Flavell: Evidence Amendment Bill
te-pati-maori
Thu Jun 28 2007 12:00:00 GMT+1200 (New Zealand Standard Time)
Flavell: Evidence Amendment Bill
Thursday, 28 June 2007, 4:05 pm
Speech: The Maori Party
Evidence Amendment Bill
Te Ururoa Flavell, Member of Parliament for Waiariki
Thursday 28 June 2007
Ka nui te mihi ki a tatou katoa mo tenei wa.
There is probably no area more under negative public scrutiny at the current time than the criminal justice system.
This in itself is a good thing – too often the system comprising our Courts, our Jails, our Judiciary is shrouded in mystery – incarceration and sentencing decisions vigorously debated around kitchen tables but not, it would seem, open to nationwide discussion.
And so it was with some interest that when Norm Withers of Christchurch, instigated a petition in 1997 after an unwarranted brutal attack on his 72 year old mother - a petition which eventually led to the 1999 Law and Order Referendum - it was obvious that there was intense public interest in the laws of criminal justice.
This interest in the law is not just about the outcomes of the law in operation.
It extends also the system’s inner workings – the ambiguities, the complexities, the rules around evidence.
And so we come today, to this Bill, which is another example where the law itself is proven faulty.
In essence it is about an error made at Select Committee stage, which meant the co-conspirator’s rule was unintentionally deleted.
The three common law exceptions to the rules about ensuring a defendant’s statement can be heard against a defendant – but not a co-defendant in the same proceeding – have been missed out of the Evidence Act 2006.
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The passage of law that this House went through last year, in supporting the Evidence Act 2006, was such that we were all partners in crime, if you like, to the central problem which today’s Bill addresses.
And it is this blind faith that the Parliament entered into, which I believe is useful to examine further.
The legal system should not be beyond the scrutiny of the law.
The fact that the Justice and Electoral Select Committee intended to maintain the co-conspirator’s rule but didn’t – should be subjected to scrutiny – as well as being addressed as we are today.
In the interests of a healthy democracy, we must ensure open access to criticism is part of the normal way of running business.
In the case of this urgent amendment to the Evidence Act 2006, the consequences would have been particularly important in cases where evidence is obtained in which one defendant makes statements which under the current law are able to be used against another defendant.
My co-leader, Dr Sharples, talked extensively the other day, about the implications of such a ruling in the case of serious drug dealing trials, often involved organised criminal groups.
He talked about his own experience with Patua te Ngangara, or ‘Beat the Demon’ drug education – and how the mistake of law – unintentional or not – would have counted heavily in multi-defendant trials such as Class A drug trials.
And so, it makes us think if one error can happen such as we are dealing to today, - what about the other miscarriages of justice that may not, as yet, be identified?
It reminds me of that old adage – justice delayed, justice denied. What about those who may have spent years fighting for damages, struggling with dwindling finances; the toll of the case weighing heavily on their relationships or their general state of health.
Mr Speaker, it will be well known in this House that even lawyers have expressed a lack of faith or confidence that justice will be done through the legal system.
For a particularly comprehensive understanding of this issue, I would refer the House to a 1999 publication by the Law Commission entitled Te Tikanga o Te Ture – Te Matauranga o nga Wahine Maori e pa ana ki tenei.
This report on Maori Women’s Access to Justice: He Putanga mo nga Wahine ki te Tika; sums up the issue of how well our justice system functions, and I quote:
“Maori women identified the dominance of colonial values and lack of Maori personnel in the legal system as the major barriers to justice. Looked at from another angle, the lack of knowledge of Maori values and culture and the lack of Maori personnel heightened their perception of injustice”.
Of course the notion that there is injustice in the system of justice, is not new, but it is always useful to consider when another opportunity presents itself – as in does in this case around abolishing the common law rule relating to co-conspirators.
How does the law work in practice?
How well does the adversarial system serve the cause of justice?
How can we ensure that the standards of decency, of integrity, of honesty and accountability apply as much to lawyers and judges as they do to expert witnesses or clients?
We have been interested, in the context of such questions, Mr Speaker, to learn about the establishment of a Legal Issues Centre at the University of Otago which is being set up to provide such a birds-eye view.
Otago’s Dean of the Faculty of Law, Professor Mark Henaghan described it as following:
“Everything about the system hinders accessibility. Even the cost of lodging an application stops many people from pursuing a claim, even where the evidence is overwhelmingly in their favour”.
The Professor has raised concerns around the monitoring and enforcement of Codes of ethics such as those stipulated by the Law Society. He has also raised the concept of alternative models of resolving disputes, an area which the Maori Party is particularly keenly interested in.
The pursuit of justice, te whainga i te tika, has always been important in Maori world views.
In Maori terms, justice recognises that kaupapa and tikanga are the first law of this land.
The Maori Party acknowledges that justice is best achieved not merely by changing the content of existing laws, but also by reconsidering, in good faith, the processes through which laws are made and the principles which underpin them.
And so we believe, if manaakitanga is to be effectively acknowledged, the mana of all peoples might be properly and respectfully acknowledged.
Mr Speaker, it is essential that the ideal of a fair and just community be established both in the structural functioning of society and in the operations of its justice system.
The Maori Party is pleased to support the Evidence Amendment Bill both in terms of rectifying the initial error – but also to remind the House of the importance of ensuring there are appropriate and responsive social conditions and legal processes to properly acknowledge the fundamental importance of a functioning democracy.
ENDS
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