Evidence Bill (5)

What assistance in interpreting the proposed evidence legislation will the courts be able to obtain from the common law?

In the absence of any statement from the Attorney-General to Parliament that the Evidence Bill conflicts with the Bill of Rights, it is reasonable to expect that ambiguities and obscurities of the kind discussed in previous blog entries in this series may be resolved by courts with the assistance of cases interpreting the Bill of rights. An example is the relative importance of fairness to the accused, as compared with fairness to the prosecution or fairness to a witness. Given the origins of the Evidence Bill in the Law Commission’s proposed Evidence Code, we are justified in having some suspicions about the Evidence Bill’s claims about its own status.

Clause 5 gives a starting point from which this topic can be explored:

5 Application
(1) If there is an inconsistency between the provisions of this Act and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise.

The question is, therefore, is there some other provision in this Bill that overrides the Bill of Rights and the law that has evolved interpreting the Bill of Rights? Clause 10 refers to the common law:

10 Interpretation of Act
(1) This Act---
(a) must be interpreted in a way that promotes its purpose and principles; and
(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with---
(i) its provisions; and
(ii) the promotion of its purpose and its principles; and
(iii)the application of the rule in section 12.
(2) Subsection (1) does not affect the application of the Interpretation Act 1999 to this Act.

Accordingly, to decide whether the right of the accused to a fair trial takes precedence over the right of the prosecution to a fair trial, we may have regard to the common law (which has established the primacy of the accused’s right to a fair trial), and then qualify that position if required to do so by the provisions of the Evidence Bill. If, then, the Evidence Bill does not state what the relationship of these rights is, the common law would apparently remain operative.
This appears to be consistent with clause 12:

12 Evidential matters not provided for
If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence---
(a) must be made having regard to the purpose and the principles set out in sections 6 to 8; and
(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

Thus the problem we are concerned with has to be resolved by the common law, to the extent that it is consistent with the purposes and principles in cl 6 to 8. The relevant provision here is cl 6:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
… (b) promoting fairness to parties and witnesses

Although the point is arguable, this legislative purpose is not necessarily inconsistent with the common law’s ranking of the importance of the interests in a fair trial.

[Update: the Evidence Bill, in a revised form, was enacted in November 2006 as the Evidence Act 2006, its provisions to come into force at dates to be specified by the Governor-General in Council. The purposes of the Act, in s 6, have been expanded to include "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This makes it clear that the Evidence Act is to be interpreted to give effect to the accused's absolute right to a fair trial.]

Another area in which the common law may remain important is the reliability of hearsay evidence. The common law developed the rule against hearsay, and its exceptions, in an effort to ensure that relevant evidence is reliable. Reliability is also of central concern to the Evidence Bill’s proposed reform of the law concerning hearsay. In particular, cl 18 provides:

18 Admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if---
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; …

What, for example, will be the status of the common law rules concerning the hearsay statements of those who act in concert with the accused in pursuance of a pre-arranged plan? These rules are referred to by various names, in particular as the pre-concert exception, and they apply not just to conspiracy cases, but also to any case where the hearsay statement was made by a person apparently in pursuance of a common plan.

In Canada, where the pre-concert exception has been stated in more precise terms than it has in New Zealand, the Supreme Court has recently held that these rules are in fact reliability rules, applicable under the reformed hearsay law: R v Mapara [2005] SCC 23 (27 April 2005). It is therefore likely that if the Evidence Bill is enacted in its present form in this respect, the common law pre-concert rules would remain applicable and could continue to be developed.