UNDER EMBARGO UNTIL 11.00AM 4 April 2013
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MEDIA RELEASE
4 April 2013
Hon Sir Grant Hammond KNZM
President
Law Commission

Evidence Act Working Well

The Law Commission has completed a review of the Evidence Act, the law which governs what information can be put before the court in criminal and civil trials.

The 2006 Act arose out of an Evidence Code produced by the Law Commission in 1999 after a decade of research and consultation with special interest groups and individuals. It contains a provision requiring the Law Commission to undertake a five yearly operational review, and to report to the Minister of Justice on whether any provisions should be amended or repealed. This is the first such review.

Law Commission President, the Hon Sir Grant Hammond, said consultation and detailed consideration of cases decided under the Act show that the Act is generally working well and is a significant improvement on the law that preceded it.

Sir Grant said the Commission had undertaken a fine tuning exercise rather than a first principles review. He said that the feedback the Commission received was largely positive and that the problems identified were mostly technical and minor.

Sir Grant said the most significant recommendation made by the review relates to previous consistent statements under s 35 of the Act. The section provides that an out of court statement made by a witness that is consistent with what that witness says in evidence is only admissible if their veracity or accuracy is challenged. “This is a provision that has not worked well in practice and we recommend its repeal. If this recommendation is accepted, such previous consistent statements will be dealt with under the general admissibility rules in

the Act and will be admissible if they are relevant, probative and do not needlessly prolong proceedings.”

The Commission is also recommending an amendment to the “rape shield” provision. If accepted, it would require a defendant in a sexual case who wished to offer evidence about the sexual experience of the complainant to file a notice prior to the trail beginning for decisions about the admissibility of such evidence to be made pre-trial. It is hoped that such procedural mechanism will lessen the impact of the trial process for complainants, as well as creating efficiency gains.

Other key recommendations include:

• Extending the privilege that protects communications made in the course of settlement negotiations and mediation to criminal proceedings so that it will protect communications made in plea negotiations. This will enable free and frank exchanges in the course of such negotiations.

• An amendment to the settlement and mediation privilege to allow a judge to override the privilege and order disclosure of otherwise protected information if he or she believes it is in the interests of justice to do so. This will allow a balance to be struck between protecting “without prejudice” negotiations but ensure that parties cannot, for example, misuse the negotiation or mediation process to obtain a tactical advantage in a dispute.

The full Report will be available on the Commission’s website once it has been tabled at http://www.lawcom.govt.nz/project/review-evidence-act-2006/report
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