Pushing 'pause' on video evidence: An analysis of the proposed amendments to s 106 of the Evidence Act 2006

This paper assesses the ramifications of the Cabinet Social Policy Committees proposals contained in the paper Amendments to the Evidence Act 2006. The Committee proposed a change to s 106 of the Evidence Act, which currently lies in favour of full disclosure of video evidence to the defence. The proposed amendments will reverse this presumption, ultimately restricting the defence’s access to the complainants video evidence. This paper will assess the validity and practicality of these proposed amendments, by assessing whether they are consistent with the New Zealand Bill of Rights Act, the equality of arms doctrine and international case law. Although the proposed amendments were made to protect vulnerable complainants, attrition rates in New Zealand show that vulnerable witnesses do not drop out of the criminal justice system just because they are fearful about their video evidence being disclosed. The attrition rates are more complex. However, this paper argues that there are still adequate safeguards in place to protect the defence’s right to a fair trial. Whilst these safeguards holdfast, any effort to protect vulnerable victims should be encouraged.