re admitting the evidence, its applicability, and the circumstances that provide a reasonable assurance that the statement is reliable. We believe that is very sensible.

- The Removal of clause 33(3)(f) which refers to a person’s reputation for being untruthful. It is of course common sense, we would have thought, that a person’s reputation is irrelevant and should not be considered when assessing the veracity of their evidence.

- That clause 40 be amended to provide that no evidence can be given or question put relating, to the sexual reputation of the complainant in sexual matters. The committee considered that any reference to a person’s sexual reputation is irrelevant and should not be admitted;

The Maori Party also supports the recommendation from the Select Committee that provided for judges to recognize the rights affirmed in section 25 of the New Zealand Bill of Rights Act 1990.

I think it is important to revisit some of these fundamental rights.

The rights to:

- A fair and public hearing by an independent and impartial court;

- be tried without undue delay;

- be presumed innocent until proved guilty according to law;

- not to be compelled to be a witness or to confess guilt;

- the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both;

- the right, in the case of a child, to be dealt with in a manner that takes account of the child's age.

These are basic, fundamental rights; rights of a democratic justice system.

We are very interested in the new restrictions that have emerged, on the right to remain silent so as not to self-incriminate to be available only to those facing prison.

The right to remain silent is an issue that has been confronting the nation, face on, in the midst of the media frenzy around the death of the two Kahui babies.

If one took the talkback shows as a gauge of public opinion, the shock waves that rumbled throughout Aotearoa with the reluctance of the family to come forward, would certainly indicate that as a nation, there was universal condemnation of the delay.

But as the defence lawyer Gary Gotlieb stated, the family members were entitled to remain silent – whatever the nation thought. It was a basic principle of our law, no matter how controversial, or how unpopular, everybody has the right to remain silent.

Mr Speaker, the Evidence Bill sets in place a massive amalgamation of the various aspects of the law of evidence.

And I want to just return, again, to these concepts of logic, of fairness to parties and witnesses, of rights of public interests.

I was interested in the speech delivered by Mr Fairbrother at the first reading of this Bill, when he reminded the House, and I quote:

“in the criminal law, where the State is the prosecutor, we are really not in a battle about truth but in a power relationship. …that imbalance of power underlies many of our rules on the law of evidence, and most of those rules will still be carried forward in this new Evidence Bill”.

Ngati Kahungunu lawyer, Moana Jackson, in his legendary report The Maori and the Criminal Justice System - a new perspective: He Whaipaanga Hou gave further explanation of this power relationship, in suggesting the ideal of an ‘accultural and independent justice’ is always fraught; and that law, as with any other social practice, is culturally bound.

Thus being the case, the Maori Party would be interested, when this Bill enters into the Committee stage, to understand and see clarification of the nature of the power relationship that Maori were able to enter into, in contributing to the discussions around evidence.

While the list of individual submitters included some familiar names such as Annette Sykes and Maui Solomon, and the list of organisations included Te Puni Kokiri and the Maori Land Court, it is disappointing to see that there was no formal forum by which hapu and iwi or Maori justice organisations were met with.

It is plain common sense that evidence law affects every statement made by every witness in every court – so is important not just that rules are clear, simple, accessible – but that they are culturally relevant.

The Maori Party, in our very Parliamentary presence, stands for the values of democracy, as ‘a form of government in which the people have a voice in the exercise of power’.

We will support the Evidence Bill at its Second reading, because of our respect of the voices from people within the Law Commission, within the Maori Advisory Committee, and those consulted.


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