Call for submissions: Law Commission Evidence Act review includes family and sexual violence issues
Thu 01 Jun 2023
Te Aka Matua o te Ture | the Law Commission is asking for public feedback on the 3rd review of the Evidence Act. The review includes key issues related to family violence and sexual violence cases. Submissions are due by 30 June 2023.
Law Commission call for submissions on Evidence Act review
Te Aka Matua o te Ture | the Law Commission is working on their 3rd and final statutory review of the Evidence Act 2006. The Law Commission has published an issues paper and is currently calling for submissions.
The closing date to make a submission is 30 June 2023.
This Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act is looking at a number of issues related to evidence in civil and criminal proceedings.
While the scope of the review does not include the amendments to the Evidence Act made by the Sexual Violence Legislation Act 2021, the review does include key issues related to family violence and sexual violence cases.
The review is also considering te Tiriti o Waitangi, including te ao Māori perspectives on evidence.
Issues Paper 50 provides an overview of the issues the Law Commission is considering for this review and includes questions for feedback. The Law Commission has also published a brief summary of the issues paper.
Key issues related to family violence and sexual violence
Chapters 3, 9, 10 and 14 of the Issues Paper raise key issues related to family violence and/or sexual violence. We highlight these below. However, other chapters of the Issues Paper may be relevant to family and sexual violence cases.
Issues related to victims who are compelled or required to give evidence as witnesses
Chapter 3 of the Issues Papers looks at hearsay provisions, including how these provisions relate to victims of family and sexual violence.
Hearsay is when a statement that is made outside the courtroom, such as a police interview, is offered in court without the witness giving that evidence in person in court. Generally, hearsay evidence is not admitted, and witnesses are required to give their evidence in person. This is so witnesses can be questioned about their evidence and so that a jury or judge can observe the witness and assess the credibility of their evidence. Exceptions to the rule against the admitting hearsay include when the witness is ‘unavailable’ to come to court due to a limited number of reasons (for example, having died or cannot be found).
Courts have the power to compel or require witnesses, including victims of family violence or sexual violence, who are not ‘unavailable’ to give evidence in person in court. The court can issue a warrant for a witness to be arrested and brought to court if they do not turn up to give their evidence. The court can also detain in custody a person who comes to court but refuses to give evidence or answer questions.
In the Issues Paper, the Law Commission notes that the law is unclear about when it is possible for a judge to allow a witness to not give their evidence if they are not 'unavailable', but have a good reason for not giving evidence, for example if there are risks to their safety or wellbeing.
The Law Commission refers to the case, Awatere v R, in which a victim of family violence who did not want to give her evidence was declared a hostile witness, and then left the courtroom in a state of distress. In that case, the judge did not arrest or detain her, and allowed her police interview (a hearsay statement) to be offered by the prosecution as her evidence. The Law Commission is seeking feedback on whether an exception to the general rule of excluding hearsay evidence should be made for similar situations, and if so, what the criteria should be.
The Law Commission also identifies an issue with the absence of guidance about how much effort should be required of Police to find a witness before the witness is declared 'unavailable' and the option to allow hearsay statement is considered. The Commission note that this may become an issue more often as Police increasingly have video recordings of at-incident statements and police interviews. The Commission is asking for feedback on whether specific guidance on this point is needed.
Issues related to witness veracity (general honesty)
Chapter 9 looks at veracity evidence. Veracity is defined in the Evidence Act as “the disposition of a person to refrain from lying.” This refers to whether a person tends to be honest rather than whether their evidence is true. The general rule is that evidence about a person’s history of telling the truth or lying may not be offered unless it is 'substantially helpful' in assessing a person’s veracity.
The Law Commission is seeking feedback on whether a single lie or a previous complaint of violence that did not result in conviction should fall under the veracity rule, and whether guidance is needed on the threshold for 'substantial helpfulness'.
Issues related to propensity evidence about defendants
Chapter 10 looks at propensity evidence (section 43 of the Evidence Act). The Evidence Act defines propensity evidence as evidence "...that tends to show a person’s propensity to act in a particular way or to have a particular state of mind." This tends to be evidence that a person has behaved similarly in the past and raises questions about whether that is relevant to assessing the evidence in a particular case.
The Issues Paper outlines 4 issues in this area, including questions about whether evidence that a person was previously tried but acquitted of similar behaviour (prior acquittal evidence) is too prejudicial to admit and whether certain types of behaviour (for example, sexual offending against children) are so ‘unusual’ that they demonstrate a propensity to act in a certain way. The Law Commission seeks feedback on whether these types of evidence should be admissible.
