New Zealand Law Society - Bill makes changes to evidence by vulnerable witnesses

Bill makes changes to evidence by vulnerable witnesses

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The Evidence Amendment Bill has received a third reading in Parliament and will come into force by Order in Council or on 1 July 2017, whichever is earlier.

The bill amends the Evidence Act 2006. Its objective is to improve court processes for vulnerable witnesses, The bill largely responds to the Law Commission's first procedural review of the Evidence Act, released in 2013.

A number of other changes are made, including a provision that plea discussions in criminal cases are privileged.

The key elements of the bill are:

  • Introduction of a presumption that child witnesses give evidence in alternative ways and have the right to a support person. Relevant new provisions are section 29 of the bill, section 32 which replaces section 107 of the Evidence Act with new sections 107, 107A and 107B, and section 25 which amends section 79 to clarify entitlement to support persons.
  • Placement of safeguards on the access to and use of vulnerable witnesses' video record evidence. This is effected through sections 32A, 33 and 33A (which inserts new sections 119A and 119B in the principal Act). The legislation creates a presumption that child witnesses give evidence through the video of their police interview, via closed-circuit television or from behind a screen.
  • Introduction of notice requirements where the defence intends to use evidence of a complainant's sexual history with a person other than the defendant. The main provision to achieve this is section 16 which inserts a new section 44A ("Application to offer evidence or ask question about sexual experience of complainant in sexual cases").
  • Amendments by section 21 to section 54 of the Evidence Act applies legal privilege to a person who requests as well as obtains professional legal services.
  • Changes to section 57 of the Evidence Act by section 22 of the bill to provide that plea discussions in criminal cases are privileged.
  • Section 90 of the Evidence Act is amended to clarify the admissibility of previous consistent statements.

Justice Minister Amy Adams says the legislation will reduce unnecessary trauma and better protect victims who become involved in the court process through no fault of their own.

"The changes in this bill are a major step in delivering on the Government's commitment to improve the experience of child witnesses and victims of sexual violence in the courtroom."

Legislative history

The bill was introduced on 27 May 2015 and referred to the Justice and Electoral Committee on 2 July 2015 with submissions closing on 13 August 2015. The committee received 12 submissions, including ones from District Courts Judges and the New Zealand Law Society, and released its report on 25 November 2015.