The Law Commission's second five-yearly review of the Evidence Act 2006 has been tabled in Parliament, with the review concluding that the Act is generally working well but with some improvements necessary and desirable.
The report makes 27 recommendations for reform, with a number designed to improve the rules of evidence in sexual and family violence cases, while at the same time ensuring defendants' rights to a fair trial are preserved.
These recommendations include:
- In sexual cases, there should be tighter controls on admitting evidence of the complainant’s previous sexual experience with the defendant and evidence of the complainant’s sexual disposition.
- In family violence cases, complainants should be entitled to record their evidence (including evidence-in-chief and cross-examination) in advance of the trial and have the video played at the hearing.
- Prosecutors should make reasonable efforts to ensure family violence complainants are informed about the various ways of giving evidence and ascertain the complainant’s views on their preferred mode of evidence.
- Judges should be required to intervene when they consider questioning of a witness is unacceptable.
- Judicial directions should be developed to address myths and misconceptions that jurors might hold about sexual and family violence.
The Commission also recommends a new provision to clarify that a court may regulate its procedures for giving evidence in a manner that recognises tikanga Māori.
It says that while some judges already take steps to recognise tikanga where appropriate, for example by allowing karakia to be given when evidence is of a sensitive nature, the Commission considers an express provision would encourage more consistent consideration of tikanga when evidence is given.
The review also includes a number of recommendations to respond to practical problems with the operation of the Act. These include:
- Evidence of a conviction should be admissible as presumptive proof (rather than conclusive proof) that the person convicted committed the offence.
- The Act should clarify that judges may not draw an adverse inference of guilt from a defendant’s pre-trial silence.
- The restrictions on defence counsel access to video interviews of complainants in sexual and violent cases should be removed from the Act.
- Expert witnesses should be required to comply with a code of conduct when giving evidence in criminal proceedings (as they are required to do in civil proceedings).
- A statement made by a defendant in furtherance of a conspiracy or joint enterprise should be admissible against a co-defendant, regardless of whether the statement is hearsay.
- The Evidence Regulations 2007 should be the subject of a separate review.
The report includes an Evidence Amendment Bill, which reflects the Commission’s recommendations requiring legislative amendment.