KEY POINTS:
The effects of the new Evidence Act could tip the balance heavily in favour of prosecutors and undermine the prospects of a fair trial, a prominent defence lawyer says.
The act, which came into force this month, has drawn criticism for a number of provisions including the rules around hearsay evidence.
"The act is going to cause immense frustration and uncertainty," says criminal barrister Gary Gotlieb, a vice-president of the New Zealand Law Society. "It was an attempt at codifying the law but it seems to have gone further than that and made quite dramatic changes. It's going to create huge problems, and until these matters go before the court, we simply won't know the practicalities."
Mr Gotlieb questioned the rules around hearsay evidence, after a man was convicted - on the word of a social worker - of inappropriately touching a 6-year-old girl.
"The act has made it hugely easier for prosecutors, giving the opportunity to call evidence that would have never been allowed. I see the right to fair trial being undermined quite dramatically."
He said the girl had been unsure on the witness stand whether anything improper had happened. She also had given two video interviews, one saying that nothing had happened, and the other saying she had been touched inappropriately.
The prosecution had called a social worker who had talked to the girl twice; the second time the girl told her some inappropriate touching had occurred.
"That evidence was allowed to go before the jury, even though the little girl said in evidence that she was not sure it happened," Mr Gotlieb said. "On the basis of the social worker, this guy was convicted. Does that sound terribly fair? I was gobsmacked. I'm just shaking my head."
Several details of the case are suppressed. The man is yet to be sentenced.
Mr Gotlieb said his views were not necessarily the views of the Law Society, but the society's submission on the bill criticised how the act dealt with "hearsay, character, credibility, identification, privilege and confidentiality".
"The society is concerned that many of these changes to the existing law are not justified and will cause real difficulties and injustice in practice," the submission said.
Crown prosecutor Simon Moore dismissed the concerns, saying the act merely reinforced how the courts were already handling hearsay.
"The primary test is, is this evidence relevant, and is it reliable. I have difficulty seeing how too many people can be critical of an act that says that evidence is admissible if it's relevant and reliable," he said.
"While this act is being described as enormous changes, the reality is ... it provides consistency across the board. When the Bill of Rights Act came in, people were saying it was terrible and how will we deal with it. In 10 years' time, people will wonder what all the fuss was."
Mr Gotlieb also opposed the axing of spousal immunity, which had allowed the spouse of the accused to refuse to give evidence.
He said there had been a judicial understanding that this had extended to family members, which could have applied in the recent case of a 15-year-old victim that was compelled to give evidence against her father.
When she refused, she was held in contempt of court and spent a traumatic 45 minutes in a court cell. The trial was aborted and charges of unlawful sexual connection were dropped. The father was later convicted of indecent assault.
But Mr Moore praised the ability to compel witnesses to give evidence, particularly in domestic violence cases where the accused might dissuade the partner from testifying.
