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Disclosure to Court of Previous Convictions

Embargoed until noon, 12 June 2008

Disclosure to Court of Previous Convictions and Related Matters

The Law Commission’s Report on “Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character” was tabled in Parliament today.

“This report has been a demanding and difficult one. The subject is one upon which opinions differ markedly”, the President of the Law Commission Sir Geoffrey Palmer said today.

“Our terms of reference revolve around the law of evidence. The law changed after the trials that gave rise to this reference. In particular the Court of Appeal held that the Evidence Act 2006 that came into force on 1 August 2007 changed the law relating to the admissibility of previous convictions and similar offending.”

“The issue in this reference was how previous convictions or misconduct which point to a propensity to offend are balanced against the prejudicial effect when a jury knows of such prior behaviour.”

“In order to ensure that the report reflects the manner in which trials are actually conducted, the Law Commission asked the Honourable R A McGechan QC, a retired judge of the High Court of New Zealand, to lead this project on its behalf. Most of the work in this report is his, but the Commission takes responsibility for it all.”

“The Commission takes the view that the law prior to the commencement of the new Evidence Act was too restrictive but now the Court of Appeal has held that a different approach is to be taken. The Commission is of the view we need to wait and see how that approach works out.”

“We concluded therefore it would be premature to reach a conclusion that the current rules need to be changed again since the rules have recently been changed. We cannot be sure how the new law will work out in practice.”

“This has led us to recommend that the Commission should continue to monitor and further assess the operation and impact of the provisions of the Evidence Act 2006 as they relate to previous convictions, propensity and veracity. The Commission will report back to the government by 28 February 2010 whether any amendment is required in light of the experience in the intervening period.”

“That recommendation disposes of the reference. But we have some other observations to make.”

“The Commission’s investigation identified some disturbing features of the trial process as it applies to sexual offences.”

“We formed the view that the government should undertake an inquiry into whether the present adversarial trial process should be modified or replaced by some alternative model, either for sex offences or for some wider class of offences.”

“The Task Force on Sexual Violence which is presently sitting should be asked to define the issues and possible options that could be considered by that inquiry.”

“We do not express any view about what the outcome of the inquiry should be but we are troubled about the manner in which these cases are currently dealt with”, Sir Geoffrey concluded.


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