Issues related to cross-examination of victims of family and sexual violence
Chapter 14 looks at three aspects of the trial process related to cross-examination:
Section 88 prevents questions about the complainant's occupation in sexual cases except with permission of the judge. The Law Commission highlights that research from Elisabeth McDonald identified 2 issues with this section. First, compliance is low and complainants are routinely asked about their employment status. Further, the scope of the section might be too narrow and doesn't include related aspects such as whether a complainant is a student, single parent, beneficiary, or evidence about their education or qualifications. The Law Commission is seeking feedback on these 2 issues. The Commission noted that Elisabeth McDonald suggested changes to section 88 in a select committee submission on the Sexual Violence Legislation Bill, but no changes were made at that time.
Section 92 creates a duty on cross-examining lawyers to ask witnesses about any evidence that they will offer which contradicts the witness’ evidence. The duty is intended to ensure that witnesses are given an opportunity to give their perspective on that evidence. Elisabeth McDonald’s research identified that in some cases the duty is resulting in unnecessarily lengthy and distressing cross-examination and may be failing to promote the fairness to witnesses that is intended. These issues were specifically identified in relation to complainants in sexual cases but may also be occurring in family violence criminal cases. The Issues Paper discusses Elisabeth McDonald's research and Isabel Randell's report That's a lie: sexual violence misconceptions, accusations of lying, and other tactics in the cross-examination of child and adolescent sexual violence complainants (2021).
Section 95 prevents a defendant from personally cross-examining complainants and certain witnesses in cases involving sexual offending, family violence or harassment. In this situation, section 95 also allows the judge to appoint a person to ask questions for the defendant if they are unrepresented (do not have their own lawyer). The Issues Paper highlights there is uncertainty about the interpretation of section 95 and whether the appointed person (usually a lawyer) should only ask the questions that the defendant wants or can also ask the questions they think would be useful. The Law Commission is seeking feedback on whether legislative reform is needed or whether the issue should be resolved through case law.
How to make a submission
The issues paper covers many topics. You do not need to comment on all topics. You can comment on or answer questions on select topics.
You do not need to be a lawyer or legal expert to make a submission. However, given the technical nature of this review, it may be helpful to work with someone who has legal expertise to make sure your feedback has the greatest impact.
The Issues Paper also notes that they "... encourage submitters to provide feedback on both the nature and extent of potential issues in practice as well as preferred reform options. The feedback we receive will be important in our analysis of the case for reform."
For more information on the review, see the Frequently Asked questions. You can also sign up for updates on this review.
Research from Elisabeth McDonald has looked at these issues. See the following open access books:
Law Commission consultation on restrictions for people at high risk of serious sexual and violent offending
In a separate review process, the Law Commission is looking at the laws that keep the community safe from people at high risk of serious sexual and violent offending. These laws allow the detention or supervision of offenders beyond a fixed-term prison sentence (determinate sentence). For the court to order detention or supervision, the offender must have been convicted of a qualifying sexual or violent offence and present risks of further sexual or violent offending. The Law Commission is reviewing preventive detention, extended supervision orders and public protection orders.
The Law Commission's media release notes:
"The Law Commission’s review was prompted by findings by the United Nations Human Rights Committee in 2017 that the laws governing preventive detention were in breach of the International Convention on Civil and Political Rights. In addition, the Court of Appeal has recently held that ESOs and PPOs breach the prohibition under human rights law against punishing a person twice for the same crime. The decision is currently under appeal to the Supreme Court."
The Law Commission has released an Issues Paper and is inviting feedback by 28 July 2023. The Issues Paper looks at whether the law should be reformed and outlines high-level proposals. The media release also notes that "One important area the Commission is seeking feedback on is whether the law should have a stronger focus on providing therapeutic and rehabilitative treatment to people who need to be detained or supervised."
For more information and a full list of issues that are be considering, see the Public safety and serious offenders: a review of preventive detention and post-sentence orders | Hapori whānui me te tangata mōrea nui: he arotake o te mauhere ārai hē me ngā ōta nō muri whakawhiu.
New information guide for victim-survivors
The Backbone Collective has produced a new resource, Reducing risk and harm when going to Family Court: An information guide for victim-survivors (2023). This guide is designed to inform victim-survivors of family and/or sexual violence about the resources available to help reduce the risk of harm when going to the New Zealand Family Court.